In the Matter of Jerry Wayne VINSON.
No. 30.Supreme Court of North Carolina.
December 4, 1979.*597 Atty. Gen. Rufus L. Edmisten by Associate Atty. Steven Mansfield Shaber, Raleigh, for the State.
Public Defender Wallace C. Harrelson, Greensboro, for respondent.
CARLTON, Justice.
Respondent attacks both the adjudicatory and dispositional stages of his proceedings. With respect to the adjudicatory hearing, respondent presents essentially three issues: (1) Did the trial court err in allowing testimony at voir dire about identification of respondent by photograph? (2) Did the trial court err in denying his motion for nonsuit? (3) Did the trial court err in adjudicating respondent as a delinquent child?
With respect to the dispositional hearing, respondent presents again essentially three issues: (1) Did the trial court err in immediately proceeding to the dispositional stage over respondent's objection? (2) Did the trial court err in hearing evidence about acts of respondent which had not been adjudicated delinquent acts? (3) Did the trial court fail to make sufficient findings of fact to support its commitment order?
We discuss these issues in order and, for the reasons stated, reverse the Court of Appeals' decision which affirmed the proceedings in the trial court.
I.
The issues raised by respondent's appeal strike at the heart of our juvenile justice laws. To address these contentions with the gravity they merit, it is first necessary to investigate the history and policy behind North Carolina's Juvenile Code. The present Juvenile Code is codified at G.S. 7A-277 through G.S. 7A-289.34. We note at the outset that these and other statutes pertaining to juveniles have been repealed by the 1979 General Assembly effective 1 January 1980 at which time they will be replaced by a new North Carolina Juvenile Code codified as G.S. 7A-516 through G.S. 7A-732.[1] 1979 N.C. Advanced Legislative Service, Chapter 815 at 7A-506 through 7A-641. Realizing that our decision will be filed shortly before implementation of the new Juvenile Code, this opinion will, at times, discuss both present law and the implications of the new Code on the issues raised.
The predecessor to our Juvenile Code was enacted into our law in 1919, following a prototype begun in Cook County, Illinois. That prototype introduced an innovation into juvenile law at the timejuveniles were to be separated from adult criminals and dealt with in a separate, more flexible system. M. Thomas, Juvenile Corrections: A Brief History and Juvenile Jurisdiction: North Carolina's Laws and Related Cases 6-8 (1972). See also, State v. Monahan, 15 N.J. 34, 104 A.2d 21 (1954); 48 A.L.R.2d 663, 665.
The reason for this separation was clear to courts of the time. Reviewing our own Juvenile Code statutes in 1920, Justice Hoke stated:
[S]uch legislation deals, and purports to deal, with delinquent children not as criminals, but as wards, and undertakes rather to give them the control and environment that may lead to their reformation, and enable them to become law-abiding *598 and useful citizens . . . . (Emphasis added.)
State v. Burnett, 179 N.C. 735, 742, 102 S.E. 711, 714 (1920).
This view of the state as parens patriae to a delinquent child has continued for the most part unabated in the 60 years since those words were first written. Thus, in 1969, Justice Huskins speaking for this Court, wrote in In re Burrus, 275 N.C. 517, 169 S.E.2d 879 (1969), aff'd sub nom., McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971), that under the Juvenile Code, the court owed "the constant duty . . . to give each child subject to its jurisdiction such oversight and control as will conduce to the welfare of the child and to the best interest of the State [Citation omitted]." (Emphasis added.) Id. 275 N.C. at 531, 169 S.E.2d at 887-88.
The once innovative and idealistic spirit of Juvenile Codes, however, has been strongly criticized in its application. In 1970, while reviewing In re Burrus, supra, and upholding the decision of this Court, the United States Supreme Court wrote:
[T]he fond and idealistic hopes of the juvenile court proponents and early reformers of three generations ago have not been realized. The devastating commentary upon the system's failure as a whole . . . reveals the depth of disappointment in what has been accomplished.
McKeiver v. Pennsylvania, supra, 403 U.S. at 543-44, 91 S.Ct. at 1985, 29 L.Ed.2d at 660.
And in a footnote it quoted a juvenile justice task force report of the 1967 President's Commission on Law Enforcement:
"In fact [the juvenile justice system] frequently does nothing more nor less than deprive a child of liberty without due process of the lawknowing not what else to do and needing, whether admittedly or not, to act in the community's interest even more imperatively than the child's. In theory it was to exercise its protective powers to bring an errant child back into the fold. In fact there is increasing reason to believe that its intervention reinforces the juvenile's unlawful impulses. . . ."
403 U.S. at 544, 91 S.Ct. at 1986, 29 L.Ed.2d at 660, note 5. See also, Kent v. United States, 383 U.S. 541, 556, 86 S.Ct. 1045, 1054, 16 L.Ed.2d 84, 94 (1966).
To correct these abuses, the Supreme Court in a series of decisions has introduced a far more formal element in juvenile proceedings and has held that due process mandates that a juvenile must be convicted beyond a reasonable doubt, In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); that a juvenile has the right to counsel, the right to be properly notified of the charges against him or her, the right to confront and cross-examine witnesses and the privilege against self-incrimination. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); and that a juvenile has the right not to be subjected to double jeopardy. Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975).
