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  "name": "STATE OF NORTH CAROLINA v. THOMAS EDWARD DALTON",
  "name_abbreviation": "State v. Dalton",
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    "judges": [
      "Judges Phillips and Parker concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. THOMAS EDWARD DALTON"
    ],
    "opinions": [
      {
        "text": "WELLS, Judge.\nDefendant 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.\nDefendant first assigns as error the trial court\u2019s permitting the State to cross-examine him regarding his comprehension of his Miranda rights. Defendant argues that the State\u2019s purpose in pursuing this line of questioning was to point out to the jury that, as a former police officer, defendant\u2019s 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.\nA criminal defendant has a right to remain silent. Miranda v. Arizona, 384 U.S. 436 (1966). The due process clause of the Fourteenth Amendment to the United States Constitution bars the use, for impeachment purposes, of a defendant\u2019s post-arrest silence. Doyle v. Ohio, 426 U.S. 610 (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 \u201cthe trial court has permitted specific inquiry or argument respecting the defendant\u2019s post-Miranda silence.\u201d Greer v. Miller, 483 U.S. 756, 107 S.Ct. 3102 (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 because the officer \u201cbelieved [the victim], and I felt at that time that anymore that I said to him would not be in my benefit.\u201d The record also shows that the State made no specific inquiry respecting defendant\u2019s post-Miranda silence. Rather, the State\u2019s cross-examination regarding defendant\u2019s understanding of his Miranda rights was clearly directed, not to defendant\u2019s exercise of such rights, but to defendant\u2019s waiver of those rights in voluntarily making his statement to the investigating officer. As the United States Supreme Court has stated:\nDoyle 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.\nAnderson v. Charles, 447 U.S. 404 (1980) (Per Curiam). We thus conclude that the State\u2019s cross-examination of defendant comported with the applicable constitutional requirements. This assignment of error is overruled.\nDefendant next assigns as error the State\u2019s cross-examination of him regarding his prior convictions and the State\u2019s 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:\n(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.\nN.C. Gen. Stat. \u00a7 8C-1, Rule 609(a) (1988). To be admissible, the conviction must have occurred within the previous ten years. Id., Rule 609(b).\nTo 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 \u201cother charges arising out of that.\u201d On cross-examination, defendant was asked the following questions without objection and gave the indicated answers:\nQ, Isn\u2019t it true that within the past ten years, you pled guilty or was [sic] convicted of nine different felonies up in Peoria Heights, Illinois?\nA. I pled nolo contendr\u00e9 [sic] to whatever charges the department wished to put against me at that time. I didn\u2019t debate any point.\nQ. As a result of pleading nolo contendr\u00e9 [sic], you received a sentence, didn\u2019t you?\nA. Yes, sir, I did.\nWhen the district attorney began to further pursue defendant\u2019s 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 \u201cany matter or any statement made about [a] nolo contendere plea\u201d and took the further precaution of asking the jury whether they could follow his instructions and \u201cdisregard any comment based on that.\u201d By a show of hands, the jury indicated a positive response.\nOn further cross-examination, defendant specifically denied that he had pled guilty to the Illinois charges. In its rebuttal, the State was allowed, over defendant\u2019s 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.\nDefendant first argues in support of this assignment of error that the State\u2019s use of defendant\u2019s prior convictions was improper in that the State did not establish that the convictions were punishable by more than sixty days\u2019 confinement as required by Rule 609(a). It is true that the records of defendant\u2019s 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\u2019s 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.\nDefendant 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\u2019 denial of a prior conviction on cross-examination could not be contradicted by the introduction of extrinsic evidence. Brandis on North Carolina Evidence \u00a7 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\u2019s denial. Therefore, defendant\u2019s objection on this ground to the admission of this evidence during the State\u2019s rebuttal was properly overruled by the court.\nBy his third assignment of error, defendant challenges the court\u2019s 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, \u201cexcept as may be necessary to develop [the witness\u2019] testimony.\u201d N.C. Gen. Stat. \u00a7 8C-1, Rule 611(c) (1988). The Rules of Evidence, however, also provide that:\nThe 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.\nId., 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\u2019s 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.\nDefendant\u2019s 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\u2019s objections to the State\u2019s 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. \u00a7 15A-1442 (1988).