State v. Mallory

• Decision Date: 23 March 1978
• Docket Number: No. 20653,20653
• Citation: 242 S.E.2d 693,270 S.C. 519
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Frankie Lee MALLORY, Appellant.

Page 693

242 S.E.2d 693

270 S.C. 519

The STATE, Respondent, v.Frankie Lee MALLORY, Appellant.

No. 20653.

Supreme Court of South Carolina.

March 23, 1978.

Public Defenders T. Louis Cox, Michael Spears and J. Stephen Schmutz, Spartanburg, for appellant.

Atty. Gen. Daniel E. McLeod and Asst. Attys.Gen. Brian P. Gibbes and Robert N. Wells, Jr., Columbia, and Sol.John H. Nolen, Spartanburg, for respondent.

LEWIS, Chief Justice:

Appellant seeks a reversal of his conviction and sentence to twenty (20) years for burglary and assault and battery of a high and aggravated nature, upon the grounds that the trial court erred (1) in permitting the solicitor to cross-examine him relative to a prior juvenile criminal record, (2) in refusing to submit simple assault and battery for the jury's consideration as a lesser included offense in the charge of assault and battery of a high and aggravated nature, and (3) in imposing an excessive sentence.We find no error and affirm.

Appellant was sixteen (16) years of age when the crime was committed and seventeen (17) at the time of trial.He testified and, on direct examination, admitted involvement in some previous unspecified trouble with police officers.Later, on cross-examination, the Solicitor, in attempting to elicit the nature of appellant's prior trouble with the law, asked appellant if he had been previously convicted of armed robbery.The court immediately, upon objection, interrupted and appellant was not permitted to answer the question.There was no further reference in the examination of appellant to his prior criminal record.

Appellant contends that the refusal of the trial judge to grant a timely motion for a mistrial, because of the reference in cross-examination to the prior armed robbery conviction, was error.He argues that Sections 14-21-30and14-21-620 of the 1976 Code of Laws prohibit the use of a defendant's prior juvenile criminal record against him in a subsequent criminal proceeding.It is also contended that appellant did not have the benefit of counsel during the alleged prior juvenile conviction, as now required by In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527, and that a prior conviction, rendered without such fundamental due process safeguards, would be invalid and, therefore, inadmissible.

Pertinent here, Section 14-21-30 provides that the official records of the Family Courts shall be open to inspection only by consent of the judge to persons having a legitimate interest therein; and Section 14-21-620 states that:

No adjudication by the court of the status of any child shall be deemed a conviction, nor shall such adjudication operate to impose any of the civil disabilities ordinarily resulting from conviction . . . The disposition made of a child, or any evidence given in the court, shall not operate to disqualify the child in any future civil service application or appointment.

The foregoing sections contain no direct prohibition against the use of a defendant's juvenile record to impeach him in a later criminal prosecution, and no reason appears to require such construction.The North Carolina Supreme Court, faced with language similar to that contained in our Section 14-21-620, supra, has soundly held that, whether a defendant's juvenile offense was labeled an "adjudication or conviction," it could be used against him for impeachment purposes in a subsequent criminal trial, if "he had been found guilty of conduct which, if committed by an adult, would be criminal."State v. Miller, 281 N.C. 70, 187 S.E.2d 729.Courts in some jurisdictions have reached different results based largely upon local statutes materially different from those with which we are here concerned.These cases are collected in an exhaustive annotation in 63 A.L.R.3d 1112.

However, a contrary construction of our statutes would not aid appellant in this case because he would have waived any rights under the statute by first opening the subject of his prior trouble with the officers.See cases cited in Section 5(b), 63 A.L.R.3d at page 1135.This is in accord with the general principle that a subject opened on direct examination may be developed and explored on cross-examination.

Appellant bases his reliance upon In Re Gault, supra, on the appellant's alleged lack of counsel at the time of his conviction of the prior juvenile offense.The short...