The trend of our courts in insisting on more stringent due process requirements for juveniles has not resulted, as is sometimes argued, from a softened attitude that children cannot commit violent acts. Indeed, we believe this trend has resulted from an increasing awareness that youth crime is serious and widespread and that society demands that courts deal strictly with violent youth offenders. It has been stated that the juvenile crime rate is the most serious problem confronting the juvenile justice system today. Of all those arrested in North Carolina for crimes committed in 1978, 58.4% were 29 years of age and under, 41.8% were 24 and under, 32.9% were 21 years of age and younger, and 8.89% were 16 and under. N.C. Department of Justice, Police Information Network, Crime in North Carolina: 1978 Uniform Crime Report 110-111 (1979). National statistics reveal that while young offenders from ages 15 to 18 comprise 7% of the total population, they account for 16% of all violent crime arrests and 46% of arrests for major crimes against property. North Carolina Department of Crime Control and Public Safety, A Crime Control Agenda for North Carolina 338 (1978).
*599 Our own General Assembly has responded to these alarming statistics. A new Juvenile Code was enacted by the 1979 General Assembly providing stricter measures for dealing with serious youth crime. For example, as discussed below, the fingerprinting and photographing of serious youth offenders under specified procedures will be permissible effective 1 January 1980. This will allow our criminal justice system to more easily identify and track serious youth offenders. 1979 Advanced Legislative Service, Chapter 815, Section 1, to be codified as new G.S. 7A-596 through 602.
Commensurate with this toughened attitude towards youth crime, is the court system's responsibility to assure due process proceedings for youthful offenders. Court decisions in recent years have recognized the gap between the original conception of the system "and its realities." "With the exception of McKeiver v. Pennsylvania, [supra,] the Court's response to that perception has been to make applicable in juvenile proceedings constitutional guarantees associated with traditional criminal prosecutions."[2]Breed v. Jones, supra, at 528-29, 95 S.Ct. at 1785, 44 L.Ed.2d at 355. Thus, in In re Gault, supra, the Court concluded that a delinquency proceeding subjecting a juvenile to the loss of his liberty for years is comparable in seriousness to a felony prosecution, stating that the term delinquent had "come to involve only slightly less stigma than the term `criminal' applied to adults." 387 U.S. at 24, 87 S.Ct. at 1441, 18 L.Ed.2d at 544.
There is very little to distinguish a hearing such as that held in the case at bar from a traditional criminal prosecution. Indeed, in view of the seriousness of the acts allegedly committed by this respondent and the possibility of long term institutionalization, society should demand a formal adversarial proceeding. In such a case, it becomes incumbent upon the court system to safeguard the rights of those alleged to be delinquent just as much as it would protect the rights of any adult person facing a possible prison sentence. Those who cry for harsher treatment of youthful offenders can surely not argue that accused children should have fewer rights than adult offenders when they risk much the same penalties.
We address the issues raised by this appeal with these factors in mind. Our attempt is to carefully balance the State's police power interest in preserving order and its parens patriae interest in a delinquent child's welfare with the child's constitutional right to due process.
II
ADJUDICATORY HEARING
A.
Respondent first contends that the trial court erred in allowing testimony of a photographic lineup in which his photograph was displayed. He relies on G.S. 15A-502 which, at that time, provided:
§ 15A-502. Photographs and fingerprints.(a) A person charged with the commission of a felony or a misdemeanor may be photographed and his fingerprints may be taken for law-enforcement records only when he has been:
(1) Arrested or committed to a detention facility, or
(2) Committed to imprisonment upon conviction of a crime, or
(3) Convicted of a felony.
(b) This section does not authorize the taking of photographs or fingerprints when the offense charged is a misdemeanor under Chapter 20 of the General Statutes, "Motor Vehicles," for which the penalty authorized does not exceed a fine of five hundred dollars ($500.00), imprisonment for six months, or both.
*600 (c) This section does not authorize the taking of photographs or fingerprints of a "child" as defined for the purposes of G.S. 7A-278(2), unless the case has been transferred to the superior court division pursuant to G.S. 7A-280.
(d) This section does not prevent the taking of photographs, moving pictures, video or sound recordings, fingerprints, or the like to show a condition of intoxication or for other evidentiary use.
(e) Fingerprints or photographs taken pursuant to subsection (a) may be forwarded to the State Bureau of Investigation, the Federal Bureau of Investigation, or other law-enforcement agencies. (Emphasis added.)
The State argues that the statute prevents the taking of photographs or fingerprints of children only for "law-enforcement records" as noted in subsection (a). It asserts that subsection (d) expressly exempts the restriction from situations where the photographs or fingerprints would be for "other evidentiary use." Here, State argues, respondent's photograph was obviously for an "evidentiary use," and suggests that while the statute does not authorize the taking of photographs or fingerprints of children, neither does it prohibit the practice. We do not agree with any such interpretation of the statute. The obvious and unambiguous intent of our legislature was to prohibit the fingerprinting and photographing of any delinquent child, as defined by G.S. 7A-278(2), except in those limited cases where the child had been transferred to the superior court pursuant to G.S. 7A-280.
However, it is not our holding, on the record before us, that the trial court erred in failing to suppress the victim's identification of the child. The trial court found that Mrs. Vaden's identification was made on the basis of her prior knowledge of respondent and not on the basis of the illegal photographs. There is sufficient evidence in the record to support this finding and it is therefore binding on us on appeal. However, we note that the Greensboro Police Department improperly photographed respondent and it would have been error for the trial court to allow admission of any testimony resulting from this illegal procedure into evidence at hearing.
As part of the total revision of the North Carolina Juvenile Code, we also further note that our legislature has recently amended G.S. 15A-502(c). That subsection now provides, "This section does not authorize the taking of photographs or fingerprints of a juvenile except under G.S. 7A-550 [to be codified as G.S. 7A-596] through G.S. 7A-556 [to be codified as G.S. 7A-602]." 1979 N.C. Advanced Legislative Service, Chapter 850.
