{
  "id": 8556675,
  "name": "STATE OF NORTH CAROLINA v. STEPHEN DANIEL GREEN",
  "name_abbreviation": "State v. Green",
  "decision_date": "1976-06-02",
  "docket_number": "No. 7526SC879",
  "first_page": "574",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "year": 1967,
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      "cite": "270 N.C. 348",
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      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "year": 1920,
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    {
      "cite": "180 N.C. 678",
      "category": "reporters:state",
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    {
      "cite": "20 S.E. 2d 850",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1942,
      "opinion_index": 0
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    {
      "cite": "221 N.C. 487",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "year": 1942,
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    {
      "cite": "408 U.S. 471",
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      "cite": "196 S.E. 2d 185",
      "category": "reporters:state_regional",
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      "year": 1973,
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    {
      "cite": "283 N.C. 332",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "year": 1973,
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  "last_updated": "2023-07-14T16:29:22.308082+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Britt and Hedrick concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. STEPHEN DANIEL GREEN"
    ],
    "opinions": [
      {
        "text": "MARTIN, Judge.\nDefendant contends that the court erred in hearing testimony by defendant\u2019s probation officer concerning defendant\u2019s admitted use of heroin without first conducting a voir dire examination to ascertain whether the defendant\u2019s constitutional rights had been abridged. \u201cThe Sixth Amendment, which guarantees to the accused \u2018in all criminal prosecutions\u2019 a speedy and public trial \u2018by an impartial jury of the state and district wherein the crime shall have been committed,\u2019 is inapposite here.\u201d State v. Braswell, 283 N.C. 332, 196 S.E. 2d 185 (1973). Defendant\u2019s contention in the present case is without merit since \u201c[a] hearing to determine whether the terms of a suspended sentence have been violated is not a \u2018criminal prosecution\u2019 . . . . \u201d State v. Braswell, supra. See also Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed. 2d 484.\nDefendant 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) :\n\u201c \u2018When 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\u2019s 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.\u2019 (Citation omitted.)\u201d\nA 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\u2019s findings of fact.\nDefendant next contends the court erred in denying the motion to dismiss charges at the conclusion of the State\u2019s evidence. The evidence necessary to order 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.\nDefendant 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.\nThe court found as a fact that defendant has wilfully and without lawful execuse violated the terms of probation by using the drug heroin which is a violation of the condition of probation \u201cthat he be of general good behavior and that he avoid injurious or vicious habits.\u201d These findings of fact are supported in the testimony of Probation Officer Polk as follows: \u201cThat on December 20 1973 the defendant did admit to the supervising officer that he was using the drug heroin.\u201d The use of heroin constitutes an injurious habit not only because of the drug\u2019s harmful personal effects, but also because of its tendency to deaden one\u2019s control over his actions. Defendant\u2019s fourth assignment of error is without merit and is overruled.\nDefendant\u2019s fifth assignment of error is without merit and is overruled.\nDefendant\u2019s sixth assignment of error relates to the court\u2019s finding that he wilfully violated the condition of his probation regarding making payments of sums of monies.\nThe court found as a fact the following:\n\u201cThat 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.\nThat 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 \u2018that 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.\u2019 \u201d\nDefendant 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).\nThe 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:\n\u201cTo 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 ...\u201d (Emphasis supplied). State v. Caudle, supra.\nIn 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\u2019s act.\nDefendant\u2019s remaining assignment of error is without merit and is overruled.\nIn 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\u2019s 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\nAffirmed.\nJudges Britt and Hedrick concur.",
        "type": "majority",
        "author": "MARTIN, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Associate Attorney Elizabeth R. Cochrane, for the State.",
