In The Matter Of:
DONTE LAMARK AUSTIN Wake County &nb
sp;
No. 99 J 500
Attorney General Roy Cooper, by Assistant Attorney General
Judith Tillman, for the State.
Miller & Shedor, PLLC, by Marty E. Miller, for juvenile-
appellant.
McGEE, Judge.
A juvenile petition was filed on 10 August 2000 charging Donte
Lamark Austin (juvenile) with the offense of injury to personal
property exceeding two hundred dollars. A juvenile summons and
notice of hearing were served on defendant's mother, Michelle Renee
Austin, on 28 August 2000, with a hearing date of 13 September
2000. The case was continued to 19 October 2000 and subsequently
to 9 November 2000. A hearing was not held on 9 November 2000 and
no order of continuance was entered. Another summons and notice of
hearing were issued on 29 January 2001, setting a hearing for 22
February 2001, but the juvenile was not served with the summons and
notice. The trial court rescheduled the hearing for 20 March 2001,
but a new summons and notice were not issued to the juvenile. Evidence presented by the State at trial on 20 March 2001
tended to show that James McLean (McLean) saw juvenile and Donte
Roberts (Roberts) roller skating across from McLean's house on the
evening of 8 August 2000. McLean later saw two young men smashing
car windows in the service station parking lot across the road and
he telephoned the police. McLean was still watching the young men
when the police arrived. He testified he told the police that the
two young men wearing roller skates were the offenders. McLean
also testified that one of the offenders was wearing roller skates
and one was not.
The young men fled when they saw the police and ran behind
McLean's apartment building. The police pursued and apprehended
them and brought them back to the front of the building. McLean
identified juvenile as one of the young men he earlier witnessed
breaking car windows in the parking lot. McLean also made an in-
court identification of juvenile at trial.
Juvenile testified that he had been sitting on the stoop of
McLean's apartment that evening and was not involved in breaking
the car windows. He further identified the perpetrators as Roberts
and Donte Jones (Jones). Roberts testified about his involvement
in the incident, identified Jones as the other perpetrator, and
denied juvenile was involved in the offense. Juvenile attempted to
compel the testimony of Jones, but the trial court upheld Jones's
invocation of his Fifth Amendment rights against incrimination.
Juvenile also attempted to compel the testimony of Jones's mother
regarding conversations she had with her son about the incident;however, the trial court sustained the State's objection to the
testimony on the grounds of attorney-client privilege.
The trial court adjudicated juvenile delinquent and entered a
disposition order. Juvenile appeals.
Juvenile first argues the trial court erred in excluding the
testimony of Jones's mother based on attorney-client privilege.
However, juvenile made no offer of proof as to what her testimony
would have been had she been permitted to testify.
It is well established that an exception
to the exclusion of evidence cannot be
sustained where the record fails to show what
the witness' testimony would have been had he
been permitted to testify.
. . . [I]n order for a party to preserve
for appellate review the exclusion of
evidence, the significance of the excluded
evidence must be made to appear in the record
and a specific offer of proof is required
unless the significance of the evidence is
obvious from the record.
State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d 53, 60 (1985)
(citations omitted); see State v. Hardy, 353 N.C. 122, 540 S.E.2d
334 (2000); State v. Pallas, 144 N.C. App. 277, 548 S.E.2d 773
(2001); see also N.C. Gen. Stat. § 8C-1, Rule 103 (2001); N.C. Gen.
Stat. § 15A-1446(a) (2001). This issue has not been preserved for
our review and the significance of the evidence is not obvious from
the record. This assignment of error is therefore overruled.
Juvenile next argues that the trial court erred in exercising
jurisdiction over the case due to a deficiency in service of
process on the juvenile. N.C.R. App. P. 10(a) states that
"[e]xcept as otherwise provided herein, the scope of review onappeal is confined to a consideration of those assignments of error
set out in the record on appeal in accordance with this Rule 10."
N.C.R. App. P. 10(b)(1) further states that "[i]n order to preserve
a question for appellate review, a party must have presented to the
trial court a timely request, objection or motion, stating the
specific grounds for the ruling the party desired the court to make
if the specific grounds were not apparent from the context."
Juvenile failed to assign error to the trial court's decision
to exercise jurisdiction over this case. Furthermore, the record
lacks any objection to the trial court's exercise of jurisdiction
over the case. Accordingly, juvenile did not properly preserve
this issue for appeal and it is dismissed.
Juvenile next argues the trial court erred in admitting into
evidence the in-court and out-of-court identifications of juvenile.
Juvenile contends the out-of-court identification was
unconstitutionally suggestive due to the surrounding circumstances
of the showup. "This Court has, on numerous occasions, sanctioned
the use of showups." In re Stallings, 318 N.C. 565, 569, 350
S.E.2d 327, 329 (1986). Showups are an unrestrictive means of
determining if a suspect committed the crime in question and ensure
an innocent party's minimum involvement with the criminal justice
system. Stallings, 318 N.C. at 570, 350 S.E.2d at 329. The
totality of the circumstances test is used to determine the
reliability of a showup identification. In re Stallings, 318 N.C.
at 571, 350 S.E.2d at 330.
