In Interest of A. D. R., a child under seventeen years of age. STATE of Missouri, Respondent, v. Arthur Daniel RONE, Jr., Appellant.
Nos. 61177, 56658 and 57596
Supreme Court of Missouri, En Banc.
Aug. 18, 1980.
515 S.W.2d 438
The damage done to the appellant‘s cause by the introduction of this report into evidence and its exhibition to the jury, was then compounded by the state‘s repeated mention of the report throughout the course of the trial. It was stressed and emphasized to the jury five times in the prosecutor‘s final argument. The prosecutor‘s heavy reliance on this improper evidence is readily seen in just one example of these five statements in final argument:
“Mr. Repp did not like the results of that test so he hired his own expert and you‘ve seen and you have read, because I watched you, the results of his own expert who I tried to subpoena but he didn‘t get here. And of course Mr. Repp didn‘t have him here. But we know what his conclusion was. That Bill Repp did write these checks that were passed at Town and Country Supermarket.”
When time came for their deliberation it is reasonable to assume that the jury retired with this incriminating report foremost on their minds.
I would reverse this case and remand for a new trial on the grounds that appellant has suffered a manifest injustice as a result of the improper admission into evidence of the expert‘s report without proper foundation and without affording appellant his right to confront and cross-examine the expert witness against him.
John Ashcroft, Atty. Gen., Robert Presson, Asst. Atty. Gen., Jefferson City, for respondent.
RENDLEN, Judge.
In this post-conviction civil action, movant asks this Court to recall the mandate and vacate our opinion affirming his robbery conviction, contending that defense counsel in the criminal appeal, was ineffective by constitutional standards. Such action, cognizable by our Court as the tribunal which heard and determined the appeal, is limited to consideration of that single issue, see Hemphill v. State, 566 S.W.2d 200, 208 (Mo. banc 1978), and governed by procedures prescribed for Rule 27.26 proceedings insofar as applicable.
Recently in Seales v. State, 580 S.W.2d 733, 736 (Mo. banc 1979), we reiterated the standard for appraising ineffective assistance of counsel claims in post-conviction proceedings as follows: “In order to prevail on a claim of ineffective assistance of counsel, a defendant must show that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances and that he was prejudiced thereby.” The standard there enunciated for gauging trial counsel‘s conduct is appropriate for general application and is now adopted for evaluation of appellate counsel‘s actions.
Rone first asserts appellate counsel was ineffective in failing to properly preserve and present the then minor defendant‘s (movant here) challenge to the juvenile court‘s relinquishment of jurisdiction and because of that failure the issue was not reached on appeal, see In re A.D.R., 515 S.W.2d 438, 439 (Mo. banc 1974).1
When first considering Rone‘s motion to recall the mandate we made the preliminary determination that appellate counsel had failed to properly preserve the issue of the alleged error in the juvenile court‘s termination proceeding and as a result the issue was not reached on appeal. Accordingly, we recalled our mandate. However, having now reviewed the record and considered the merit of movant‘s contention we find, for reasons following, the juvenile court acted properly in terminating its jurisdiction allowing Rone‘s trial as an adult. Thus no prejudice flowed from the failure to preserve the issue and Rone‘s contention of ineffective assistance of appellate counsel must be denied.
Arthur Rone was convicted of first degree robbery in the circuit court of Jackson County September 29, 1971. The Jackson County Juvenile Court, pursuant to
At about 9:00 p.m., December 14, 1970, the Abashion Confectionery in Kansas City was robbed by two youths, one of whom confronted the victim with a shotgun and said “Look at this, this is a holdup.” The clerk thought it was a joke, but that impression was quickly dispelled when the robber shoved the muzzle against his chest and demanded money. Taking some currency, the robbers left and one of them, Rone, fired a blast into the ceiling of the store.
