State v. Dalton

384 S.E.2d 573 (1989)

STATE of North Carolina v. Thomas Edward DALTON.

No. 8827SC1414.

Court of Appeals of North Carolina.

October 17, 1989.

*574 Atty. Gen. Lacy H. Thornburg by Asst. Atty. Gen. LaVee Hamer Jackson, Raleigh, for the State.

Bridges, Morgan, and Gilbert, P.A. by Forrest Donald Bridges, Shelby, for defendant-appellant.

WELLS, Judge.

Defendant has brought forward four assignments of error challenging the mode and subject matter of examination at trial, one assignment of error challenging the jury instructions, and one assignment of error challenging the sentence imposed. We find no error.

Defendant first assigns as error the trial court's permitting the State to cross-examine him regarding his comprehension of his Miranda rights. Defendant argues that the State's purpose in pursuing this line of questioning was to point out to the jury that, as a former police officer, defendant's exercise of his right to remain silent was evidence of guilt. Defendant contends that his rights under the Fourteenth Amendment to the United States Constitution were thereby violated. We disagree.

A criminal defendant has a right to remain silent. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The due process clause of the Fourteenth Amendment to the United States Constitution bars the use, for impeachment purposes, of a defendant's post-arrest silence. Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976); State v. Hoyle, 325 N.C. 232, 382 S.E.2d 752 (1989). The United States Supreme Court has, however, limited the application of Doyle to those cases in which "the trial court has permitted specific inquiry or argument respecting the defendant's post-Miranda silence." Greer v. Miller, 483 U.S. 756, 107 S. Ct. 3102, 97 L. Ed. 2d 618 (1987) (Emphasis added.) In this case, the record discloses that defendant, on direct examination, testified that he voluntarily gave a statement to the investigating officer regarding the charges against him, after receiving the required Miranda warnings. Defendant further testified on direct examination that he ended his statement *575 because the officer "believed [the victim], and I felt at that time that anymore that I said to him would not be in my benefit." The record also shows that the State made no specific inquiry respecting defendant's post-Miranda silence. Rather, the State's cross-examination regarding defendant's understanding of his Miranda rights was clearly directed, not to defendant's exercise of such rights, but to defendant's waiver of those rights in voluntarily making his statement to the investigating officer. As the United States Supreme Court has stated:

Doyle does not apply to cross-examination that merely inquires into [prior statements]. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all.

Anderson v. Charles, 447 U.S. 404, 100 S. Ct. 2180, 65 L. Ed. 2d 222 (1980) (Per Curiam). We thus conclude that the State's cross-examination of defendant comported with the applicable constitutional requirements. This assignment of error is overruled.

Defendant next assigns as error the State's cross-examination of him regarding his prior convictions and the State's introduction on rebuttal consisting of public records of these prior convictions. Impeachment by evidence of prior convictions is governed by Rule 609 of the North Carolina Rules of Evidence. That Rule provides:

(a) General rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime punishable by more than 60 days confinement shall be admitted if elicited from him or established by public record during cross-examination or thereafter.

N.C.Gen.Stat. § 8C-1, Rule 609(a) (1988). To be admissible, the conviction must have occurred within the previous ten years. Id., Rule 609(b).

To put this issue in appropriate context, we first note that in his direct examination, defendant testified that he had been previously convicted in Peoria Heights, Illinois of conduct unbecoming a police officer and "other charges arising out of that." On cross-examination, defendant was asked the following questions without objection and gave the indicated answers:

Q. Isn't it true that within the past ten years, you pled guilty or was [sic] convicted of nine different felonies up in Peoria Heights, Illinois? A. I pled nolo contendre [sic] to whatever charges the department wished to put against me at that time. I didn't debate any point. . . . . . Q. As a result of pleading nolo contendre [sic], you received a sentence, didn't you? A. Yes, sir, I did.

When the district attorney began to further pursue defendant's nolo contendere plea, he was interrupted by the court and after a bench conference, the district attorney agreed not to pursue that line of questioning. The trial court then instructed the jury not to consider "any matter or any statement made about [a] nolo contendere plea" and took the further precaution of asking the jury whether they could follow its instructions and "disregard any comment based on that." By a show of hands, the jury indicated a positive response.

On further cross-examination, defendant specifically denied that he had pled guilty to the Illinois charges. In its rebuttal, the State was allowed, over defendant's objection, to introduce public records from the Circuit Court of the Tenth Judicial Circuit of Illinois in case number 80CF2236 which showed that defendant had entered a guilty plea to seven counts of official misconduct and two counts of theft on 14 July 1980, and that on 2 September 1980 he was sentenced to probation for a period of thirty months.