This amendment became effective upon ratification, 8 June 1979. The new Juvenile Code is not effective until 1 January 1980. 1979 Session Laws, Chapter 815, Section 5. It is obvious therefore that an ambiguity exists in our law in this area until 1 January 1980 since the referenced sections of the new Juvenile Code are not yet the law. We think the better practice would be for law enforcement agencies and the trial courts to abide by the provisions of former G.S. 15A-502(c), keeping in mind the new Code changes, until the new Code is effective. Indeed, new Code provisions on this question are extensive. Nontestimonial identification is defined by new G.S. 7A-596 effective 1 January 1980 to include identification "by fingerprints, palm prints, footprints, measurements, blood specimens, urine specimens, saliva samples, hair samples, or other reasonable physical examination, handwriting exemplars, voice samples, photographs, and lineups or similar identification procedures requiring the presence of a juvenile." 1979 Advanced Legislative Service, Chapter 815 at G.S. 7A-550.[3] The statute provides that nontestimonial identification procedures "shall not be conducted on any juvenile without a court order issued pursuant to this Article." The authorized order may *601 be issued by any judge of the district court or of the superior court "upon request of a prosecutor." (Emphasis added.) 1979 N.C. Advanced Legislative Service, Chapter 815 to be codified as G.S. 7A-596, but currently reported as G.S. 7A-550. The request for the order may be made (1) prior to taking a juvenile into custody, and (2) after custody and prior to the adjudicatory hearing, or (3) prior to trial in superior court where a case is transferred to that court. 1979 N.C. Advanced Legislative Service, Chapter 815, to be codified as G.S. 7A-597, but currently reported as G.S. 7A-551.
New G.S. 7A-598 provides that the order may issue only on affidavit(s) sworn to before the judge which establish the following grounds: (1) that there is probable cause to believe that an offense has been committed which would be punishable by imprisonment for more than two years if committed by an adult, that is, this procedure is specifically limited to situations which would constitute a general misdemeanor or felony, or (2) that there are reasonable grounds to suspect that the juvenile named or described in the affidavit committed the offense, and (3) "that the results of specific nontestimonial identification procedures will be of material aid in determining whether the juvenile named in the affidavit committed the offense." 1979 N.C. Advanced Legislative Service, Chapter 815 at 7A-552.
New G.S. 7A-599 provides that, upon a showing that the grounds specified above exist, the judge may issue the order but only in accordance with the procedures set forth in Article 14 of Chapter 15A of the General Statutes which delineate procedures used for adult defendants. Reference to the designated statutes in Article 14 of Chapter 15A for adult defendants is essential to comply with the new Code provisions for juveniles. For example, trial judges should pay particular attention to G.S. 15A-278 which specifies the necessary contents for the order. G.S. 15A-278(5) provides that the juvenile would be entitled to be represented by counsel at the procedure and would be entitled to the appointment of counsel if he cannot afford to retain one. Law enforcement should note that G.S. 15A-278(6) requires that the child would not be subjected to any interrogation or asked to make any statement during the period of his appearance except that required for voice identification.
New G.S. 7A-600 provides that a juvenile in custody for or charged with an offense which would be punishable by imprisonment for more than two years if committed by an adult may request that nontestimonial identification procedures be conducted upon himself. Should the trial court determine that such a procedure would be a material aid to the juvenile's defense, he must order the State to conduct the procedures. 1979 N.C. Advanced Legislative Service, Chapter 815 at 7A-554.
New G.S. 7A-601 provides detailed instructions for the destruction of records resulting from nontestimonial procedures in certain situations. 1979 N.C. Advanced Legislative Service, Chapter 815 at 7A-555.
While our legislature has wisely provided a sensible procedure for nontestimonial identification procedures for juveniles in light of the substantial percentage of crimes being committed by young people and the necessity for tracking serious youth offenders, it has also indicated its clear intent that only those procedures authorized by this new statute will be tolerated. New G.S. 7A-602 provides, "Any person who willfully violates provisions of this Article which prohibit conducting nontestimonial identification procedures without an order issued by a judge shall be guilty of a misdemeanor." (Emphasis added.) 1979 N.C. Advanced Legislative Service, Chapter 815 at 7A-556. Although our legislature has responded to the demands of the law enforcement community in providing a means for the fingerprinting and photographing of juveniles along with 23 other states which have recently enacted similar legislation, it is clear from the last-quoted statute that our law will not tolerate nontestimonial identification procedures inconsistent with the guidelines provided by the new Juvenile Code.
*602 B.
Respondent next contends that the trial court erred in denying his motion for nonsuit or dismissal at the conclusion of the State's evidence and at the conclusion of all the evidence. He argues that the testimony of Mrs. Vaden raised only a suspicion or conjecture as to his identity. We agree.
A juvenile respondent is entitled to the application of the same rules in weighing the evidence against him on a motion for nonsuit or to dismiss as if he were an adult criminal defendant. In re Alexander, 8 N.C.App. 517, 174 S.E.2d 664 (1970). The applicable rules are well established: Upon a motion for judgment of nonsuit in a criminal action, the evidence must be considered by the court in the light most favorable to the State, all contradictions and discrepancies therein must be resolved in its favor and it must be given the benefit of every reasonable inference to be drawn from the evidence. State v. Bruton, 264 N.C. 488, 142 S.E.2d 169 (1965). When all of the evidence is considered, the question for the court is whether there is substantial evidence to support a finding both that an offense charged in the warrant or bill of indictment has been committed and that the defendant committed it. State v. Bass, 253 N.C. 318, 116 S.E.2d 772 (1960). If, when the evidence is so considered, it is sufficient only to raise a suspicion or conjecture as to either the commission of the offense or the identity of the defendant as the perpetrator of it, the motion for nonsuit should be allowed. State v. Guffey, 252 N.C. 60, 112 S.E.2d 734 (1960). This is true even though the suspicion so aroused by the evidence is strong. State v. Chavis, 270 N.C. 306, 154 S.E.2d 340 (1967).