Some of the factors that may be examined in
determining the reliability of a showupidentification are (1) the witness'
opportunity to observe the accused, (2) the
witness' degree of attention, (3) the accuracy
of the witness' description, (4) the witness'
level of certainty, and (5) the time elapsed
between the crime and the confrontation.
Id.; see State v. Wilson, 313 N.C. 516, 529, 330 S.E.2d 450, 460
(1985).
The evidence in the record demonstrates that McLean had ample
opportunity to observe the offenders from across the street, he was
attentive in his observations, and he remained certain of his
identification throughout the case. His attention was focused on
the events taking place in the parking lot and he was able to
identify the offenders with some degree of particularity, ranging
from their hairstyles to their footwear. McLean was actually
observing the young men when the police arrived and he made the
identification within a couple of minutes of his observations of
the criminal acts. The short length of time between his
observations and identification supports the reliability of the
identification. Furthermore, the proximity between the
observations and identification virtually eliminates the possible
suggestiveness of the showup. Considering the totality of the
circumstances, the evidence is sufficient to support the validity
of the out-of-court identification.
Juvenile also argues that the in-court and out-of-court
statements should have been excluded from evidence based on the
inconsistencies between the two. However, any discrepancies
between the two identifications would relate to the weight of the
evidence, not its admissibility. See State v. Weimer, 300 N.C.642, 649, 268 S.E.2d 216, 220 (1980); State v. Bass, 280 N.C. 435,
452-53, 186 S.E.2d 384, 396 (1972).
Juvenile further contends the trial court erred in failing to
make findings of fact when evaluating the admissibility of McLean's
in-court identification on voir dire. Juvenile contends that the
in-court identification can only be admitted after clear and
convincing evidence is presented by the State in a voir dire as to
the in-court identification's independent origin. See State v.
Tuggle, 284 N.C. 515, 520, 201 S.E.2d 884, 887 (1974). We have
already determined the trial court did not err in admitting the
out-of-court identification; therefore, the in-court identification
was not improperly based upon the showup. Furthermore, our Supreme
Court has held that
[w]here . . . it is equally clear that the
lineup was conducted fairly and without
prejudice to him, and perfectly obvious that
the in-court identification was not fruit of
the lineup but had its independent origin in
the witness' observation of the crime itself,
[the] failure of the trial court to insert
such findings into the record must be deemed
harmless error.
State v. Covington, 290 N.C. 313, 323, 226 S.E.2d 629, 638 (1976)
(quoting State v. Williams, 274 N.C. 328, 342, 163 S.E.2d 353, 363
(1968)); see State v. Stepney, 280 N.C. 306, 185 S.E.2d 844 (1972).
Juvenile's assignment of error is without merit.
Juvenile next argues the trial court erred in finding that the
allegations of the petition were proven beyond a reasonable doubt.
He argues that discrepancies in the trial testimony are sufficient
to raise reasonable doubts regarding the proof of the allegations. Juvenile cites no authority in support of this argument and relies
solely upon his own interpretation of the evidence.
Where, as here, there is no jury trial, the
court is the trier of the facts. As the trier
of the facts, the court [has] the duty to
determine the weight and credibility to be
given to the evidence presented, and he could
believe or disbelieve the testimony of any
witness.
In re Whichard, 8 N.C. App. 154, 160, 174 S.E.2d 281, 285 (1970).
As the trier of fact, the trial court weighed the testimony
presented at trial and assessed the credibility of the individual
witnesses. After weighing the evidence, the trial court determined
the allegations had been proven beyond a reasonable doubt through
the evidence presented. This Court must determine "whether any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt." State v. Baldwin, 141 N.C.
App. 596, 604, 540 S.E.2d 815, 821 (2000) (quoting State v.
Barnette, 304 N.C. 447, 458, 284 S.E.2d 298, 305 (1981)). We find
there is substantial evidence in the record to support such a
finding by the trial court. This assignment of error is without
merit.
Juvenile lastly argues the trial court erred in permitting the
State to object to a defense witness's testimony based on the
witness's exercise of the witness's Fifth Amendment privilege
against self-incrimination. Juvenile argues the State's action was
equivalent to witness tampering because the witness was essentially
convinced to refrain from testifying and possibly confessing.
While juvenile correctly states that a witness may voluntarily givetestimony even if it is incriminating, see State v. Hunt, 339 N.C.
622, 639, 457 S.E.2d 276, 286 (1995), juvenile cites no legal
authority to support his contention that the objection by the State
prejudiced juvenile or was a reversible error of the trial court.
Juvenile also failed to preserve this issue for appeal by not
making an offer of proof as to what the testimony would have been
had the witness testified. See State v. Hardy, 353 N.C. 122, 540
S.E.2d 334 (2000); State v. Simpson, 314 N.C. 359, 370, 334 S.E.2d
53, 60 (1985); State v. Pallas, 144 N.C. App. 277, 548 S.E.2d 773
(2001). This assignment of error is without merit.
Affirmed.
Judges WALKER and THOMAS concur.
Report per Rule 30(e).
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