210 Conn. 435 | Conn. | 1989
The state brought a petition to adjudicate the respondent, Steven G., a juvenile delinquent
The facts of this case are fully set forth in In re Steven G., supra. We summarize only those facts pertinent to the certified issue. On February 3, 1986, the respondent was charged with criminal liability for robbery in the second degree. On July 9, 1986, the trial commenced. The complainant testified that she was working alone in a natural food store in New Haven on January 18, 1986, when two boys came into the store. One boy went to the rear of the store and engaged the complainant in conversation. The other boy went to the front of the store and put his hand on the cash register and pushed the buttons. When the complainant went to the front of the store, she was ordered by the boy there to “open the drawer,” which she did because she felt “threatened.” While at the front of the store, the complainant paid no attention to the boy at the back of the store, and consequently was unable to testify about what he did. She also was unable to make any identification of the respondent “with certainty.” She testified that after the money was taken from the cash register by one of the boys, both boys “flew” out of the store. She also testified that she did not observe the boy who had gone to the back of the store take money from the register.
Shortly after the beginning of the cross-examination of Ted, the respondent’s counsel requested a recess, which the trial court granted. On the date that the trial resumed, July 16, 1986, the state filed a motion to amend the petition against the respondent to add four additional charges arising out of the same incident. The respondent and his mother were provided with notice of the amended petition on that date. The four additional charges in the amended petition were: (1) conspiracy to commit robbery in the second degree; General Statutes §§ 53a-48 and 53a-135; (2) larceny in the sixth degree; General Statutes § 53a-125b; (3) conspiracy to commit larceny in the sixth degree; General Statutes §§ 53a-48 and 53a-125b; and (4) criminal liability for larceny in the fifth degree; General Statutes §§ 53a-8 and 53a-125a. The respondent’s counsel objected to the added charges claiming that they violated the respondent’s right to notice of the charges against him, his right to counsel and to present a defense, and that the added charges prejudiced the respondent. The state argued that an amendment was proper under Practice Book § 1029, claiming that the additional charges were brought because it had been
On July 21, 1986, the respondent filed a motion to dismiss the four additional charges. The trial court denied the motion on July 23, 1986. Thereafter, pursuant to General Statutes § 54-94a,
The respondent argues that juveniles charged with delinquency offenses have a right to the same standard of fair and adequate notice of the charges against them in advance of trial as is constitutionally mandated for adult criminal defendants. He claims that the addition
“There is no doubt that the Due Process Clause is applicable in juvenile proceedings. ‘The problem,’ we have stressed, ‘is to ascertain the precise impact of the due process requirement upon such proceedings.’ In re Gault, [supra, 13-14]. We have held that certain basic constitutional protections enjoyed by adults accused of crimes also apply to juveniles. See [id., 31-57] (notice of charges, right to counsel, privilege against self-incrimination, right to confrontation and cross-examination); In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970) (proof beyond a reasonable doubt); Breed v. Jones, 421 U.S. 519, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975) (double jeopardy). But the Constitution does not mandate elimination of all differences in the treatment of juveniles. See, e.g., McKeiver v. Pennsylvania, 403 U.S. 528, 91 S. Ct. 1976, 29 L. Ed. 2d 647 (1971) (no right to jury trial). The State has ‘a parens patriae interest in preserving and promoting the welfare of the child,’ Santosky v. Kramer, 455 U.S. 745, 766, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982), which makes a juvenile proceeding fundamentally different from an adult criminal trial. We have tried, therefore, to strike a balance—to respect the ‘informal
In In re Gault, the United States Supreme Court ruled that although a juvenile delinquency hearing need not “ ‘conform with all the requirements of a criminal trial or even of the usual administrative hearing, [such a] hearing must measure up to the essentials of due process and fair treatment.’ ” In re Gault, supra, 30, quoting Kent v. United States, 383 U.S. 541, 562, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966). The right to adequate notice of the charges is among the essentials of due process and fair treatment that the In re Gault court held applicable to juvenile delinquency proceedings. In re Gault, supra, 33. Notice must be given to “the child and his parents or guardian ... in writing ... at the earliest practicable time, and in any event sufficiently in advance of the hearing to permit preparation” and must contain “the specific charge or factual allegations to be considered at the hearing.” Id.
Despite the state’s assertions to the contrary, there can be no question that a midtrial amendment to an information adding different charges in an adult criminal proceeding is violative of due process. See Practice Book § 624; State v. Jacobowitz, 182 Conn. 585, 590-91, 438 A.2d 792 (1981). “The state’s right to amend must be limited to substitutions that do not charge the defendant with an additional or different offense because the defendant has a constitutional right to fair notice, prior to the commencement of trial, of the charges against which he must defend himself. See U.S. Const., amend. VI; Conn. Const., art. I, § 8.” State v. Jacobowitz, supra, 590. In re Gault, however, did not
In our view the Appellate Court did not err in applying a “fundamental fairness” analysis. Schall v. Martin, supra, 263; see McKeiver v. Pennsylvania, supra, 543 (“the applicable due process standard in juvenile proceedings, as developed by Gault and Winship, is fundamental fairness”); Carrillo v. State, 480 S.W.2d 612, 615 (Tex. 1972) (applying fundamental fairness analysis to midtrial amendment in juvenile delinquency proceeding); see also In re Appeal in Maricopa County, 111 Ariz. 103, 106, 523 P.2d 1304 (1974) (amendment at close of juvenile delinquency proceeding under rule providing for amendment at any time permissible if parties afforded sufficient opportunity to meet new allegations).