In its opinion, the Court of Appeals addressed only this assignment of error and affirmed the trial court's denial of respondent's motion for judgment of nonsuit. The majority found the evidence sufficient to connect respondent with the commission of the offense. Judge Webb dissented, stating his belief that Mrs. Vaden did not sufficiently identify the respondent to support a finding that he was the person who assaulted her.
We agree with Judge Webb's dissent. The evidence raises no more than a suspicion or conjecture as to the identity of respondent as the perpetrator. While she stated at one point that respondent looked just like the boy that robbed her, most of her expressions indicated serious doubt. For example, at one point she stated, "I am not sure that this is the boy."
We hold that the State's evidence created only a suspicion that respondent had committed the act with which he was charged. The motion for nonsuit or dismissal should have been allowed. Accord, In re Byers, 295 N.C. 256, 244 S.E.2d 665 (1978); State v. Clyburn, 273 N.C. 284, 159 S.E.2d 868 (1968); State v. Cutler, 271 N.C. 379, 156 S.E.2d 679 (1967); State v. Hewitt, 34 N.C. App. 109, 237 S.E.2d 311 (1977), aff'd, 294 N.C. 316, 239 S.E.2d 833 (1978).
C.
By his next assignment of error, respondent "submits that the law in this State on the degree of proof required in a juvenile case is very vague and has never been discussed by this . . . Court." We do not believe that any serious doubt remains in North Carolina on the question of the quantum of proof required in a juvenile delinquency proceeding. The issue was resolved by the United States Supreme Court nearly a decade ago in In re Winship, supra. There, it was said: "In sum, the constitutional safeguard of proof beyond a reasonable doubt is as much required during the adjudicatory stage of a delinquency proceeding as are those constitutional safeguards applied in Gault . . . ." 397 U.S. at 368, 90 S.Ct. at 1075, 25 L.Ed.2d at 377.
The rule has been followed in North Carolina. See, e. g., In re Gooding, 23 N.C.App. 520, 209 S.E.2d 295 (1974); In re Owens, 22 N.C.App. 313, 206 S.E.2d 342 (1974); In re Roberts, 8 N.C.App. 513, 174 S.E.2d 667 (1970); In re Alexander, supra.
We also note that G.S. 7A-635 of the new Juvenile Code provides that "[t]he allegations *603. . . alleging the juvenile is delinquent shall be proved beyond a reasonable doubt." 1979 N.C. Advanced Legislative Service, Chapter 815 at 7A-574.
We think the trial judge in the instant case correctly understood the required quantum of proof. His order expressly stated his findings "beyond a reasonable doubt."
III.
DISPOSITIONAL HEARING
A.
Respondent next contends that the trial court erred in immediately proceeding to the dispositional stage of the proceedings over his objection.
The record discloses the following exchange between the trial court and counsel for respondent:
COURT: Motion denied. For the record, at this time the Court adjudicates the child to be delinquent in that he did commit the acts as alleged in the petition. Are we ready to proceed with the disposition? (Emphasis added.)
. . . . .
MR. HARRELSON [respondent's counsel]: Judge, from our standpoint, I have been attempting to get a report from the Mental Health Clinic which I think Your Honor would want to hear prior to hearing the matter of disposition. Mr. Byrd advises me that it is not ready. Would you enlighten us as to when it might be ready?
MR. BYRD: I am not sure. He has been seen by two of the doctors there. I called a few minutes ago. He said it was not ready. I don't know whether that means later today or one day next week.
. . . . .
MR. HARRELSON: Judge, we would like an opportunity if Your Honor can see fit, to present the testimony of the people from the Mental Health prior to any disposition.
. . . . .
COURT: Is there anything on disposition for the child?
. . . . .
MR. HARRELSON: Nothing other than we would like the opportunity to get the people from Mental Health here or their report, as the case may be, Your Honor please.
The record indicates that the court immediately proceeded to the dispositional phase of the proceeding and entered the order committing the child to the Division of Youth Services, Department of Human Resources. It is without question from the record that counsel for respondent indicated to the trial court that respondent wished to present evidence prior to disposition and that the trial court proceeded over respondent's objections. The question posed is whether such procedure was proper.
We think the confusion in this area results from the wording of the present version of G.S. 7A-285. One paragraph in that statute provides that:
At the conclusion of the adjudicatory part of the hearing, the court may proceed to the disposition part of the hearing, or the court may continue the case for disposition after the juvenile probation officer or family counselor or other personnel available to the court has secured such social, medical, psychiatric, psychological or other information as may be needed for the court to develop a disposition related to the needs of the child or in the best interest of the State. The disposition part of the hearing may be informal, and the court may consider written reports or other evidence concerning the needs of the child.
Another paragraph in that same statutory section provides, "The child or his parents. . . shall have an opportunity to present evidence if they desire to do so, or they may advise the court concerning the disposition which they believe to be in the best interest of the child."
Hence, G.S. 7A-285 appears to establish three inconsistent standards: (1) The court may immediately proceed to disposition, (2) *604 the court has the discretion to hear psychological reports, and (3) the child has the absolute right to present evidence prior to disposition. In the case at bar, respondent expressed his obvious desire to present psychological evidence which was not yet in final form. The trial judge refused to wait. This refusal, respondent argues, constitutes an abuse of the trial court's discretion.