Defendant (movant here) was taken to the 27th Street police station and there given the Miranda warnings. According to Officer Bryant, during the booking process and not in response to any question, defendant volunteered that it wasn‘t his day, that the money taken in the holdup was not worth it, and that he wished he had his leather coat left in the van. Discovering Rone was sixteen years of age the officer took him to the youth unit at the downtown police headquarters where they met a deputy juvenile officer, known to Rone from the “parental home.” In the presence of this juvenile officer Rone went to another part of the same building.
It is unclear whether Rone‘s parents were notified then of his arrest but one of the investigation officers testified that some of Rone‘s personal articles were delivered to his parents when they came to police headquarters, apparently on the night of his arrest. On the other hand one of Rone‘s parents denied being present at the police station. Having been advised of his Miranda rights on three separate occasions and while in the presence of Deputy Juvenile Officer Gardner, Rone made additional statements confessing complicity in the crime.
A petition was filed by the juvenile officer of Jackson County alleging that Rone participated in an armed robbery. Subsequently, on December 18, 1970, that officer filed a motion requesting dismissal of the petition, so Rone might be tried as an adult. At the hearing conducted January 29, 1971, under
Movant contends that chapter 211, RSMo 1969 creates a “right” to treatment for persons subject to the jurisdiction of the juvenile court and that the Juvenile Court‘s relinquishment of jurisdiction abrogated that “right.” In this connection it has been held that when the State in its role as parens patriae places a child in a juvenile facility under restraint of liberty, it has a concomitant obligation to provide treatment. Nelson v. Heyne, 491 F.2d 352, 360 (7th Cir. 1974), cert. denied, 417 U.S. 976 (1974); Martarella v. Kelley, 349 F.Supp. 575, 585 (S.D.N.Y. 1972). In those cases it was stated the right to treatment emanates from the eighth and fourteenth amendments to the
While a laudable purpose of our juvenile code is the rehabilitation of erring youths, State ex rel. Shartel v. Trimble, 333 Mo. 888, 63 S.W.2d 37, 38 (Mo. 1933), the statute has been described as a complete code, with each section to be construed in relation to the other, State v. Williams, 473 S.W.2d 382, 383 (Mo. 1971). The legislature by providing that one not a proper subject may be prosecuted as an adult clearly intended in a proper case that consideration of societal needs and the likely unrewarding ameliorative effect of the juvenile justice system require application of the general law. Pertinent here is the following statement of this Court responding to a constitutional attack on an earlier statute: “Boys, like others of the species, are not cast in the same mould. Measures that are sufficient to reclaim one are wholly without avail as to another.” State ex rel. Boyd v. Rutledge, 321 Mo. 1090, 13 S.W.2d 1061, 1066 (Mo. banc 1929).
Against this background we examine the question of whether the Jackson County Juvenile Court erred in relinquishing its jurisdiction.
Following Kent v. United States, 383 U.S. 541 (1966), our Court has held the juvenile in such proceedings is entitled to notice, access to social reports and investigations pertaining to him, a hearing in which he is represented by counsel and, to permit meaningful appellate review, a statement of reasons for the termination. State ex. rel. T.J.H. v. Bills, 504 S.W.2d 76, 80-81 (Mo. banc 1974). However, the Supreme Court of the United States “has never attempted to prescribe criteria for, or the nature of quantum of evidence that must support, a decision to transfer a juvenile for trial in an adult court.” Breed v. Jones, 421 U.S. 519, 537 (1975). Missouri decisions have identified a variety of factors germane to a decision to terminate juvenile court jurisdiction in
Relevant factual criteria which have been used by the courts as a basis for such discretion are 1) whether the juvenile‘s age, maturity, experience and development are such as to require prosecution under the general law, Coney v. State, 491 S.W.2d 501, 512 (Mo. 1973), 2) whether or not the juvenile had a mental disease or defect which would prevent him from knowing or appreciating the nature, quality or wrongfulness of his conduct and which would render him incapable of conforming his conduct to the requirements of the law, State v. Kemper, supra, at 249, 3) whether or not the nature and seriousness of the juvenile‘s conduct constitutes a threat to the community, State ex rel. Arbeiter v. Reagan, 427 S.W.2d 371, 377 (Mo. banc 1968), 4) whether or not the act committed by the juvenile was done in a violent and vicious manner, Coney v. State, supra, at 512, and, 5) whether or not there is a reasonable likelihood that like further conduct will not be deterred by continuing the juvenile under the juvenile law process, State ex rel. T.J.H. v. Bills, 495 S.W.2d 722, 728 (Mo.App. 1973).
