State v. Green

225 S.E.2d 170 (1976)

29 N.C. App. 574

STATE of North Carolina v. Stephen Daniel GREEN.

No. 7526SC879.

Court of Appeals of North Carolina.

June 2, 1976.

*172 Atty. Gen. Rufus L. Edmisten by Associate Atty. Elizabeth R. Cochrane, Raleigh, for the State.

Loflin & Loflin by Thomas F. Loflin, III, Durham, for defendant.

MARTIN, Judge.

Defendant contends that the court erred in hearing testimony by defendant's probation officer concerning defendant's admitted use of heroin without first conducting a voir dire examination to ascertain whether the defendant's constitutional rights had been abridged. "The Sixth Amendment, which guarantees to the accused `in all criminal prosecutions' a speedy and public trial `by an impartial jury of the state and district wherein the crime shall have been committed,' is inapposite here." State v. Braswell, 283 N.C. 332, 196 S.E.2d 185 (1973). Defendant's contention in the present case is without merit since "[a] hearing to determine whether the terms of a suspended sentence have been violated is not a `criminal prosecution' ..." State v. Braswell, supra. See also Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484.

Defendant next contends that the trial court erred in allowing into evidence and in refusing to strike testimony of the probation officer that defendant had refused to obtain regular employment and had refused to pay certain monies in violation of his probation judgment, in that such testimony amounted to a conclusion of law invading the province of the court. Upon a hearing of whether defendant wilfully breached a condition of suspension of sentence, the court is not bound by strict rules of evidence. State v. Pelley, 221 N.C. 487, 20 S.E.2d 850 (1942). As our Supreme Court noted in State v. Hoggard, 180 N.C. 678, 103 S.E. 891 (1920):

"`When judgment is suspended in a criminal action upon good behavior, or other conditions, the proceedings to ascertain whether the terms have been complied with are addressed to the reasonable discretion of the judge of the court, and do not come within the jury's province. The findings of the judge, and his judgment upon them, are not reviewable upon appeal unless there is a manifest abuse of such discretion.' (Citation omitted)."

A careful perusal of the testimony leads to the conclusion that sufficient competent evidence was introduced by the State in this hearing to sustain the court's findings of fact.

Defendant next contends the court erred in denying the motion to dismiss charges at the conclusion of the State's evidence. The evidence necessary to order *173 probation revoked is a showing by the State which reasonably satisfies the judge in the exercise of his sound discretion that defendant has violated one of the conditions of his probation. State v. Hewett, 270 N.C. 348, 154 S.E.2d 476 (1967). This assignment of error is overruled.

Defendant also contends that the court erred in finding and concluding that the probationer had violated the conditions of probation that he be of good general behavior and avoid injurious or vicious habits.

The court found as a fact that defendant has wilfully and without lawful excuse violated the terms of probation by using the drug heroin which is a violation of the condition of probation "that he be of general good behavior and that he avoid injurious or vicious habits." These findings of fact are supported in the testimony of Probation Officer Polk as follows: "That on December 20, 1973 the defendant did admit to the supervising officer that he was using the drug heroin." The use of heroin constitutes an injurious habit not only because of the drug's harmful personal effects, but also because of its tendency to deaden one's control over his actions. Defendant's fourth assignment of error is without merit and is overruled.

Defendant's fifth assignment of error is without merit and is overruled.

Defendant's sixth assignment of error relates to the court's finding that he wilfully violated the condition of his probation regarding making payments of sums of monies.

The court found as a fact the following:

"That the said defendant was capable both physically and mentally of working at gainful employment but that due to his use of heroin and other controlled substances during his period of probation, he rendered himself unable to work from time to time and that he was unable to work for at least five weeks during his period of probation as a result of his excessive use of various controlled substances, including heroin, and other controlled substances, and that this is in violation of his condition of probation that he work faithfully at suitable employment as far as possible. That at the time the defendant was placed on probation he was instructed both orally and in writing to pay into the office of the Clerk of Superior Court the sum of $50 per week for a period of five years beginning June 21, 1971, and with a like payment on or before each Monday thereafter; that no payments have been made on this account since August 1, 1973; that the defendant receives a monthly disability check in the approximate amount of $200.00 and that the court finds that the defendant has had no justification for failing to make these payments during some of the period of time between August 1, 1973, and the present period of time in which he contends that he was making no payments as a result of the direction of a judge of the Superior Court; that he was directed by his probation officer to resume the making of these payments in late December, 1973, and that since that time he has wilfully failed to make any payments although he was financially able to do so; that this is in violation of his special condition of probation which states `that he pay into the office of the Clerk of Superior Court of Mecklenburg County the sum of $50.00 on or before the 21st day of June, 1971, and a like amount on or before each Monday thereafter for a period of five years.'"

Defendant asserts that the condition which he has broken is invalid because it is unreasonable or is imposed for an unreasonable length of time. He cites State v. Caudle, 276 N.C. 550, 173 S.E.2d 778 (1970).

The constitutional right defendant claims has been breached is the use of the criminal process to enforce a civil obligation. The court in Caudle recognized that a condition which did indeed use the criminal process for forced payment of civil debts was unconstitutional and therefore, per se unreasonable. The Court did, however, define the limits of its holding:

*174 "To suspend a sentence of imprisonment for a criminal act, however just the sentence may be per se, on condition that the defendant pay obligations unrelated to such criminal act, however justly owing, is a use of the criminal process to enforce the payment of a civil obligation." (Emphasis supplied). State v. Caudle, supra.

In this case, defendant was ordered to pay a sum to the PARENTS of the person he was convicted of killing. This requirement does not extend into the area prohibited by Caudle, supra, because it is related to the criminal act committed by defendant. The parents are certainly persons injured by defendant's act.

Defendant's remaining assignment of error is without merit and is overruled.

In determining whether the evidence warrants the revocation of probation or a suspended sentence, the credibility of the witnesses and the evaluation and weight of their testimony are for the judge. State v. Hewett, supra. In the present case, there is enough competent evidence in the record to support the court's crucial findings that the defendant has wilfully violated each of the three valid conditions upon which his sentence was suspended. These findings of fact support the judgment revoking probation and putting the prison sentence into effect. The order of the court is

Affirmed.

BRITT and HEDRICK, JJ., concur.