We are aware that in many juvenile cases, perhaps in a substantial majority of them, little purpose would be served by postponing the dispositional hearing. In those situations, the trial court has before it all the helpful information needed by it to reach an appropriate disposition. However, in a case even approaching the seriousness of that disclosed by the record before us, and most particularly when the juvenile requests it, we believe the better practice is for the trial court to postpone the dispositional hearing until all available information is at hand.
Such a practice would clearly fit into the trend emerging throughout the country. We note that the American Bar Association advocates a formal disposition hearing in juvenile cases with written notice to the parties concerning the time, place and date sufficiently in advance of the hearing to allow adequate time for preparation. Institute of Judicial Administration/American Bar Association Juvenile Justice Standards Project, Standards Relating to Dispositional Procedures § 6.1. The National Advisory Commission on Criminal Justice Standards and Goals goes further and recommends that dispositional hearings be separate and distinct from adjudicatory hearings. National Advisory Commission on Criminal Justice Standards and Goals, Courts § 14.5 (1973). Indeed, our own legislature has recently seen fit to provide for a predispositional investigation to ensure that a judge base his dispositional decision on those social and psychological reports. See 1979 N.C. Session Laws, Chapter 815 to be codified as G.S. 7A-639 effective 1 January 1980. Obviously, however, this newly enacted statute has no application to the case at bar and our holding must be based on an evaluation of the trial court's compliance with our present G.S. 7A-285.
Respondent here was provided his statutory right to be heard but wished to be heard on evidence not yet available. While the trial court's speedy denial of respondent's request for a psychological report may not have been the better practice under G.S. 7A-285, it was not so irregular as to be improper. On the basis of the facts before us and our interpretation of our present statute, therefore, this assignment of error is overruled.
Realizing again that our decision will be made public in close proximity to the time of implementation of the new North Carolina Juvenile Code, we deem it necessary to comment on the statutes of the new Code which would be applicable to this assignment of error. This is particularly so since we perceive that our holding under this assignment of error would have been different had the new Code been in effect at the time of this respondent's hearing.
New G.S. 7A-639, effective 1 January 1980, provides in pertinent part:
The judge shall proceed to the dispositional hearing upon receipt of sufficient social, medical, psychiatric, psychological, and educational information. No predisposition report shall be submitted to or considered by the judge prior to the completion of the adjudicatory hearing. The judge shall permit the juvenile to inspect any predisposition report to be considered by him in making his disposition unless the judge determines that disclosure would seriously harm his treatment or rehabilitation or would violate a promise of confidentiality. Opportunity to offer evidence in rebuttal shall be afforded the juvenile and his parent, guardian, or custodian at the dispositional hearing. . . .
1979 N.C. Advanced Legislative Service, supra at 7A-578.
New G.S. 7A-640, also effective on 1 January 1980, provides that:
The dispositional hearing may be informal, and the judge may consider written *605 reports or other evidence concerning the needs of the juvenile. The juvenile and his parent, guardian, or custodian shall have an opportunity to present evidence, and they may advise the judge concerning the disposition they believe to be in the best interest of the juvenile. (Emphasis added.)
Id. at 7A-579.
While the legislature, in enacting the new Juvenile Code, did not make crystal clear the extent to which the trial court must postpone the dispositional hearing in order to give the juvenile an opportunity to be heard, we think the underlined portions of the statutes noted above make clear the legislative intent that the dispositional hearing must be continued for the respondent to present evidence when he requests such a continuance. This is particularly so since new G.S. 7A-632 provides, "The judge may continue at any time any case to allow additional factual evidence, social information or other information needed in the best interest of the juvenile or in the interest of justice." 1979 N.C. Advanced Legislative Service, supra at 7A-571.
Again, we realize that a continued dispositional hearing will be unnecessary in the vast majority of cases. We do not seek here to diminish the trial court's much-needed discretion in those cases. We merely suggest that effective 1 January 1980, before a trial court can commit a juvenile adjudicated delinquent to a State training school, it must, upon specific request of the juvenile or his counsel, continue the dispositional hearing for a reasonable time to allow the juvenile to present evidence to the court about his disposition. The period of time required for the continuance is a matter in the trial court's discretion but we believe it should take into account the source of the evidence which the juvenile seeks to present. This does not, of course, alter the trial court's authority to retain the juvenile in custody pending the dispositional hearing, pursuant to other statutory authority.
The statutory right for the juvenile to present evidence before his disposition is meaningless unless he is given time to prepare it. Before the critical decision to remove a child from society is made, we believe the child's right to present evidence should be zealously guarded. This is not a `grudging gesture to a ritualistic requirement.' It is `of the essence of justice.' Cf. Kent v. United States, 383 U.S. 541, 561, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84, 97 (1966) (Speaking of the child's right to counsel).
B.
Respondent next contends that the trial court erred at the dispositional hearing in hearing evidence about acts for which he had not been adjudicated delinquent.
Respondent's concern over the trial court's handling of his dispositional hearing is best understood by quoting an exchange between the court and counsel. Following the trial court's adjudication that respondent was a delinquent child, the record discloses in pertinent part the following exchange:
COURT: Does he have prior juvenile record? (sic)
MR. BYRD: Your Honor, he had been placed on probation a month prior to the date of this incident, so I had known him for about three weeks to a month prior to this incident and he was placed on probation for shoplifting, took two electric auto-race games from Jordan Marsh at Four Seasons valued at $4.30.
MR. MOORE: Wasn't there some other articles he took too?
MR. BYRD: Two entail racing gamesI am sorrythree tubes of glue, that's what it was. Would you care to see that Order?