\nFinally, defendant assigns as error the trial court\u2019s weighing of aggravating 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. \u00a7 14-202.1 (1986). The presumptive sentence for this offense is three years\u2019 imprisonment. Id. \u00a7 15A-1340.4 (1988). The maximum sentence allowable is ten years\u2019 imprisonment. Id. \u00a7 14-1.1 (1986). Following the sentencing hearing, the trial court found two factors in mitigation, namely, defendant\u2019s honorable discharge from military service and his good character at work. Against these, the court weighed one factor in aggravation \u2014 defendant\u2019s prior convictions \u2014 and imposed a sentence of seven years\u2019 imprisonment.\nDefendant 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\u2019 confinement as required by N.C. Gen. Stat. \u00a7 15A-1340.4(a)(l). 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. \u00a78 Illinois Corrections Code, Para. 1005-8-1. We therefore reject this argument.\nDefendant 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\u2019s unfavorable impression of defendant\u2019s 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\u2019s sentence on anything other than the prior convictions which it found as an aggravating factor under N.C. Gen. Stat. \u00a7 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).\nFor the reasons stated, we find\nNo error.\nJudges Phillips and Parker concur.",
        "type": "majority",
        "author": "WELLS, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Lacy H. Thornburg, by Assistant Attorney General LaVee Hamer Jackson, for the State.",
      "Bridges, Morgan, and Gilbert, P.A., by Forrest Donald Bridges, for defendant-appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. THOMAS EDWARD DALTON\nNo. 8827SC1414\n(Filed 17 October 1989)\n1. Criminal Law \u00a7 75.10 (NCI3d)\u2014 defendant\u2019s comprehension of Miranda rights \u2014 cross-examination proper\nThe State\u2019s cross-examination of defendant regarding his comprehension of his Miranda rights did not violate his constitutional right to remain silent since the cross-examination was not directed to defendant\u2019s exercise of such rights but to his waiver of those rights in voluntarily making his statement to the investigating officer.\nAm Jur 2d, Witnesses \u00a7\u00a7 468, 471-476, 492, 495, 497.\n2. Criminal Law \u00a7 86.3 (NCI3d)\u2014 credibility of defendant \u2014 evidence of prior convictions admissible\nThere was no merit to defendant\u2019s contention that the State\u2019s use of his prior convictions was improper in that the State did not establish that the convictions were punishable by more than sixty days\u2019 confinement, since defendant first brought his prior convictions to the jury\u2019s attention in his own testimony; without objection on cross-examination defendant admitted his prior convictions; and when defendant denied that he had pled guilty to the charges against him in another state, 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.\nAm Jur 2d, Witnesses \u00a7\u00a7 492, 525, 569 et seq.\n3. Criminal Law \u00a7 86.3 (NCI3d)\u2014 denial of prior conviction\u2014 record of prior conviction admissible in contradiction\nA witness\u2019s denial of a prior conviction on cross-examination may be contradicted by introduction of the record of the prior conviction. N.C.G.S. \u00a7 8C-1, Rule 609(a).\nAm Jur 2d, Evidence \u00a7\u00a7 320-333.\n4. Criminal Law \u00a7 87.1 (NCI3d)\u2014 taking indecent liberties with child \u2014fifteen-year-old prosecuting witness \u2014 leading questions proper\nIn a prosecution for taking indecent liberties with a child the trial court did not err in allowing the State to ask leading questions of the fifteen-year-old prosecuting witness on direct examination.\nAm Jur 2d, Witnesses \u00a7\u00a7 429-431.\n5. Criminal Law \u00a7 1079 (NCI4th)\u2014 two mitigating factors \u2014 one aggravating factor \u2014 severity of sentence\nIn a prosecution for taking indecent liberties with a child, the trial court did not err in finding in mitigation defendant\u2019s honorable discharge from military service and his character at work, finding in aggravation defendant\u2019s prior convictions, and imposing a sentence of seven years\u2019 imprisonment rather than the presumptive sentence of three years\u2019 imprisonment.\nAm Jur 2d, Criminal Law \u00a7\u00a7 598, 599.\nAppeal by defendant from Sitton, Claude S., Judge. Judgment entered 18 August 1988 in CLEVELAND County Superior Court. Heard in the Court of Appeals 29 August 1989.\nDefendant was charged by indictment with the offenses of second-degree rape, second-degree sexual offense, and taking indecent liberties with a child. The evidence at trial tended to establish that defendant had recently moved to North Carolina from Nebraska to take employment with the Cleveland County Mental Health Department. Defendant\u2019s mother and teenage daughter resided with him. On 12 December 1987, the victim, a fourteen-year-old girl, was at defendant\u2019s home to spend the night with defendant\u2019s daughter. They spent the evening watching television while defendant was away at a local bar. Sometime after midnight defendant returned. The girls were still awake. Defendant prepared two rounds of rum and coke for each of them. Thereafter, they all laid upon the floor to watch more television. Defendant\u2019s daughter soon fell asleep, and defendant then made sexual advances upon the victim.\nThe jury acquitted defendant on the charges of second-degree rape and second-degree sexual offense, but convicted him on the charge of taking indecent liberties with a child. Following the sentencing hearing, the court imposed a term of seven years\u2019 imprisonment. Defendant appeals.\nAttorney General Lacy H. Thornburg, by Assistant Attorney General LaVee Hamer Jackson, for the State.\nBridges, Morgan, and Gilbert, P.A., by Forrest Donald Bridges, for defendant-appellant."
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