State v. Miller

• Court: North Carolina Supreme Court
• Writing for the Court: BOBBITT
• Citation: State v. Miller, 281 N.C. 70, 187 S.E.2d 729 (N.C. 1972)
• Decision Date: 12 April 1972
• Docket Number: No. 24,24
• Parties: STATE of North Carolina v. Ronald Lee MILLER.

Page 729

187 S.E.2d 729

281 N.C. 70

STATE of North Carolina v. Ronald Lee MILLER.

No. 24.

Supreme Court of North Carolina.

April 12, 1972.

Atty. Gen. Robert Morgan and Asst. Attys. Gen. William W. Melvin and William B. Ray for the State.

Donald K. Tisdale, Winston-Salem for defendant appellant.

BOBBITT, Chief Justice.

The assignments of error relating to the denial of defendant's motions for nonsuit have no merit. Uncontradicted evidence offered by the State tended to show that a young Negro male feloniously and burglariously broke into and entered the occupied home of Mrs. Styles during the night of December 20, 1970, with intent to commit the felony of rape. Too, Mrs. Styles's positive testimony, apart from corroborating circumstances, was amply sufficient to support a finding that defendant is the person who committed the crime.

Defendant excepted to and assigns as error (1) the admission of Mrs. Styles's testimony in which she identified defendant as the person who committed the crime, and (2) the admission of Sgt. Burke's testimony as to what occurred on February 9, 1971, at Western Electric, when Mrs. Styles identified one of the twelve photographs then shown her as the photograph of the young Negro male who committed the crime.

Defendant's objection to Mrs. Styles's identification testimony is based on his contention that her testimony was tainted because of illegality in the photographic identification on February 9, 1971. He contends the photographic identification was illegal because the procedure was 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247, 1253 (1968).

Before admitting the testimony, the court conducted two Voir dire hearings, the first to consider the admissibility of Mrs. Styles's testimony and the second to consider the admissibility of Sgt. Burke's testimony. At these hearings, the only testimony, which was given in the absence of the jury, was that of Mrs. Styles and of Sgt. Burke, respectively. After each Voir dire hearing, the court made findings of fact which are fully supported by uncontradicted evidence found by the court to be clear and convincing. In each instance, the court found that the identification procedure on February 9, 1971, was Not 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.' The court further found that Mrs. Styles' identification testimony before the jury was based solely on her observation of the person in her room on the night of December 20, 1970, completely independent of other factors.

Although defendant noted a general exception to the findings made by the court after each Voir dire hearing, no exception or assignment of error is addressed to any specific factual finding or legal conclusion.

On February 9, 1971, defendant had not been arrested or charged with any criminal offense. The photographs were shown Mrs. Styles in the course of Sgt. Burke's investigation.

We conclude that defendant's objections to the testimony of Mrs. Styles and of Sgt. Burke were properly overruled and that assignments of error relating thereto have no merit.

Defendant excepted to and assigns as error the overruling of his objections to questions asked him on cross-examination as to whether he had been convicted of specific unrelated criminal offenses. In response, defendant testified he had been convicted of house breaking on August 27, 1967, and of mail fraud on an unspecified date.

For purposes of impeachment, a witness, including the defendant in a criminal case, is subject to cross-examination as to his convictions for crime. Ingle v. Roy Stone Transfer Corp., 271 N.C. 276, 279--280, 156 S.E.2d 265, 268--269 (1967), and cases there cited; State v. Williams, 279 N.C. 663, 669, 185 S.E.2d 174, 178 (1971).

Defendant contends the foregoing rule should not apply to the cross-examination of a defendant with reference to whether he had been found guilty of conduct committed by him while a juvenile which, if committed by an adult, would have constituted a conviction of crime. The question directly presented on this appeal is not whether an adult witness may be cross-examined with reference to convictions or adjudications of guilt of criminal conduct committed years before when he was a juvenile. Here the fifteen-year-old defendant was on trial for first degree burglary allegedly committed by him when he was fourteen. By electing to testify, defendant put in issue his credibility as a witness. The question is whether it was permissible to cross-examine a juvenile with reference to his prior convictions or adjudications of guilt of prior conduct which, if committed by an adult, would be accurately denominated criminal offenses.

As a basis for his contention that the general rule should not apply, defendant quotes Sections 24 and 29(6), Article 2, Chapter 110 of the General Statutes, as these sections appear in Volume 3A (Replacement 1966). However, except for G.S. § 110--25.1 and G.S. § 110--39, Article 2 of Chapter 110 was rewritten by Section 1 of Chapter 911 of the Session Laws of 1969. The provisions formerly codified as Sections 24 and 29(6) no longer appear in Article 2 of Chapter 110. As set forth below, the system of 'Juvenile Courts' formerly provided by Article 2 of Chapter 110 has been superseded.

Article 23, Chapter 7A, as now codified in Volume (Replacement 1969) of the General Statutes of North Carolina, was rewritten by Section 2 of Chapter 911 of the Session Laws of 1969. Article 23 is captioned, 'Jurisdiction and Procedure Applicable to Children.' It vests exclusive, original jurisdiction over any case involving a child in the district court judge and provides in detail for procedures in the district court in cases...