Pertinent to this determination are prior contacts of the youth with law enforcement authorities which reflect behavior patterns demonstrating imperviousness to the juvenile court‘s rehabilitative efforts. See Richardson v. State, 555 S.W.2d 83, 87 (Mo.App. 1977).
It is important to be mindful that appellate review of a juvenile court‘s decision to terminate jurisdiction as to a youthful offender is limited to a determination of
Rone had been referred to juvenile authorities on 15 previous occasions during the 20 months preceding the robbery. Those referrals reveal an escalating pattern of criminal behavior culminating in violent attacks on several victims. In the 8 months immediately before the armed robbery under consideration, Rone was referred for attempted larceny, rape, common assault and flourishing a deadly weapon during a fight in a pool hall. Further, he was unresponsive to the rehabilitative efforts of Jackson County juvenile authorities. After originally having been placed on probation, the referrals for criminal conduct continued and Rone was committed to McCune Boys Home in Jackson County. While there he was referred for auto theft, indecent exposure towards a teacher, and cited three times for making sexual overtures to female staff members. Subsequently he was released from McCune and returned to probationary status. Though there was testimony concerning the absence of referrals for other criminal offenses, while on probation he committed the armed robbery in question during which he fired a shotgun. Placing a loaded shotgun against the chest of a store clerk and then, having already obtained the proceeds of the robbery, discharging the weapon on his way from the store, may properly be characterized as a dangerous act, demonstrating a proclivity for violence and a disdainful attitude for the safety of others.
James F. Walsh, Director of Juvenile Court Services for Jackson County, testified that Rone was beyond the treatment scope of the Jackson County Juvenile Court and that Rone would be dangerous if he became associated with an older person in open society who would encourage him to use a weapon. Walsh‘s opinion was based upon Rone‘s behavior pattern, his overall negative adjustment, the nature of the crime, his association with adults and criminal activity, and his demonstrated lack of impulse control. Additionally, Rone‘s inability to control himself rendered the Missouri State Training School at Boonville inadequate. Walsh stated, “This boy‘s [Rone‘s] adjustment pattern in a wide open setting very similar to Boonville has been poor. His impulse control in associating with people that seem to lead him on or talk him into more serious offenses is pretty evident, so at a facility like Boonville that is open, cottage type, campus type of orientation with this young man‘s lack of impulse control would not be sufficient to keep him in while he is in essence being worked with.”
Joseph Steffen, employed by the Jackson County Juvenile Court, stated existing juvenile court facilities were inadequate for Rone‘s treatment and accordingly recommended his trial as an adult.
In its order dismissing the juvenile petition, effectively terminating its jurisdiction, the juvenile court found there were no adequate juvenile facilities for Rone‘s treatment including the McCune Boys Home and the State Training School at Boonville, that Rone was not amenable to probation and that he constituted a danger to the community. Detailing Rone‘s previous referrals to the juvenile court and the previous efforts at treatment the court concluded that Rone, “is beyond further rehabilitative care, treatment, and services of this court; that every possible means and resource under the Juvenile Code to rehabilitate said child has been exhausted; that he would not benefit from any further care, treatment, and services under the Juvenile Code.” From this it is clear the juvenile court reasonably exercised its discretion.
