IN THE MATTER OF: Joseph D. Lineberry
Attorney General Roy Cooper, by Assistant Attorney General
Kathleen U. Baldwin, for the State.
Richard E. Jester for juvenile appellant.
TIMMONS-GOODSON, Judge.
Joseph D. Lineberry (“juvenile”) appeals from orders of the
trial court adjudicating juvenile to be delinquent and placing the
custody of juvenile with the Youth Development Center. For the
reasons stated herein, we affirm the order of the trial court
adjudicating juvenile delinquent, but we vacate the order
continuing custody of juvenile pending appeal, and we remand for
proceedings consistent with this opinion.
The pertinent facts of this appeal are as follows: On 6 June
2000, the State filed two petitions seeking delinquency status for
juvenile with the Rowan County District Court. The petitions
accused juvenile of committing a sexual offense in the second
degree and of taking indecent liberties with a fellow minor.
The matter came before the trial court on 23 June 2000, at
which time the State presented evidence tending to show the
following: On 5 February 2000, juvenile's ten-year-old cousin,“B,” spent the night at juvenile's residence. Juvenile was
fourteen years old at the time. “B” testified that, after he had
gone to sleep in juvenile's bedroom, juvenile removed “B's”
clothing, placed duct tape over his mouth, held him down on the
bed, and “put his privates . . . in [B's] butt.” “B” affirmed that
juvenile's actions were painful, but that he was unable to scream
due to the duct tape over his mouth. “B” stated that he was
approximately four feet, five inches tall at the time and weighed
eighty-five pounds. Juvenile testified that he was six feet, two
inches tall and weighed approximately one hundred and ninety
pounds. According to “B,” juvenile warned him that “if [he] told
anybody he'd hurt me.” Despite the warning, “B” attempted to
inform his aunt, juvenile's mother, of the assault immediately
following his encounter with juvenile. “B” stated that he
approached his aunt in the living room, where she was watching
television, but that before he could tell her what had happened,
she ordered him to “get back in the room.” “B” returned to
juvenile's room and went to sleep.
When “B” returned home the following day, he spoke of
juvenile's actions with his brother, who immediately informed “B's”
mother. “B” described his encounter with juvenile to his mother,
who then took him to the hospital. “B's” mother testified that the
examining physician found redness around “B's” anus, but no other
physical manifestations of the assault.
Juvenile testified at the hearing and denied touching “B” in
any type of sexual or otherwise improper manner. Juvenile'smother, Debbie Lineberry, also testified that she heard no unusual
noises on the evening in question, and noted that there was no duct
tape in the house.
At the conclusion of the evidence, the trial court found that
juvenile had committed a second-degree sexual offense and indecent
liberties with children. The trial court delayed disposition of
the matter pending completion of a sex offender evaluation. On 8
December 2000, the trial court held a hearing concerning the
evaluation of juvenile and entered an order adjudicating juvenile
delinquent on 12 January 2001. The disposition order required
juvenile to cooperate with an intensive nonresidential treatment
program for sex offenders.
On 25 May 2001, the trial court held a hearing upon a motion
for review based on evidence that juvenile was not attending the
required outpatient therapy. On 31 May 2001, the trial court
entered a disposition and commitment order, committing juvenile to
the custody of the Youth Development Center in order to complete a
sex offender treatment program. On 7 June 2001, the trial court
convened to address the presumption that a juvenile be released
from secure custody pending appeal. After hearing the evidence
presented, the court concluded that it was in the best interests of
juvenile and the State that juvenile remain in custody pending
appeal. Juvenile appeals from these orders.
____________________________________________________
Juvenile presents five issues on appeal, arguing that the
trial court erred by (1) finding juvenile to be delinquent; (2)displaying improper bias towards juvenile; (3) receiving testimony
of a witness ex parte; and (4) committing juvenile to the Youth
Development Center pending appeal. Juvenile also contends that (5)
the procedures for the recordation of trial testimony and
proceedings in the juvenile court were inadequate to protect
juvenile's constitutional and statutory rights.