COURT: All right.
MR. HARRELSON: Judge, we would like an opportunity, if Your Honor can see fit, to present the testimony of the people from the Mental Health prior to any disposition.
COURT: Do you have an (sic) evidence as to disposition?
MR. MOORE: Your Honor, please, except for the Court Order that stands, we *606 have several matters retained by the Greensboro Police Department.
MR. HARRELSON: We OBJECT to anything on disposition, if Your Honor please, unless be adjudication of delinquency.
COURT: Well, OBJECTION OVERRULED.
Q. Detective Allen, would you tell the Court any matters that werehow many matters have been retained by the Greensboro Police Department regarding Jerry Vinson?
MR. HARRELSON: OBJECTION.
COURT: I am not sure I understand the question.
MR. MOORE: Let me rephrase the question.
Q. Detective Allen, have there been any charges, any allegations of delinquency that have been retained by the Greensboro Police Department, Juvenile Division?
MR. HARRELSON: OBJECTION.
COURT: OVERRULED.
A. Yes, there have.
Q. How many have there been?
MR. HARRELSON: OBJECTION.
COURT: OVERRULED.
A. Three others.
Q. What were those specific allegations?
MR. HARRELSON: OBJECTION.
COURT: OVERRULED.
A. There was an assault, a larceny and receiving, and a larceny.
MR. MOORE: And would Your Honor care to hear any particulars of the matters?
COURT: Was obviously more than that. Obviously more than the larceny and receiving and assault.
A. There was one larceny, 7/20/76; one larceny and receiving 12/12/77; and one assault, 4/10/74; and then, of course, the larceny, shoplifting which was adjudicated February 16, `78.
MR. HARRELSON: I OBJECT, move to strike all of this. No evidence he was convicted of any of this other than the one which was handed up to Your Honor.
COURT: Was there not a rape charge contained by the Police Department?
A. There was a petition filed.
COURT: Petition filed?
A. Yes, sir.
COURT: That has been dismissed?
A. Yes, sir.
COURT: That matter cannot be adjudicated?
A. Yes, sir. And with Mrs. Vaden he stated that he also had sexual intercourse with her and I asked him to describe what sexual intercourse was with Mrs. Vaden as I had with Mrs. Breedlove. Again, he stated that he took his thing and put it in her hole and he also tried to get her to suck his thing.
COURT: How old was he at that time, 13?
A. Yes, sir.
COURT: Anything further on disposition?
Q. Did he say anything in the statements about Mrs. Breedlove about the bathtub?
A. Yes, sir, he did.
. . . . .
COURT: Is there anything on disposition for the child?
MR. HARRELSON: Nothing other than we would like the opportunity to get the people from Mental Health here or their report, as the case may be, Your Honor please.
Following this exchange, the court then made findings and committed the child to the Division of Youth Services, Department of Human Resources for placement in a State training school.
The trial court's order found "[t]hat the child began committing sexual assaults at age 9; that he has continued to commit crimes of a sexual nature including the rape and attempted rape of elderly women; and that he is a dangerous and vicious sex offender, despite his being only 13 years of age." Respondent correctly states that there is nothing in the record to substantiate *607 these findings other than the inquiries allowed on disposition, as noted above.
The general rule in North Carolina for adult sentencing is that the trial court has wide latitude to hear evidence at disposition. State v. Perry, 265 N.C. 517, 144 S.E.2d 591 (1965); State v. Pope, 257 N.C. 326, 126 S.E.2d 126 (1962). If the punishment imposed is within statutory limits, there is a presumption that the sentence is regular and valid. That presumption, however, is not conclusive and if the judge by his own pronouncement shows clearly that he imposed the sentence for a cause not embraced within the indictment and the plea, the presumption is overcome and the sentence is in violation of defendant's rights. State v. Swinney, 271 N.C. 130, 155 S.E.2d 545 (1967).
Disposition of a juvenile, however, involves a philosophy far different from adult sentencing. In re Burrus, supra, makes clear that a delinquent child is not a "criminal." The inference is that a juvenile's disposition is not intended to be a punishment but rather an attempt to rehabilitate him.
G.S. 7A-286 provides in pertinent part that, "[t]he judge shall select the disposition which provides for the protection, treatment, rehabilitation or correction of the child after considering the factual evidence, the needs of the child, and the available resources, as may be appropriate in each case." We also note that the new Juvenile Code adds little guidance with respect to the trial court's authority to hear matters on disposition such as those disclosed by this record. The new Code will provide at G.S. 7A-640 only that, "[t]he dispositional hearing may be informal, and the judge may consider written reports or other evidence concerning the needs of the juvenile." New G.S. 7A-646 provides, "The purpose of dispositions in juvenile actions is to design an appropriate plan to meet the needs of the juvenile and to achieve the objectives of the State in exercising jurisdiction." 1979 Advanced Legislative Service, supra at 7A-580.
With correction foremost in mind, it has been the practice in this jurisdiction to consider all manner of evidence at the dispositional stage. Indeed, the Rules of Procedure Applicable to Children in the District Court, commonly referred to as the Brown Book, states that "[e]vidence that is material and relevant, including hearsay and opinion, is admissible [at disposition], and entitled to such weight as the judge may deem proper." N.C. Administrative Office of the Courts, Rules of Procedure Applicable to Children in the District Court 50 (1977).
The practice of considering a broad spectrum of information at disposition is not unique to North Carolina juvenile law. The pertinent ABA Juvenile Justice Standard recommends:
2.3 Information Base.
A. The information essential to a disposition should consist of the juvenile's age; the nature and circumstances of the offense or offenses upon which the underlying adjudication is based, such information not being limited to that which was or may be introduced at the adjudication; and any prior record of adjudicated delinquency and disposition thereof. (Emphasis added.)