Although some criminal trial standards have been implemented in juvenile delinquency proceedings, the public policy of Connecticut as expressed in the General Statutes contemplates a distinction between juvenile matters and criminal matters. See and compare General Statutes, c. 815t, Juvenile Matters, and c. 950, Penal Code: General Provisions. A further manifestation of this distinction is indicated specifically in General Statutes § 46b-145, which provides: “No child shall be prosecuted for an offense before the superior court, nor shall the adjudication of such court that a child is delinquent in any case be deemed a conviction of crime except as provided in sections 46b-126 and 46b-127.”
In synthesizing the “fundamental fairness” analysis applicable to juvenile proceedings with the language of In re Gault pertinent to the sixth amendment right to notice, we conclude that the Appellate Court did not err in upholding the trial court’s allowance of the amended petition.
Finally, the record discloses that the respondent entered a plea of nolo contendere to the charge of conspiracy to commit robbery in the third degree. This charge was obviously a compromise, resulting from a plea bargain in which the respondent chose to plead guilty to the less serious charge. There is no claim that the plea was coerced or in any way involuntary. The record does not indicate any effort by the state to rush
We affirm the judgment of the Appellate Court.
In this opinion the other justices concurred.
General Statutes § 46b-120 (c) provides in pertinent part: “[A] child may be found ‘delinquent’ (1) who has violated any . . . state law . . . ."
“[General Statutes] Sec. 53a-135. robbery in the second degree: class c felony, (a) A person is guilty of robbery in the second degree when he commits robbery and (1) he is aided by another person actually present; or (2) in the course of the commission of the crime or of immediate flight therefrom he or another participant in the crime displays or threatens the use of what he represents by his words or conduct to be a deadly weapon or a dangerous instrument.
“(b) Robbery in the second degree is a class C felony.”
“[General Statutes] Sec. 53a-8. criminal liability for acts of another. A person, acting with the mental state required for commission of an offense, who solicits, requests, commands, importunes or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable for such conduct and may be prosecuted and punished as if he were the principal offender.”
Practice Book § 1029 provides: “A petition may be amended at any time by the court on its own motion or in response to the motion of any interested party prior to the final adjudication of delinquency or neglect. When an amendment has been so ordered, a continuance shall be granted whenever the court finds that the new allegations in the petition, as amended, justify the need for additional time to permit the parties to respond adequately to the additional or changed facts and circumstances.”
The conditional plea of nolo contendere was based on General Statutes (Rev. to 1985) § 54-94a, which provides: “When a defendant, prior to the commencement of trial, enters a plea of nolo contendere conditional on the right to take an appeal from the court’s denial of the defendant’s motion to suppress evidence based on an unreasonable search or seizure or motion to dismiss, the defendant after the imposition of sentence may file an appeal within the time prescribed by law. The issue to be considered in such an appeal shall be limited to whether it was proper for the court to have denied the motion to suppress or the motion to dismiss. A plea of nolo contendere by a defendant under this section shall not constitute a waiver by the defendant of nonjurisdictional defects in the criminal prosecution.”
“[General Statutes] Sec. 53a-136. robbery in the third degree: CLASS D FELONY, (a) A person is guilty of robbery in the third degree when he commits robbery.
“(b) Robbery in the third degree is a class D felony.”
“[General Statutes] Sec. 53a-48. CONSPIRACY. RENUNCIATION, (a) A person is guilty of conspiracy when, with intent that conduct constituting a crime be performed, he agrees with one or more persons to engage in or cause the performance of such conduct, and any one of them commits an overt act in pursuance of such conspiracy.”
Practice Book § 624 provides: “After commencement of the trial for good cause shown, the judicial authority may permit the prosecuting authority to amend the information or indictment at any time before a verdict or finding if no additional or different offense is charged and no substantive rights of the defendant would be prejudiced. An amendment may charge an additional or different offense with the express consent of the defendant.”
See footnote 9, infra.
The exceptions refer to transfers to the regular criminal docket of the Superior Court from the docket for juvenile matters.
The respondent has cited a number of decisions from other jurisdictions to support his claim that a petition in a juvenile delinquency proceeding cannot be amended at midtrial to add different offenses under In re
The respondent also cites the Arizona Court of Appeal’s opinion In re Appeal in Maricopa County, 21 Ariz. App. 542, 543, 521 P.2d 641, vacated, 111 Ariz. 103, 523 P.2d 1304 (1974), which only addressed the issue whether trespass is a lesser included offense of burglary. In that case, the juvenile was charged with burglary. Based on the evidence at trial, however, the trial court found that the juvenile had committed a trespass, and entered an adjudication of delinquency. The Court of Appeals reversed the trial court’s decision, on the basis that trespass was not a lesser included offense of burglary. Id. That decision, however, was subsequently vacated by the Arizona Supreme Court. In re Appeal in Maricopa County, 111 Ariz. 103, 523 P.2d 1304 (1974). The court first determined that the Court of Appeals was correct in concluding that trespass was not a lesser included offense of burglary. Id., 106. The court, however, reversed the lower court upon the following ground: “Nevertheless the adjudication of delinquency may still be upheld. Rule 4 (b), Rules of Procedure for the Juvenile Court, 17A A.R.S. provides that ‘A petition may be amended by order of the court at any time