Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Lail

Filed: December 15, 1981.

IN THE MATTER OF KENNETH RAY LAIL, JUVENILE


Appeal by respondent from Martin (Bill J.), Judge. Judgment entered 18 November 1980 in District Court, Catawba County. Heard in the Court of Appeals 11 November 1981.

Martin (Robert M.), Judge. Judges Webb and Wells concur.

Martin

G.S. 7A-636 provides that the hearings in juvenile proceedings shall be recorded by stenographic notes or by electronic or mechanical means. The proceedings in the present case were recorded by a tape recorder, but respondent argues that the recording was so inadequate as to deny him effective appellate review. He cites several instances in which the record on appeal indicates either that remarks were inaudible or that no verbal answer was given to a question. Respondent argues that these matters cannot be reconstructed; however, he does not explain why he did not invoke the procedure provided by App. R. 11 for establishing the content of the unrecorded remarks. He does not argue that this procedure is inadequate. Furthermore, respondent does not argue any error in the unrecorded remarks. Respondent has therefore failed to show prejudice and his assignment of error is overruled. State v. Sanders, 280 N.C. 67, 185 S.E.2d 137 (1971); State v. Tripp, 52 N.C. App. 244, 278 S.E.2d 592 (1981).

By his second assignment of error, the respondent argues that the trial court erred by denying him a continuance when one of his subpoenaed witnesses failed to appear. We disagree. G.S. 7A-632 provides, "[t]he 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." Still, the grounds for a motion for a continuance must be fully established. When the motion is based upon the absence of a witness, the motion should be supported by an affidavit indicating the facts to be proved by the witness. State v. Rigsbee, 285 N.C. 708, 208 S.E.2d 656 (1974); State v. Mitchell, 27 N.C. App. 313, 219 S.E.2d 295 (1975), disc. review denied, 289 N.C. 301, 222 S.E.2d 701 (1976). Respondent failed to support his motion in the present case, and we find no error in the trial court's ruling.

Respondent next presents several arguments with respect to various evidentiary rulings by the trial court. We have examined each of the arguments with care, and we find no prejudicial error in any of them. Respondent also argues that the evidence was insufficient to support an adjudication of delinquency; however, we again disagree. The observations of Ken Dale and of the officer who examined the vending machine were sufficient to avoid dismissal. Although respondent's attorney challenged the credibility of Dale's identification testimony during cross-examination, his examination went only to the weight to be afforded the testimony, not its sufficiency.

Respondent's final argument does have merit. Immediately after announcing the finding of delinquency, the trial judge proceeded to announce his disposition. When respondent's attorney attempted to speak on disposition, the trial judge cut him off by stating, "[t]he court has made its decision." The North Carolina Juvenile Code provides:

§ 7A-639. Predisposition investigation and report.

The judge shall proceed to the dispositional hearing upon receipt of sufficient social, medical, psychiatric, psychological, and educational information. . . .

§ 7A-640. Dispositional hearing.

The dispositional hearing may be informal, and the judge may consider written 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.