IJA/ABA Juvenile Justice Standards Project, supra at 31.
The commentary to this section explains: The kind of information that is relevant and helpful in arriving at a suitable disposition cannot be separated from the goal or goals sought by the disposition and, to some extent, the nature of the dispositional discretion afforded the judge. As a general proposition, it can be said that the stronger the commitment to a benevolent or therapeutic objective, the stronger the claim to broader information about the juvenile and his or her situation. On the other hand, the stronger the commitment to a disposition fashioned on "just desserts" principles, the less need for information, beyond the nature and circumstances of the offense, age, and the prior record of adjudicated delinquency.
Id. at 31-32.
North Carolina, with its strong commitment to a parens patriae "benevolent objective" *608 thus may properly consider a wide variety of information at disposition. Here, however, respondent argues in effect that consideration of unadjudicated delinquent acts, allegations without proof, transcends the parens patriae interest of the State and violates his right to fundamental fairness, as that right has been posited in In re Winship, supra.
The same ABA commentary that explains Standard 2.3 goes on to say:
Nothing in subsections B. and C. prohibits the inclusion of other information relating to prior delinquency. However, such items as "warnings" and arrests, or conclusions about being an important member of a gangcf. United States v. Weston, 448 F.2d 626 (9th Cir. 1971) (an unsupported charge that the defendant was the chief supplier of heroin for the area led to vacation of the sentence) should be carefully scrutinized both for accuracy and weight. Since disclosure of all dispositional information is mandatory under Standard 2.4, the risks of false or misleading information are minimized.
The dispositional judge should be cautious, therefore, in drawing conclusions of previous misconduct from information that has not resulted in official action. In Townsend v. Burke, 334 U.S. 736[, 68 S.Ct. 1252, 92 L.Ed. 1690] (1948), the Court invalidated a sentence imposed on an uncounseled defendant where the trial judge relied on misinformation, or on an erroneous reading of the defendant's prior record. Where a judge relied on a prior conviction obtained in violation of Gideon v. Wainwright, 372 U.S. 335[, 83 S.Ct. 792, 9 L.Ed.2d 799] (1963) for sentencing purposes, the Court once again reversed, Tucker v. United States, 404 U.S. 443[, 92 S.Ct. 589, 30 L.Ed.2d 592] (1972). These decisions would appear to have equal applicability in the juvenile delinquency process.
IJA/ABA Juvenile Justice Standards Project, supra at 32.
Here, the trial judge apparently considered nonadjudicated matters reaching back to the time respondent was nine years of age. The record is devoid of the source of some of the information and is also devoid of any finding that this information was accurate. While neither the present statute nor the new Code prohibits the consideration of these matters on disposition, we cannot believe that such a consideration was in conformity with the due process rights with which respondent is invested. We think it the far better practice to limit consideration of past delinquent acts in a dispositional hearing to those which have been adjudicated or, at the very least, formally petitioned.
In light of other errors found in respondent's hearing, it is unnecessary for us to determine whether he would be entitled to a new dispositional hearing on the facts before us. However, for the guidance of trial courts henceforth, we hold that, under both present law and the new Juvenile Code, effective 1 January 1980, trial courts giving consideration at a dispositional hearing to unadjudicated acts allegedly committed by a juvenile, unrelated to that for which he stands petitioned, must first determine that such information is reliable and accurate and that it was competently obtained. We do not mean to imply that a full "trial" must be held to make the required determination about the unrelated acts. The trial court should have wide discretion in making the required determination from the sources available to it, but it must make the determination.
C.
Respondent finally contends that the trial court failed to make adequate findings of fact to support the disposition order.
Present G.S. 7A-286 provides in pertinent part:
(5) In the case of a child who is delinquent, the court may commit the child to the Department of Human Resources, for placement in one of the residential programs operated by the Department, provided the court finds that such child meets each of the following four criteria for commitment *609 to an institution and supports such finding with appropriate findings of fact in the order of commitment as follows:
a. The child has not or would not adjust in his own home on probation or while other services are being provided;
b. Community-based residential care has already been utilized or would not be successful or is not available;
c. The child's behavior constitutes some threat to persons or property in the community or to the child's own safety or personal welfare.
d. If the child is less than 10 years of age or his offense would not be a crime if committed by an adult, the court must find that all community-level alternatives for services and residential care have been exhausted.. . .
In the present case, the trial court entered its findings by simply reciting the statutory language. Respondent argues that the court erred in finding he was not capable of being rehabilitated in the community pursuant to G.S. 7A-286(5)(a) primarily because it did not wait to consider the proffered but unfinished psychological report.
Sufficiency of fact finding under G.S. 7A-286 has frequently been challenged. In In re Steele, 20 N.C.App. 522, 201 S.E.2d 709 (1974), the Court of Appeals upheld the sufficiency of a commitment order nearly identical with this one. There, the juvenile had appealed saying that, while the judge may have found as a fact that community resources were insufficient, he had not considered evidence of that finding. The Court of Appeals said in a one paragraph decision:
We agree that the statute gives the trial judge ample tools to make a study in order to dispose of the case "to provide such protection, treatment, rehabilitation or correction as may be appropriate in relation to the needs of each child subject to juvenile jurisdiction and the best interest of the State." We do not think, however, that it is incumbent upon the trial judge to incorporate detailed findings of fact in his order. We think the order in the instant case was adequate and was supported by the evidence.
Id. at 525, 201 S.E.2d at 711-12.