Appellant also attacks the juvenile court‘s order because there was no explicit finding that the termination of jurisdiction was conducive to Rone‘s welfare and argues that the order was not supported by the evidence. This contention too, is not well taken. The ultimate purpose for allowing a
It is also asserted that the absence of adequate facilities cannot support a juvenile court‘s decision to terminate jurisdiction.3 Whether vel non the establishment of long term confinement centers for violent juvenile offenders might be advisable, the juvenile court has the duty to review the amenability of the juvenile to treatment resources presently available. While availability of juvenile court services and the likely response thereto are to be considered, they are not as movant urges, the ultimate determinative factors. As stated in State v. Kemper, 535 S.W.2d 241, 251-252 (Mo.App. 1976), “unfortunately juvenile courts are frequently presented with cases where the entire gamut of the facilities of that institution have been made available to a child, without beneficial results. In such a case the futility of further efforts within the juvenile system becomes an obvious factor in that court‘s relinquishment of jurisdiction. However, waiver is not to be conditioned upon lack of success in the juvenile process, when the court, as it did in this case, concludes that the relevant factors, properly found and considered, lead to the conclusion that the juvenile system is not the proper forum for the handling of the particular youth involved.”
We conclude that the record of the termination hearing demonstrates a careful attention to procedural standards and no abuse of the juvenile court‘s discretion.4 Hence it cannot be said movant was prejudiced by appellate counsel‘s failure to have properly preserved the point in the criminal appeal and this aspect of the claim of ineffective assistance of counsel is denied.
Movant‘s next claim concerns appellate counsel‘s alleged failure to present certain arguments in his attempt to overturn the trial court‘s admission of Rone‘s confession in evidence. Addressing this contention it should first be noted that during trial defendant objected to the use of his confession, raising the terms of
Movant now advances a different ground for his objection to the trial court‘s action, to wit: that Rone‘s in-custody confession was taken without notifying his parents and that this constitutes a violation of
The record abundantly demonstrates the state sustained its burden of showing voluntariness. State v. Higgins, 592 S.W.2d 151, 158 (Mo. banc 1979), and in the totality of the circumstances we find no error in admission of the confession. Rone, a sixteen year old of above average intelligence and extensive experience with law enforcement officials, was interviewed by a Kansas City police officer in the presence of but without participation by a juvenile officer. Before the interrogation, Rone was advised of his rights on three occasions. Despite his assertion the statement was elicited by trickery, Rone admitted the statement was made voluntarily, without mistreatment or coercion on the part of the interrogating officer and after being told the statement could be used against him in court. Moreover Rone previously had voluntarily admitted his participation in the robbery during the booking process prior to any interrogation. In the totality of the circumstances, it cannot be said the trial court erred in admitting the statement. Because this additional ground for objection to admission of the confession could not have prevailed (had it been raised at trial) it cannot be said the trial court‘s ruling constituted reversible error. A fortiori, no manifest injustice or miscarriage of justice resulted and we may not condemn as constitutionally ineffective, appellate counsel‘s failure to raise this specious additional argument as plain error. Seales v. State, 580 S.W.2d 733, 736 (Mo. banc 1979).8
It is therefore ordered that the previous mandate in this cause reissue and we affirm our opinion In re A.D.R., 515 S.W.2d 438 (Mo. banc 1974).
MORGAN and HIGGINS, JJ., concur.
WELLIVER, J., concurs in part in separate opinion filed.
SEILER, J., dissents in separate dissenting opinion filed.
DONNELLY, J., dissents.
WELLIVER, Judge, concurring in part.
I concur, with the exception that I do not believe the issue of the admissibility of appellant‘s statements under
SEILER, Judge, dissenting.