By his first assignment of error, juvenile contends that the
State failed to present sufficient evidence of juvenile's
delinquency, and that the trial court erred in finding otherwise.
Juvenile made no motion, however, to dismiss the petition at the
close of the evidence during the adjudicatory hearing. As such, he
has waived his right on appeal to challenge the sufficiency of the
evidence against him. See N.C.R. App. P. 10(b)(3) (2002); In re
Clapp, 137 N.C. App. 14, 19, 526 S.E.2d 689, 693 (2000) (holding
that, as the juvenile charged with delinquency on the grounds of
committing a second-degree sexual offense failed to move for
dismissal at the close of the evidence against him, he was
precluded from challenging the sufficiency of the evidence on
appeal). We therefore dismiss this assignment of error.
By his second assignment of error, juvenile submits that the
trial judge demonstrated improper bias towards juvenile during the
adjudicatory hearing. Specifically, juvenile contends that the
trial judge displayed bias by interrupting juvenile's counsel six
times during his closing argument. Juvenile asserts that the
comments made by the trial judge during these interruptions
revealed the judge's lack of impartiality. We disagree. We note first that juvenile made no motion for the trial
judge's recusal based on allegations of bias. Further, where a
party moves for recusal, the burden is on the movant to
“'demonstrate objectively that grounds for disqualification
actually exist. Such a showing must consist of substantial
evidence that there exists such a personal bias, prejudice or
interest on the part of the judge that he would be unable to rule
impartially.'” State v. Fie, 320 N.C. 626, 627, 359 S.E.2d 774,
775 (1987) (quoting State v. Fie, 80 N.C. App. 577, 584, 343 S.E.2d
248, 254 (1986) (Martin, J., concurring)).
We discern no improper bias by the trial judge in the instant
case. The interruptions of the closing argument by the trial judge
were inconsequential and reveal no predisposition by the judge
towards either party. For example, when counsel for juvenile
stated that he “hope[d] I don't irritate the Court or bore you with
bringing out these things” the judge assured counsel that “You're
not boring me[.]” In another example, counsel for juvenile stated
that, “More than two weeks before Ms. Rushner asked to talk to him,
passed[,]” at which point the judge correctly noted that the time
period had in fact been ten days. Further, when counsel for
juvenile stated that he “underst[ood] that the Court wishes to give
credence to a victim that comes in and says this happened[,]” the
judge assured counsel that, “I'm not here to give credence to
anybody in particular. I'm here to weigh the credibility of the
witnesses and the evidence.” We fail to perceive how the trial
court's direct affirmation that it was impartial could form thebasis of a claim of partiality.
In another incident, counsel for juvenile argued that “B's”
account of events was not credible, in that he did not immediately
inform Mrs. Lineberry of juvenile's assault. Specifically, counsel
called “B's” testimony into doubt by stating, “something like this
has just occurred to him, that he did not go to the woman he had no
reason to think would do anything but be his friend [,]” at which
point the trial judge interrupted with the observation that Mrs.
Lineberry was “[t]he perpetrator's mother.”
In the context of the transcript, it is clear that the trial
court characterized Mrs. Lineberry as “the perpetrator's mother” in
order to direct counsel's attention to valid reasons for “B's”
reluctance to confide in Mrs. Lineberry. Rather than exposing bias
towards juvenile, the trial court's statement allowed counsel to
refine his closing argument to the trial court by focusing more
narrowly on “B's” credibility. The trial court's description of
Mrs. Lineberry as “the perpetrator's mother” for identification
purposes does not indicate that the trial court believed that
juvenile committed the offense any more than defense counsel's
identification of “B” as “the victim” indicates defense counsel's
belief that “B” was in fact assaulted. Further interruptions by
the trial court were similarly minor in nature and of no import.
We therefore overrule juvenile's second assignment of error.
