{
  "id": 8562312,
  "name": "IN THE MATTER OF: PHILLIP BYERS",
  "name_abbreviation": "In re Byers",
  "decision_date": "1978-06-06",
  "docket_number": "No. 42",
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    "name": "Supreme Court of North Carolina"
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  "last_updated": "2023-07-14T14:50:00.775554+00:00",
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  "casebody": {
    "judges": [],
    "parties": [
      "IN THE MATTER OF: PHILLIP BYERS"
    ],
    "opinions": [
      {
        "text": "PER CURIAM.\nIn the Court of Appeals, respondent assigned as error the denial of his motion to dismiss for lack of evidence. He did not raise that issue before this Court and ordinarily this assignment of error would be deemed to be abandoned. However, in reviewing a decision of the Court of Appeals, it is our duty to determine the correctness of that decision and in the exercise of our supervisory powers we may pass upon any relevant issue, even when that issue is not properly presented. See, State v. Williams, 274 N.C. 328, 163 S.E. 2d 353 (1968). We elect to consider respondent\u2019s motion to dismiss.\nA motion to dismiss has essentially the same legal effect as a motion for judgment as of nonsuit. Such motion is properly denied when there is substantial evidence of each element of the crime with which an accused is charged and like evidence that the accused was the perpetrator or one of the perpetrators of that crime. State v. Goines, 273 N.C. 509, 160 S.E. 2d 469 (1968). Similarly, a motion to dismiss a petition seeking to declare a juvenile a delinquent is properly denied when there is substantial evidence that the juvenile respondent committed a criminal offense or violated a condition of a probationary judgment. See, G.S. 7A-278(2).\nIn instant proceeding, the victim, James Smith, testified that he had been assaulted and robbed. He could not identify the persons who committed these crimes. The trial judge sustained respondent\u2019s objection to the introduction of written statements obtained by police officers from three other co-respondents.\nCounsel for respondent then made his motion to dismiss. At this point, there was obviously no evidence to identify respondent as one of the perpetrators of the charged offenses. After hearing conflicting recommendations from a juvenile counselor and a social worker as to the suitability of respondent\u2019s home, Judge Lampley turned to Donald Duncan, one of the co-respondents before him, and inquired if respondent Byers participated in the robbery and assault of James Smith. Duncan replied in the affirmative. The record does not disclose that Donald Duncan had been sworn as a witness. After he had elicited this statement from Donald Duncan, Judge Lampley denied respondent\u2019s motion to dismiss and entered judgment.\nDonald Duncan\u2019s statements were elicited by the court, and, therefore, respondent was entitled to an automatic objection and exception. See, 1 Stansbury\u2019s North Carolina Evidence, Sections 27, 37 (Brandis Rev. 1973). Further, it is well established that before a witness can testify he must swear or affirm to tell the truth. 1 Stansbury\u2019s North Carolina Evidence, Section 23 (Brandis Rev. 1973). We note that the juvenile hearing provisions of G.S. 7A-285 (Cum. Supp. 1977) specifically provide:\n... In the adjudication part of the hearing, the judge shall find the facts and protect the rights of the child and his parents in order to assure due process of law, including . . . the right to confront and cross-examine witnesses. . . . [Emphasis ours.]\nMoreover, in addressing the constitutional rights to be accorded a juvenile defendant in a proceeding similar to that in instant case, the United States Supreme Court has specifically held:\n. . . (A)bsent a valid confession, a determination of delinquency and an order of commitment to a state institution cannot be sustained in the absence of sworn testimony subjected to cross-examination in accordance with our law and constitutional requirements. [Emphasis ours.]\nIn re Gault, 387 U.S. 1, 57, 18 L.Ed. 2d 527, 87 S.Ct. 1428 (1967).\nThe unsworn testimony of the co-respondent Donald Duncan, elicited by Judge Lampley under circumstances which denied respondent his rights of confrontation and cross-examination, was not competent evidence. Therefore, there was no evidence at all before the court to show that respondent was one of the perpetrators of the alleged crimes. The trial court should have allowed respondent\u2019s motion to dismiss.\nOrdinarily, we do not pass upon a constitutional question when a case can be decided upon other grounds. See. e.g., Iredell County v. Crawford, 262 N.C. 720, 138 S.E. 2d 539 (1964); State v. Blackwell, 246 N.C. 642, 99 S.E. 2d 867 (1957); State v. Jones, 242 N.C. 563, 89 S.E. 2d 129 (1955). In view of our holding that Judge Lampley erred by failing to grant respondent\u2019s motion to dismiss, we deem it inappropriate to consider the constitutional issue presented by resondent\u2019s appeal.\nThis cause is remanded to the Court of Appeals with direction that it be remanded to the District Court of Union County for entry of judgment in accordance with this opinion.\nReversed and remanded.",
        "type": "majority",
        "author": "PER CURIAM."
      }
    ],
    "attorneys": [
      "Rufus L. Edmisten, Attorney General, hy William Woodward Webb, Assistant Attorney General, for the State.",
      "Humphries and McCollum, by Joe P. McCollum, Jr., for respondent appellant."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF: PHILLIP BYERS\nNo. 42\n(Filed 6 June 1978)\nInfants \u00a7 18\u2014 juvenile delinquency proceeding \u2014 insufficiency of evidence\nIn a proceeding to have respondent declared a juvenile delinquent, the trial court erred in denying respondent\u2019s motion to dismiss where there was no evidence before the court to show that respondent was one of the perpetrators of the alleged crimes since the victim of the assault and robbery could not identify respondent as one of his assailants; the trial judge sustained respondent\u2019s objection to the introduction of written statements obtained by police officers from three other co-respondents; and the unsworn testimony of one co-respondent elicited by the trial judge under circumstances which denied respondent his rights of confrontation and cross-examination was not competent evidence.\nAPPEAL by respondent from judgment entered on 11 May 1977 by Lampley, Judge, in District Court, UNION County.\nThis proceeding was initiated by the filing of a petition in the District Court Division, Union County, by Sergeant Frank Benton of the Monroe Police Department seeking to have respondent, who was then less than 16 years old, declared a juvenile delinquent. After conducting a hearing and overruling respondent\u2019s motion to dismiss, Judge Lampley ordered that respondent be placed in the custody of the Department of Human Resources for an indefinite period of time but not to extend beyond his eighteenth birthday.\nRespondent appealed and before the Court of Appeals contended that Judge Lampley erred by denying his motion to dismiss and that the juvenile hearing provisions of G.S. 7A-285 were unconstitutional in that they do not permit a trial de novo before a law trained judge as required in North v. Russell, 427 U.S. 328, 49 L.Ed. 2d 534, 96 S.Ct. 2709 (1976). In affirming Judge Lampley\u2019s judgment, the Court of Appeals ruled that there was sufficient evidence to withstand respondent\u2019s motion to dismiss and that the requirements set forth in North v. Russell, supra, were not applicable to juvenile proceedings.\nRespondent appealed to this Court pursuant to the provisions of G.S. 7A-30(1).\nRufus L. Edmisten, Attorney General, hy William Woodward Webb, Assistant Attorney General, for the State.\nHumphries and McCollum, by Joe P. McCollum, Jr., for respondent appellant."
  },
  "file_name": "0256-01",
  "first_page_order": 288,
  "last_page_order": 291
}