Defendant first argues in support of this assignment of error that the State's use of defendant's prior convictions was improper in that the State did not establish that the convictions were punishable by *576 more than sixty days' confinement as required by Rule 609(a). It is true that the records of defendant's prior convictions do not specifically disclose that the offenses were punishable by confinement of greater than sixty days. We nevertheless reject this argument. First, we again note that defendant first brought his prior convictions to the jury's attention in his own testimony. Second, we note that, without objection on cross-examination, defendant admitted his prior convictions. Third, we are persuaded that when defendant denied that he had pled guilty to the charges against him in Illinois, the State, as a basis for attacking his credibility, was entitled to show on rebuttal that defendant had in fact pled guilty to those charges.

Defendant further argues in support of this assignment of error that the State was bound by his answer on cross-examination denying his guilty pleas in the 1980 action and therefore could not properly introduce the public records of his prior convictions in rebuttal. We disagree. Prior to the adoption of the North Carolina Rules of Evidence, a witness' denial of a prior conviction on cross-examination could not be contradicted by the introduction of extrinsic evidence. Brandis on North Carolina Evidence § 112 (1982). The official commentary to the rules makes it clear that Rule 609(a) was intended to change the former practice and allow the record of the prior conviction to be introduced, regardless of the witness' denial. Therefore, defendant's objection on this ground to the admission of this evidence during the State's rebuttal was properly overruled by the court.

By his third assignment of error, defendant challenges the court's permitting the State to ask leading questions of the prosecuting witness on direct examination. Under Rule 611 of the North Carolina Rules of Evidence, leading questions are not normally permissible on direct examination, "except as may be necessary to develop [the witness'] testimony." N.C.Gen. Stat. § 8C-1, Rule 611(c) (1988). The Rules of Evidence, however, also provide that:

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

Id., Rule 611(a). It is within the discretionary power of the trial court to allow leading questions on direct examination, and rulings on the use of such questions are reversible only for an abuse of discretion. State v. Riddick, 315 N.C. 749, 340 S.E.2d 55 (1986). The record discloses that at the time of the crime the prosecuting witness was only fourteen years old. She was fifteen years old at the time of trial. Her testimony, in open court, pertained to sexual matters of a delicate, sensitive, and embarrassing nature. It is well-established that leading questions on direct examination are permissible under such circumstances to develop the witness' testimony. State v. Oliver, 85 N.C.App. 1, 354 S.E.2d 527, cert. denied, 320 N.C. 174, 358 S.E.2d 64 (1987). We therefore find no abuse of discretion and overrule this assignment of error.

Defendant's fourth and fifth assignments of error are considered in tandem. Defendant asserts that the trial court erred both in allowing the State to question defendant and his mother regarding a female friend of defendant and by emphasizing in the jury instructions the use of alcohol by the prosecuting witness. The record establishes that as to the former contention, all of defendant's objections to the State's line of questioning were sustained; as to the latter contention, the instructions complained of pertained to the charge of second-degree sexual offense, of which defendant was acquitted. Because defendant has not demonstrated error, neither of these assignments constitutes a proper ground for appeal, and they are both overruled. N.C.Gen.Stat. § 15A-1442 (1988).

Finally, defendant assigns as error the trial court's weighing of aggravating *577 and mitigating factors under the Fair Sentencing Act in determining the sentence imposed. Defendant was convicted of taking indecent liberties with a child, a Class H felony. N.C.Gen.Stat. § 14-202.1 (1986). The presumptive sentence for this offense is three years' imprisonment. Id. § 15A-1340.4 (1988). The maximum sentence allowable is ten years' imprisonment. Id. § 14-1.1 (1986). Following the sentencing hearing, the trial court found two factors in mitigation, namely, defendant's honorable discharge from military service and his good character at work. Against these, the court weighed one factor in aggravation defendant's prior convictions and imposed a sentence of seven years' imprisonment.

Defendant first argues that the sentence is improper because there was no evidence introduced that the prior convictions carried a punishment of more than sixty days' confinement as required by N.C.Gen.Stat. § 15A-1340.4(a)(1). As we noted earlier in this opinion, defendant admitted during the trial that he had been convicted of nine different felonies in Illinois. We take judicial notice that under Illinois law no felony is punishable by a sentence of less than a term of one year. 38 Illinois Corrections Code, Para. 1005-8-1. We therefore reject this argument.

Defendant argues alternatively in support of this assignment of error that the court increased his sentence, not as a result of the prior convictions as a statutory aggravating factor, but rather as a result of the court's unfavorable impression of defendant's inconsistent testimony regarding his pleas in the former action. This argument is wholly without merit. The record of the sentencing hearing is devoid of even a hint that the court based its decision to increase defendant's sentence on anything other than the prior convictions which it found as an aggravating factor under N.C. Gen.Stat. § 15A-1340.4. Defendant has demonstrated no abuse of discretion; therefore, we will not disturb the balance struck by the trial court. State v. Daniels, 319 N.C. 452, 355 S.E.2d 136 (1987).

For the reasons stated, we find

No error.

PHILLIPS and PARKER, JJ., concur.