In his third assignment of error, juvenile asserts that the
trial court violated his rights by receiving witness testimony
outside of juvenile's presence. Under Article 1, section 23 of theNorth Carolina Constitution, a criminal defendant has the right to
be present at every stage of his trial. See State v. Thomas, 134
N.C. App. 560, 570, 518 S.E.2d 222, 229, appeal dismissed and disc.
review denied, 351 N.C. 119, 541 S.E.2d 468 (1999). “Juveniles in
delinquency proceedings are entitled to constitutional safeguards
similar to those afforded adult criminal defendants.” See In re
Arthur, 27 N.C. App. 227, 229, 218 S.E.2d 869, 871 (1975), reversed
on other grounds, 291 N.C. 640, 231 S.E.2d 614 (1977).
Constitutional error will not form the basis of reversal on appeal,
however, where it is shown that such error was harmless beyond a
reasonable doubt. See N.C. Gen. Stat. § 15A-1443(b) (2001); State
v. Brogden, 329 N.C. 534, 541, 407 S.E.2d 158, 163 (1991).
During the 8 December 2000 hearing in the instant case, the
trial court ordered the record to reflect
that there was a chambers conference that
involved a conference call with Dr. Cappaletti
. . . who prepared the court-ordered
evaluation; that [counsel for juvenile] and
the [district attorney], as well as the court
counselors, had an opportunity to question Dr.
Cappaletti about her evaluation about the
alternatives to therapy available in lieu of
training school for [juvenile]. And, in fact,
we further briefed Dr. Cappaletti about the
competing privately-obtained evaluation, and
[counsel for juvenile] fleshed that out with
Dr. Cappaletti to a degree.
Counsel for juvenile confirmed that the conference call was made in
his presence and with juvenile's knowledge and consent, stating
that
for the record, [juvenile] knew when I started
the chambers discussion and we started to
handle the method in the discussion rather the
confrontational manner that that was somethingwe wanted to do as a way of facilitating the
open discussion rather than the formal,
confrontational type things that could
otherwise be required. And we do appreciate
the opportunity to handle the matter in that
way. Thank you.
Dr. Cappaletti also submitted a written evaluation of juvenile to
the court, which was available for all parties and is included in
the record on appeal.
Although juvenile was not present during Dr. Cappaletti's
testimony, we hold that the error in excluding juvenile was
harmless beyond a reasonable doubt. See Thomas, 134 N.C. App. at
571, 518 S.E.2d at 230. The conference call occurred in the
presence of juvenile's counsel, who cross-examined the witness
regarding her testimony. The substance of the conference call was
placed on the record by the trial judge. Dr. Cappaletti's opinion
regarding the matter was reduced to writing and available to all
parties. Moreover, juvenile made no objections to his absence from
the conference; on the contrary, counsel for juvenile thanked the
trial judge for allowing the admission of evidence in an informal
setting. In light of these circumstances, we cannot conclude that
juvenile's exclusion from the proceedings had any impact on the
outcome of the disposition. See State v. Huff, 325 N.C. 1, 35, 381
S.E.2d 635, 654 (1989), vacated and remanded on other grounds, 497
U.S. 1021, 111 L. Ed. 2d 777 (1990); Thomas, 134 N.C. App. at 571,
518 S.E.2d at 230. We therefore overrule this assignment of error.
Juvenile next contends that the trial court erred in ordering
juvenile to remain in custody during the pendency of his appeal.
Under section 7B-2605 of the North Carolina General Statutes, [p]ending disposition of an appeal, the
release of the juvenile, with or without
conditions, should issue in every case unless
the court orders otherwise. For compelling
reasons which must be stated in writing, the
court may enter a temporary order affecting
the custody or placement of the juvenile as
the court finds to be in the best interests of
the juvenile or the State.