Although the principal opinion opens by announcing its scope is limited to consideration of the single issue of ineffectiveness of appellate counsel and adopts as the standard for evaluation of appellate counsel‘s actions the same standard as used for gauging trial counsel‘s conduct, the principal opinion then proceeds to deal with both claims made—i. e., the claim that the juvenile court improperly relinquished jurisdiction and the claim that Rone‘s in-custody confession was taken without his parents having been notified as soon as possible that he was in custody as required by
The same is true of the disposition of the underlying claim that the confession was inadmissible because of violation of
It is the disposition of this second issue—the effect of violation of
In the original Rone decision, reported in In re A.D.R., 515 S.W.2d 438 (Mo. banc 1974), the court divided on whether or not the authorities, in obtaining defendant‘s confession, had abided by the provisions of the juvenile code. Among the violations of the juvenile code, as pointed out in the dissent, 515 S.W.2d at 444, was the failure of either police or juvenile authorities to get in touch with defendant‘s parents or relatives or to have them present at the questioning, despite the provisions of
It is now, for the first time, addressed in the principal opinion herein and held to be without merit on the ground that even if the statute were violated Rone was not prejudiced thereby, because the confession was voluntary and in the totality of the circumstances the trial court did not err in admitting it into evidence. This, however, does not necessarily follow.
Section 211.131.2 is forthright and unequivocal. It provides: “When a child is taken into custody, the parent, legal custodian or guardian of the child shall be notified as soon as possible.” The requirement of prompt notice does not depend on whether it is convenient for the police to comply, or whether the juvenile would prefer that his parents not know he is in jail. The statute requires that the parents be noti-fied; whether they do anything about it is up to them, but the law envisions that they are to be informed, promptly, that their child is in custody. As we will see, this is an important protection which the juvenile code provides for the child.
Although the principal opinion asserts it is unclear whether section 211.131.2 was in fact violated, there is a complete absence of any direct or positive evidence in the record of compliance (a fact which the state could have proven without difficulty had the authorities in fact notified the parents promptly). On the other hand, there is persuasive evidence that the parents were not given prompt notice. It is noteworthy that the state makes no contention that the parents were notified promptly. It would have been easy for prompt notification to have been given defendant‘s parents that he was in custody. Upon arrest, defendant was taken to the Kansas City, 27th Street police station. His parents, who had been married 31 years, lived at 3223 Agnes, Kansas City, in a large house with four of their eight children still at home. Mr. Rone was a long time employee of the post office. As the principal opinion indicates, and as the record sets forth in considerable detail, both the police and the juvenile officers had had several prior contacts with Rone and his parents. It is safe to say the authorities knew how to get in touch with Rone‘s parents.
The principal opinion intimates that since Rone had said he would like to have his coat back (which remark the principal opinion characterizes as an exhibition of special interest in the coat on Rone‘s part) and since one of the police officers testified Rone‘s parents came to police headquarters to pick up Rone‘s black coat,1 it follows the parents were notified, as picking up the coat was “a thing they could not have done without notice of his detention.”
The difficulty with this argument is that the statute requires notice to the parents
The authorities would be in the best position to prove that they gave prompt notice to the parents, if so, by producing the person who claimed to have given notice. This they did not do. The best the state could do was the testimony of the police officer, who testified that he was present when the coat was turned over to defendant‘s parents at a date and time not stated. We do not know how long this was after the arrest or the confession or whether it was even on the same day.
While the statute does not require the presence of the parents during police interrogation of the juvenile, by the requirement that the parents be notified as soon as possible that their child is in custody, the statute does give the parents an opportunity to be present in person. Here, however, it is undisputed that the juvenile‘s parents were not with him during the interrogation, an unlikely state of affairs with parents as deeply involved in juvenile court efforts with their son as the record shows these parents were, had they been given prompt notice that their son was in custody. Officer Merle Hoffman started interrogating defendant at 1:35 a. m., some four hours after defendant was taken into custody. The robbery occurred around 9:00 p. m. and defendant was apprehended by the police within a few minutes thereafter. Officer Hoffman is the one who obtained defendant‘s confession. As to who was present, Hoffman testified it was deputy juvenile officer Charles Gardner:
“Q. On that day did you have occasion to speak with Arthur Daniel Rone, Jr.?