      "Loflin and Loflin, by Thomas F. Loflin III, for defendant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. STEPHEN DANIEL GREEN\nNo. 7526SC879\n(Filed 2 June 1976)\n1. Criminal Law \u00a7 143\u2014 probation revocation \u2014 extrajudicial admission by defendant \u2014 no necessity for voir dire\nThe trial court in a probation revocation hearing did not err in the admission of a probation officer\u2019s testimony that defendant had admitted using heroin without first conducting a voir dire examination to ascertain whether defendant\u2019s constitutional rights had been violated since a probation revocation hearing is not a criminal prosecution.\n2. Criminal Law \u00a7 143\u2014 probation revocation \u2014 probation officer\u2019s testimony as to violations of probation\nThe trial court in a probation revocation hearing did not err in the admission of a probation officer\u2019s testimony that defendant had refused to obtain regular employment and had refused to pay certain monies in violation of his probation judgment.\n3. Criminal Law \u00a7 143\u2014 probation revocation \u2014 proof required\nThe evidence necessary to order 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.\n4. Criminal Law \u00a7 143\u2014 use of heroin \u2014 violation of probation condition \u2014 injurious habit\nThe evidence supported the court\u2019s finding that defendant had used heroin which was in violation of a condition of his probation that he avoid injurious or vicious habits.\n5. Criminal Law \u00a7 143; Constitutional Law \u00a7 21\u2014 probation condition \u2014 payment of money by defendant to deceased\u2019s parents\nA probation condition requiring defendant to pay a sum of money to the parents of the person he was convicted of killing does not constitute use of the criminal process to enforce a civil obligation and is valid.\nAppeal by defendant from Ervin, Judge. Judgment entered 21 March 1974 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 17 February 1976.\nDefendant was indicted for murder and convicted of manslaughter at the 11 June 1971 Session of Mecklenburg Superior Court. In an order signed by the trial court, a twelve-year prison sentence was suspended and the defendant was placed on probation for a period of five years. Among the conditions of the probation were the following: (1) that defendant avoid injurious or vicious habits; (2) that defendant work faithfully at suitable, gainful employment as far as possible and save his earnings above his reasonably necessary expenses; and (3) that defendant pay into the office of the Clerk of Superior Court of Mecklenburg County the sum of $50.00 on or before the 21st of June, 1971, and a like amount on or before each Monday thereafter for a period of five years. The monies collected under the last provision were to be given to the mother and father of the deceased person whom defendant was convicted of killing.\nIn his report of defendant\u2019s conduct and activities, the probation officer informed the court that defendant had violated three conditions of his probation. The court conducted a hearing at which the probation officer testified that defendant admitted using heroin. Further, the probation officer testified that although defendant was able to work, he had refused to find regular employment and had fallen behind in his weekly payments.\nThe defendant offered testimony tending to show that he had stopped using drugs, that he had worked fairly regularly, and that he had stopped making the $50.00 payments because he was required by the army to travel at his own expense to Massachusetts to be fitted for a glass eye. During the two to three weeks that he was in Massachusetts, he was not employed. For failure to make the payments, he was taken before Judge Grist. From the record, it appears defendant was told by his probation officer to resume the payments in the Fall of 1973, but that there was some confusion as to whether the amount of the payments was to be reduced. Defendant testified that, \u201c[m]y impression was that I shouldn\u2019t make any more payments until I was informed of what the exact amount would be. That is why I did not make any more payments.\u201d\nThe court made detailed findings of fact from which it concluded that defendant had violated the terms of probation in that (1) he was using heroin, (a violation of the conditions that he be of general good behavior and that he avoid injurious or vicious habits), (2) he had failed to secure regular employment although capable to do so, (a violation of the condition that he work faithfully at suitable employment as far as possible), and (3) he had wilfully failed to make the $50.00 weekly payments since December of 1973, (a violation of the condition that he pay into the clerk of court $50.00 per week). Therefore, in its discretion, the court ordered defendant\u2019s probation revoked and his twelve-year prison sentence into immediate effect. Certiorari was allowed 10 July 1975.\nAttorney General Edmisten, by Associate Attorney Elizabeth R. Cochrane, for the State.\nLoflin and Loflin, by Thomas F. Loflin III, for defendant."
  },
  "file_name": "0574-01",
  "first_page_order": 606,
  "last_page_order": 611
}