This opinion of our Court of Appeals, which allows fairly relaxed formal fact finding, did not occur in a vacuum. Fact finding has long been a troublesome issue for juvenile judges. This is so in many instances simply because the judge does not have the necessary clerical help to have an order prepared. In a recent survey, fully 32% of juvenile commitment orders reviewed in North Carolina contained no findings of fact.[4] While we find such an absolute omission disturbing, as it makes appellate review nearly impossible, we do not believe the fact-finding order need be as detailed as that advocated by the IJA/ABA Standards which advise:
7.1 Findings of fact and formal requisites.
A. The judge should determine the appropriate disposition as expeditiously as possible after the dispositional hearing, and when the disposition is imposed.
1. make specific findings on all controverted issues of fact, and on the weight attached to all significant dispositional facts in arriving at the disposition decision;
2. state for the record, in the presence of the juvenile, the reasons for selecting the particular disposition and the objective or objectives desired to be achieved thereby;
3. when the disposition involves any deprivation of liberty or any form of coercion, indicate for the record those alternative dispositions, including particular places and programs, that were explored and the reason for their rejection;. . . .
IJA/ABA Juvenile Justice Standards Project, supra at 51.
*610 This standard was considered by the drafters of the new Juvenile Code and rejected in favor of a more flexible fact finding order. New G.S. 7A-651 and 7A-652, effective 1 January 1980, provide:
§ 7A-585 [to be codified as 7A-651]. Dispositional order.The dispositional order shall be in writing and shall contain appropriate findings of fact and conclusions of law. The judge shall state with particularity, both orally and in the written order of disposition, the precise terms of the disposition including the kind, duration and the person who is responsible for carrying out the disposition and the person or agency in whom custody is vested.
§ 7A-586 [to be codified as 7A-652]. Commitment of a delinquent juvenile to the Division of Youth Services.(1) A delinquent juvenile 10 years of age or more may be committed to the Division of Youth Services for placement in one of the residential facilities operated by the Division if the judge finds that the alternatives to commitment as contained in G.S. 7A-583 [to be codified as 7A-649] have been attempted unsuccessfully or are inappropriate and that the juvenile's behavior constitutes a threat to persons or property in the community.
The required findings, therefore, pursuant to new G.S. 7A-652 are that (1) alternatives to commitment available in G.S. 7A-649 have been unsuccessfully attempted or are inappropriate, and (2) the juvenile's behavior is a threat. We note that the requirements for commitment are far more stringent under the new Juvenile Code because more dispositional alternatives are available under new G.S. 7A-649.
We encourage juvenile judges to make the findings required by the statutes to support orders of commitment to the Department of Human Resources, Division of Youth Services. However, the essential element in the commitment order is not that it recites detailed findings beyond the four enumerated by G.S. 7A-286(5) or the two tests enumerated in new G.S. 7A-652, but that those enumerated findings are supported by some evidence in the record of the dispositional hearing. This is necessary because of the seriousness of the ordered disposition and the probability of review at the appellate level. We therefore hold that, while the final commitment order need not formally state all the alternatives considered by a trial judge in committing a child, a finding that alternatives are inappropriate must be supported by some showing in the record that the sentencing authority at least heard or considered evidence as to what those alternative methods of rehabilitating were.
From the record before us, we are unable to find evidence to support the trial court's finding that the four enumerated factors in G.S. 7A-286(5) had been met. This assignment of error is therefore sustained.
Since the motion for nonsuit should have been allowed, we reverse the Court of Appeals and order this proceeding dismissed.
Reversed.
BROCK, J., took no part in the consideration or decision of this case.
Chief Justice BRANCH concurring in result.
I am of the opinion that the crucial questions determinative of this appeal are (1) whether the trial court erred in allowing testimony of a photographic lineup in which the child's photograph was displayed and (2) whether the trial court erred in denying the child's motion for nonsuit. I agree with the holding of the majority on both of these questions. However, the majority of the twenty-seven page opinion is devoted to a discussion of statutes which do not become effective until 1 January 1980. All such discussion is, of course, dictum. I do not believe that this Court should adopt a policy of considering matters which are not properly before it. Admittedly, the content of the majority opinion is a learned and complete consideration of matter which might properly come before us at some future date. However, I do not believe that it is the function of this Court to anticipate questions of law and to deliver, in effect, *611 advisory opinions which cannot have the force of precedent.
Justices COPELAND and EXUM join in this concurring opinion.
NOTES
[1] Codification numbers used within this opinion are those we believe will conform to the final codification numbers supplied by the code publisher. These numbers do not conform to those in the 1979 North Carolina Advanced Legislative Service, Chapter 815, but wherever possible, the Advanced Legislative numbers will be noted.
[2] We note that in at least one recent United States Supreme Court case, Fare v. Michael C., ___ U.S. ___, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979), the Court has held a juvenile has no constitutional right to consult with his or her probation officer prior to questioning by the police. The case, however, re-emphasized the Gault holding that the juvenile has a right to counsel at these times and distinguished probation officers as being people not within the purview of `counsel.' We feel this in no way erodes due process rights of juveniles. See also, Riley v. Illinois, 435 U.S. 1000, 98 S.Ct. 1657, 56 L.Ed.2d 91 (1978) (mem.).
[3] We note that the statute neither authorizes nor forbids the use of the breathalyzer test or polygraph, Cf. North Carolina Juvenile Code Revision Committee, 1979 Report 185 (1979) (Citing rationale for this silence).
[4] Study done by Diane Porter of the Division of Youth Services, reported in the minutes of the Juvenile Code Revision Committee, 31 March 1978.