“A. Yes, I did.
“Q. Where did you first speak to him?
“A. In the Crimes Against Persons Unit at police headquarters.
“Q. And who else was present at the time you talked to him?
“A. Deputy Juvenile Officer Charles Gardner.
“Q. What was your purpose in talking to him?
“A. In regards to the robbery . . . .”
The principal opinion, in dismissing violation of the juvenile code by the police, if it did occur, as of no consequence in the totality of the circumstances with respect to admission of the confession, overlooks our long established rule that the police must observe the juvenile code requirements before they can use a confession obtained from a juvenile.
In State v. Wade, 531 S.W.2d 726 (Mo. banc 1976), this court held that it was reversible error for a trial court to admit a police officer‘s testimony concerning a juvenile‘s oral confession when the juvenile offender has not been taken directly to the juvenile authorities as required by
“The Juvenile Code intends that no statement shall be made to police by a person under seventeen years of age before the child is taken to juvenile authorities. To hold the statement admissible here would permit the State to obtain and use what the Code refuses.”
531 S.W.2d at 729. Also in Wade, we stated that “the Juvenile Code recognizes the incapacities of persons under seventeen years of age.” Ibid. at 728 (emphasis in original).
While this case presents the same violation of the juvenile code in the failure to take the child directly to the juvenile authorities as required by
As pointed out in People v. Maes, 571 P.2d 305, 306 (Colo.1977), involving a statute similar to our section 211.131.2, and relying on Missouri authority (which, incidentally, the principal opinion would expressly overrule):
“A parent, guardian, legal custodian, or an attorney is expected to act ‘on the side’ of the juvenile, and to have his best interest uppermost in mind when called upon to be with a juvenile who is in police custody for alleged criminal activity. If the person appearing with a juvenile in the situation involved here is neutral or hostile, the juvenile is deprived of the protection afforded by the statute. See In re K. W. B., 500 S.W.2d 275 (Mo.App. 1973); State v. White, 494 S.W.2d 687 (Mo.App.1973).”
Likewise in State v. Tolliver, 561 S.W.2d 407, 409 (Mo.App.1978) where the court was considering the effect of the juvenile officers failing to take enough time with the juvenile to determine that he had not lived with his mother since he was six months old, but instead lived with his grandmother (the juvenile officers tried to call the mother to come to the police station, unsuccessfully, but of course made no effort to call the grandmother), the court pointed out the following with respect to police interrogation of juveniles: “[T]he law required special protection to a young teenager who is to be subjected to police interrogation, so as to place him so far as possible on a plane of equivalence with an adult. A key measure of such protection has been the creation of a procedure to provide the presence of an attorney, parent or similar adult friend . . . .”
Section 211.131.2 provides the necessary procedure, if it is followed. We should not permit it to be ignored.
The principal opinion as revised cites State v. Wade, supra, for the proposition that the admissibility of a juvenile‘s statement taken in the presence of the juvenile officer, is “determined from the totality of the circumstances on a case by case basis.” No such statement or inference appears in the Wade opinion and the holding and effect of the Wade case is the exact opposite.
The principal opinion would treat State v. Wade as though it adopts a per se rule that the presence of a juvenile officer at police interrogation suffices to cure any juvenile code violation, so long as the confession is “voluntary.” No doubt Rone‘s statements were “voluntary” for purposes of the Fifth Amendment. But our juvenile code serves interests and policies distinct from those against compulsory self-incrimination. As said in Wade.
“The idea that an attempt should be made to rehabilitate offenders under seventeen years of age, rather than merely punish them, is settled public policy, declared by statute and case law in Missouri. ‘The purpose of the Juvenile Law is not to convict minors of criminal acts, but to safeguard and reform children that may have erred * * *.’ State ex rel. Shartel v. Trimble, 333 Mo. 888, 63 S.W.2d 37, 38 (1933). The idea of rehabilitation was conceived, rightly or wrongly, as a procedure for dealing with juvenile offenders which would be of maximum benefit to society.”