N.C. Gen. Stat. § 7B-2605 (2001). In the instant case, the trial
court held a hearing on the issue of juvenile's release from
custody pending appeal and found the following pertinent facts:
3. The date of adjudication of felonious
Second Degree Sex Offense and misdemeanor
Indecent Liberties Between Minors was June 23,
2000;
4. Upon request of the juvenile's first
trial counsel, Ron Bowers; continuance was
granted thereby delaying entry of a
dispositional order;
5. Three sex offender evaluations, attached
and incorporated herein by reference, were
received and considered;
6. The juvenile has consistently expressed
entrenched denial which diminishes his
amenability to treatment;
7. To date the juvenile has not participated
in any sex offender therapy;
. . . .
9. The felonious Second Degree Sex Offense
and misdemeanor Indecent Liberties Between
Minors was committed in an aggressive,
premeditated manner;
10. The juvenile is frequently in the
presence of other juveniles that have not been
made aware of his adjudication for a sex
offense;
11. The juvenile has not been consistently
closely supervised by his parents or other
adults that have been made aware of the risksfor re-offending; and,
12. The juvenile is currently receiving sex
offender specific treatment at the Swannanoa
Valley Youth Development Center Juvenile
Evaluation Center.
Based on these facts, the trial court concluded that “[c]ompelling
reasons exist and it is in the best interest of the juvenile and
the State that the juvenile remain in the custody of the Youth
Development Center pending appeal.”
Juvenile objects to Finding Number Six by the trial court, in
which the court found that juvenile “consistently expressed
entrenched denial which diminishes his amenability to treatment[.]”
Juvenile contends that this finding indicates that the trial court
denied juvenile's release because of his refusal to admit that he
committed the offenses for which he was adjudicated delinquent. We
agree with juvenile that this finding was improper.
Under the Fifth Amendment to the United States Constitution,
no person “shall be compelled in any criminal case to be a witness
against himself[.]” U.S. Const. amend. V. Similarly, Article I,
section 23, of the North Carolina Constitution protects “every
person charged with crime” from being “compelled to give self-
incriminating evidence[.]” N.C. Const. art. I, § 23. The
privilege against self-incrimination extends to juveniles charged
with delinquency. See N.C. Gen. Stat. § 7B-2405(4) (2001); Arthur,
27 N.C. App. at 229, 218 S.E.2d at 871. The constitutional
guarantees against self-incrimination should be liberally
construed, see State v. Smith, 13 N.C. App. 46, 51, 184 S.E.2d 906,
909 (1971), and apply alike to civil and criminal proceedings,“'wherever the answer might tend to subject to criminal
responsibility him who gives it.'” Trust Co. v. Grainger, 42 N.C.
App. 337, 339, 256 S.E.2d 500, 502 (quoting McCarthy v. Arndstein,
266 U.S. 34, 40, 69 L. Ed. 158, 161 (1924)), disc. review denied,
298 N.C. 304, 259 S.E.2d 300 (1979).
A “classic penalty situation” regarding the privilege against
self-incrimination arises where the State, either expressly or by
implication, asserts that invocation of the privilege will lead to
revocation of probation. See Minnesota v. Murphy, 465 U.S. 420,
435, 79 L. Ed. 2d 409, 424 (1984). Various courts have applied the
United States Supreme Court's holding in Murphy in the context of
treatment programs for offenders. Such court-ordered treatment
programs may implicate the “classic penalty situation,” in that the
therapeutic programs often require a convicted offender to admit to
the offense for which he was found guilty. See, e.g., Mace v.
Amestoy, 765 F. Supp. 847, 851 (D.Vt. 1991)(holding that the
defendant's Fifth Amendment rights were violated where his
probation was revoked based on his failure to complete a sexual
treatment program that required incriminating admissions); State v.
Fuller, 276 Mont. 155, 166-67, 915 P.2d 809, 816 (holding that the
defendant was placed in the classic penalty situation when he was
ordered, as a condition of his probation, to participate in a
sexual offenders treatment program that required participants to
disclose their offense history), cert. denied, 519 U.S. 930, 136 L.