A similar argument about “voluntariness” and “totality of the circumstances” curing previous violations by the police in obtaining a confession was made in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979). There defendant was convicted in the New York courts of felony murder and attempted robbery. He had been arrested without probable cause, taken to the police station, and there detained for interrogation, during which he made statements and drew a sketch which incriminated him.
It was conceded by defendant that the proper Miranda warnings were given and that his statements were “voluntary” for purposes of the Fifth Amendment. Nevertheless, the Supreme Court held the statements and sketch were inadmissible, because satisfying voluntariness for the Fifth Amendment did not mean that the confession should not be excluded under the Fourth Amendment by reason of the admitted lack of probable cause for the arrest. The court spoke of the “lingering confusion” between “voluntariness” for Fifth Amendment purposes and the “causal connection” between the illegal arrest and the confession established in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975). In the present case, the principal opinion mixes “voluntariness” so far as satisfying Fifth and Fourteenth Amendment constitutional rights is concerned with what it takes to satisfy the requirements of the juvenile code, where these requirements have been ignored, as I contend was done here. To borrow the thought from the language of the Supreme Court in Dunaway, to admit Rone‘s confession would allow the police to violate the juvenile code with impunity, “safe in the knowledge that they could wash their hands in the ‘procedural safeguards’ of the Fifth” [Amendment]. Id. at 219, 99 S.Ct. at 2260.
The case of In re K. W. B., 500 S.W.2d 275 (Mo.App.1973) presents a markedly similar set of facts and issues to the case at bar. There, as here, the juvenile was arrested for armed robbery, taken directly to police headquarters, and subjected to custodial interrogation in the absence of a parent or friendly adult. The court of appeals held that, under the legislature‘s framework in the juvenile code, “in the absence of an attorney, a confession of a child shall not be used against him in a juvenile court proceeding unless both he and his parent, guardian or adult friend were informed of the juvenile‘s rights to an attorney and to remain silent.” 500 S.W.2d at 283.
Likewise, in State v. White, 494 S.W.2d 687 (Mo.App.1973), a video taped statement
In re K. W. B. and White are proper applications of the juvenile code, wholly consistent with our recognition of the incapacity of juveniles under the code in Wade and Arbeiter.
The principal opinion misinterprets the case of State v. Sinderson, 455 S.W.2d 486 (Mo.1970), as holding that the “totality of circumstances” is the sole standard for determining admissibility of a juvenile‘s confession, when, in fact, the “totality of circumstances” discussion in Sinderson cited at 455 S.W.2d 493-94 goes to defendant‘s constitutional claims under the Fifth, Sixth and Fourteenth Amendments. This came after the court had determined that there had been no violations of the juvenile code, 455 S.W.2d 491-93. Sinderson does not remove the safeguards afforded by the legislature to Missouri juveniles under the juvenile code. In Sinderson, the child was taken to the authorities by his mother and uncle and was questioned with his mother and uncle present, a situation far different from the present case. The child, his mother, and his uncle were read his rights and asked if they had any questions. The child and his mother indicated that they understood his rights and did not want an attorney. The child then signed a form listing and waiving his rights to remain silent, to consult an attorney, to have an attorney appointed for him, to have a lawyer present at the questioning, and to stop answering questions at any time. His mother and uncle signed the waiver form as witnesses. After questioning, the child‘s statement was reduced to writing and the statement was corrected by the child, his mother and uncle. The child signed the corrected statement, which his mother signed as a witness. The Sinderson case only proceeds to evaluate the voluntariness of the confession under the “totality of circumstances” standard after establishing that the juvenile code provisions were followed. His mother had notice of and participated in the questioning of the child. The questioning in Sinderson was not done in the early morning hours with no relative or supporting friend present. With the juvenile code‘s statutory requirements having been followed, the court could then reach the issue of admissibility of the confession under the federal constitutional standards.