Ed. 2d 219 (1996); State v. Evans, 144 Ohio App. 3d 539, 550, 760
N.E.2d 909, 918 (holding that the classic penalty situation existedwhere the delinquent juvenile made incriminating statements during
court-ordered therapy at a residential treatment center for drug
offenders), appeal dismissed, 93 Ohio St.3d 1473, 757 N.E.2d 771
(2001). Courts have recognized that
[t]he dramatic expansion of therapeutic
sentencing alternatives has disturbing
implications for the Fifth Amendment rights of
convicted offenders, because cooperation of
the patient is a prerequisite to successful
therapy. Sex offenders . . . often deny both
the commission of an offense and the
inappropriateness of their actions. The first
step toward rehabilitation, however, is to
admit that there is a problem. In criminal
law, this translates into an admission of
guilt, raising the question of whether the
requirement of most therapy programs that a
defendant accept responsibility for his
actions violates the Fifth Amendment
protection against self-incrimination.
Jessica Wilen Berg, Note, Give Me Liberty or Give Me Silence:
Taking a Stand on Fifth Amendment Implications for Court-Ordered
Therapy Programs, 79 Cornell L. Rev. 700, 702 (1994) (footnotes
omitted).
In the instant case, the court ordered that juvenile undergo
a sex offender evaluation, three of which were performed and
submitted to the court. The court also ordered juvenile to be
placed in the custody of the Youth Development Center and
specifically ordered “that he attend and complete the Sex Offender
Sex Treatment Program.” At the hearing to determine whether
juvenile should remain in custody pending his appeal, the juvenile
court counselor assigned to juvenile's case testified that, if
juvenile continued to deny the offense while undergoing treatment,
“that will slow his progression through the treatment program.” The counselor further verified that juvenile's “commitment time is
connected directly to his -- whether or not he will admit to the
crime.” After reviewing the evidence, the court found that
juvenile's consistent refusal to admit to the offenses “diminishes
his amenability to treatment” and ordered that juvenile remain in
custody pending appeal. This finding was error.
In finding that juvenile's refusal to admit to the offenses
was a factor justifying his continued custody pending appeal, the
trial court exposed juvenile to the classic penalty situation of
choosing between the privilege against self-incrimination and
prolonged confinement. See Murphy, 465 U.S. at 435, 79 L. Ed. 2d
at 424. Juvenile has consistently maintained his innocence as to
the offenses for which he was adjudicated delinquent, and which he
is currently appealing. Thus, the trial court's conclusion that
juvenile should remain in custody pending appeal based on
juvenile's refusal to admit to the offense for which he was
adjudicated delinquent violated juvenile's constitutional right
against self-incrimination.
We note that the fact that juvenile denied the offenses for
which he was adjudicated delinquent was but one of several reasons
for the trial court's decision. The trial court made other
findings of fact to support its conclusion that continued custody
was in the best interests of the juvenile and of the State.
Specifically, the trial court found that juvenile posed a risk to
others, in that he had been adjudicated delinquent for offenses
that often present a high rate for re-offense, and for whichjuvenile had received no therapy. See, e.g., McKune v. Lile, __
U.S. __, 153 L. Ed. 2d 47, 56-57 (2002) (noting that therapy for
sexual offenders is particularly important, as sexual offenders are
“much more likely than any other type of offender” to commit a
further sexual offense upon release from custody). Moreover, the
offenses were committed “in an aggressive, premeditated manner.”
Despite the fact that juvenile was often “in the presence of other
juveniles” who were unaware of juvenile's adjudication, juvenile
was not closely supervised by his parents. Because of the
potential threat that juvenile posed to others, the trial court
concluded that custody was in the best interests of the State.
Although the trial court made appropriate findings to support
its decision, we are unable to determine from the record before us
the weight given by the trial court to the erroneous finding
concerning juvenile's refusal to admit to his guilt. Compare State
v. Canaday, 330 N.C. 398, 399, 410 S.E.2d 875, 876 (1991); State v.
Clifton, 125 N.C. App. 471, 483, 481 S.E.2d 393, 401 (1997) (both
adhering to the general rule that, under the Fair Sentencing Act,
a defendant is entitled to a new sentencing hearing where the trial
court errs in finding an aggravating factor). We therefore vacate
the order continuing juvenile's custody pending appeal and remand
the case to the trial court for proceedings not inconsistent with
this opinion. See In re Bullabough, 89 N.C. App. 171, 184, 365
S.E.2d 642, 649 (1988) (holding that the trial court erred in
ordering juvenile to remain in custody pending appeal without
making appropriate findings). In doing so, we are aware of thelikelihood that the passage of time may have rendered the issue of
juvenile's custody pending appeal moot. We further note that, as
the erroneous order continuing custody of juvenile pending appeal
occurred after final adjudication and disposition of juvenile's
case, the error by the trial court had no effect on the
adjudication or disposition. See Bullabough, 89 N.C. App. at 184,
365 S.E.2d at 649; In re Bass, 77 N.C. App. 110, 117, 334 S.E.2d
779, 783 (1985) (both holding that post-trial proceedings had no
effect on the adjudication and disposition of the juveniles).
By his final assignment of error, juvenile contends that the
recordation procedures for transcribing juvenile court proceedings
are inadequate to protect juvenile's rights. Juvenile contends
that, as there was no official court reporter, and as there were
certain portions of the taped testimony that were inaudible and
thus not transcribed, the transcript in the instant case is
incomplete and inadequate to preserve juvenile's rights on appeal.
We disagree.
Under the Juvenile Code,
[a]ll adjudicatory and dispositional hearings
and hearings on probable cause and transfer to
superior court shall be recorded by
stenographic notes or by electronic or
mechanical means. Records shall be reduced to
a written transcript only when timely notice
of appeal has been given. The court may order
that other hearings be recorded.
N.C. Gen. Stat. § 7B-2410 (2001) (emphasis added). Thus, the
statute specifically provides for recordation of juvenile
proceedings. Where a trial transcript is “entirely inaccurate and
inadequate,” precluding formulation of an adequate record and thuspreventing appropriate appellate review, a new trial may be
granted. State v. Sanders, 312 N.C. 318, 320, 321 S.E.2d 836, 837
(1984) (per curiam). Such, however, is not the case here.
Instead, as was the case in State v. Hammonds, 141 N.C. App. 152,
541 S.E.2d 166 (2000), affirmed per curiam, 354 N.C. 353, 554
S.E.2d 645 (2001), our review of the record reveals that “the
transcript, despite its imperfections, is not so inaccurate as to
prevent meaningful review by this Court.” Id. at 168, 541 S.E.2d
at 178. See also State v. McLaughlin, 323 N.C. 68, 108, 372 S.E.2d
49, 75 (1988) (noting that, “[a]lthough the transcript in the case
sub judice cannot be described as a model of reporting service, it
is not so inaccurate as to prevent this Court from reviewing it for
errors in defendant's trial”), judgment vacated and remanded on
other grounds, 494 U.S. 1021, 108 L. Ed. 2d 601 (1990). We
therefore overrule juvenile's final assignment of error.
In conclusion, we hold that the trial court did not err in
adjudicating juvenile to be delinquent. We therefore affirm this
order. We further hold that the trial court erred in finding that
juvenile's refusal during court-ordered therapeutic treatment to
admit to the offenses for which he was adjudicated delinquent was
a factor justifying his continued custody pending appeal. We
therefore vacate this order and remand juvenile's case to the trial
court for proceedings not inconsistent with this opinion.
The 12 January 2001 order of the trial court adjudicating
juvenile delinquent is hereby
Affirmed. The 29 June 2001 order of the trial court continuing custody
of juvenile pending appeal is hereby
Vacated.
Judges HUDSON and CAMPBELL concur.
*** Converted from WordPerfect ***