The Sinderson case did not hold that a juvenile‘s confession is to be judged only under the “totality of circumstances” and without reference to the juvenile code. Sinderson does not require nor imply that we overlook the violations of the juvenile code and judge the child‘s confession under the “totality of circumstances.” The Sinderson decision is inapplicable to this case.
In Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979), which the principal opinion cites for the “totality” approach, the question before the court was whether the juvenile‘s asking to have his probation officer present during police questioning was equivalent, with respect to involving the Miranda rule, to a request for the assistance of an attorney. The California Supreme Court ruled that it was and excluded the subsequent confession. The United States Supreme Court held it was not and reversed the California court. The case does not deal in any way with what is required by a particular juvenile code before the police can interrogate. The quotation at 442 U.S. 725, 99 S.Ct. 2572, set forth in the principal opinion herein relates to what is required to determine whether there has been a waiver by the juvenile of his Fifth Amendment rights. There is nothing in the opinion which holds or intimates that such a waiver also operates to
State v. Higgins, 592 S.W.2d 151 (Mo. banc 1979), also cited by the principal opinion, while discussing the basis for “voluntariness” of a confession, does not involve a juvenile confession or the requirements of the juvenile code in any way.
In State v. Wright, 515 S.W.2d 421 (Mo. banc 1974), also relied on by the principal opinion, the court addressed the question of whether defendant‘s confession should have been excluded on the basis that its use other than in juvenile court proceedings was prohibited under
Our opinions have, without articulating it in so many words, developed a two-step process for determining the admissibility of confessions obtained by the police from juveniles: First, did the police or the juvenile authorities respect the rights of the juvenile under the juvenile code? Second, if they did, then were the juvenile‘s constitutional rights observed? If the answer to the first question is in the negative the second is not reached.4 But the principal opinion deals with the second question without answering the first. In so doing, the opinion strips away the safeguards provided by the legislature to supplement the minimum federal constitutional protections. The opinion overlooks “the need for protection and special treatment foreseen and mandated by the General Assembly” which we noted and applied in Wade. 531 S.W.2d at 729. It requires no more protection for a juvenile than that afforded an adult. It ignores the legislative determination that juveniles are to be treated differently than adults. Whether we agree or not, the legislature has required that suspected juveniles be treated differently than adults accused of crime.
The admission of the juvenile‘s incriminating statements made while in police custody and without his parents having been promptly notified would be reversible error under the provisions of the juvenile code and the rationale of the Dunaway, Wade, Arbeiter, Tolliver, In re K. W. B., and White decisions.
For these reasons, I would reverse and remand for a new trial.
One other matter must be mentioned: there is a difference of opinion between the principal opinion and this dissent as to whether, on the basis of the record before us, there was a violation of section 211.131.2 in failing to notify Rone‘s parents as soon as possible that their son was in custody. As earlier stated, in my view there is persuasive evidence they were not. The principal opinion does not contradict this. The strongest claim it advances is that “whether section 211.131.2 was or was not followed is unclear from the record before us . . . .”
Another alternative would be to decide only the first question before us—the claim that the juvenile court improperly relinquished jurisdiction—and dismiss the second claim—the claim that the confession was taken without his parents having been notified as soon as possible that he was in custody—without prejudice to the right of defendant to file a Rule 27.26 proceeding on that issue. That would permit a factual hearing on whether the parents were notified as soon as possible and if not whether Rone was prejudiced thereby and, if so, whether the failure of his lawyer to raise the point constituted ineffective assistance of counsel. By doing this we would not be in the position of deciding the case against defendant without knowing what the facts are.
No. 61458.
Supreme Court of Missouri, En Banc.
Aug. 18, 1980.