Marvin v. State
603 P.2d 1056
Nev.
1979
Check Treatment

*1 MINOR, MARVIN, Appellant, v. THE STATE Respondent. NEVADA, OF

No. 10612 December Reno, Hamilton, Appellant. for

David General, Attorney City; Bryan, Carson Calvin R. Richard Laxalt, Deputy Attorney, Dunlap, and Bruce R. District X. County, Respondent. Attorney, Washoe District *2 OPINION Court, Manoukian, By J.: certifying appellant appeal from an order This in district court as an Two to stand trial adult. They presented determination. questions for our are: basing part the district court erred its determina Whether certify allegedly on as an adult statements tion to *3 appellant’s right fifth in violation of amendment to obtained silence; probation department the Whether investigation” precedent required “full to the such conducted no error and affirm the of the We find decision certification.1 court. lower age, years was nearly eighteen of arrested for appellant, burglary Car- possession tools —felonies—in of burglary and Sunday, early morning October hours of City in the

son thereafter, arraignment was held before a Shortly an 1977. being resulting appellant’s trans- City in magistrate in Carson County Center at Wit- Detention Juvenile to the Washoe ferred City probation officer A Carson tenberg in Reno. Hall pertinent part: provides in 1 NRS62.080 charged age years an or older is with offense which of a child If adult, by felony committed the division if of the be a would investigation, may juris- in its discretion retain district full after proper proceedings certify child for criminal the jurisdiction to or diction of such offense if committed an adult. have which would added.) (Emphasis appellant’s attempted parents, to contact they but found that Subsequently, County were out of town.2 pro- Washoe officer, Woodard, attempt bation Gordon in an unsuccessful parents, message the left a contact sister that being Wittenberg was detained at Hall. being rights,3 After advised of his the made several

inculpatory incriminating only himself, statements not but sev- persons adult burglaries eral in relation to a number of of resi- Additionally, dences businesses. he police directed the property products several items of stolen burglaries. of the — Although they Monday, arrived home appel- on October go parents Wittenberg lant’s did not Tuesday, Hall until They permitted October 4. were not to visit at that being questioned regarding time because he was the admitted burglaries by County a Washoe Sheriff’s Appellant detective. telephone during was also denied use the his A detention.4 eventually detention was Thursday, held and on Octo- 6, appellant parents. ber released to his 62.170(1) provides pertinent part: in 2 NRS “When a child is taken into cus tody immediately notify guardian, parent, the officer shall custodian child. . . .” Gault, (1967); Arizona, 3 SeeIn re 387 U.S. Miranda v. 384 U.S. adjudicated yet during 4 Appellant be had not been triable as an adult (1973), pre-waiver stages. In A Minor v. 517 P.2d 183 these stated, right custody juvenile “While officers had the to take into a we law, violating the is entitled to the same Fourth and found protection . . .” Amendment afforded to adults. Id. at Fourteenth omitted). (citations recognizing foregoing, we at 185 intimate no question admissibility subsequent regarding confessions view perceive proceedings, what we to be but constrained to condemn criminal probation disregard by police flagrant 62.170 authorities of NRS the (1), parents apparently appel allowing holding the child and see approximate days age during detention. In four lant incommunicado ubiquitous sophistication probation peace and relative standardization training, a blatant difficult to conceive of such violation of it is officer Nevertheless, statutory breach mandates relevant statutes. certification order. Minor v. 89 Nev. at not alone invalidate the do 567-68, Cf. (confinement year being old arrested under P.2d at of 16 jail, alcohol, responsible in adult without notification custo influence of officer, conduct, error). improper held but not dian or special presumed immaturity, safeguards be Because of a child’s should delinquent since, investigating police placed interview in act around a time, whether or not the court will retain it is not known always permit in a criminal court. NRS 62.080. It the case or trial cannot over only proceed- police to a interview lead non-criminal assumed that the will be ing. *4 interviewed, rights being a child should be advised of his and cau- Before court be used in a criminal as well as before the that answers tioned made, especially young Special in the should be case of court. efforts children, only presence parent guardian. a in the of or to interview the 840 dismissed, City charges appellant were but The Carson County

charged by Washoe authorities on October as appellant’s the derived from result of information state- a petition a was filed in ments. On October Department the Juvenile Court, charging appellant the of District with fif- consisting felony primarily burglary grand counts teen and 205.060, larceny. A NRS 205.220. motion was also filed requesting be to that ordered stand trial as an adult. County judge that Washoe then ordered the Juvenile The Pro- investigation Department conduct an and bation report submit a pursuant NRS the court to 62.080. to investigation, report consisting Following study the a aof life, analysis appellant’s home school record offense background relevant information was and other submitted Department. report Probation The Juvenile was based largely upon appellant during information obtained from his Wittenberg confinement Hall. on the motion for certification was held December being represented counsel, retained after origi- which the court a detailed order waived its “exclusive jurisdiction,” [juvenile] requiring appel- NRS nal that Although testimony lant stand trial as an adult. incriminating appellant, admissions was not the sole evidence it major played in the a role lower determination waive juvenile jurisdiction. its Claim. 1. The Amendment Fifth upon by contends that confessions relied waiving juvenile trial court were admit- right against ted in of his fifth amendment violation self- posture proceeding, Due to the instant incrimination. guilt fact that we not here concerned or appellant’s knowledgeability rather with innocence but amenability treatment, fifth amendment claim irrelevant.5 becomes juve- (1961). Although Harling n. 12 a F.2d United pres- voluntary capacity make confession without the a does have nile psychologically parent guardian, a and confession is or or ence assent it, Stokely involuntary simply adult assented to v. State because no or coerced Lara, 1969); (D.Md. People F.Supp. Maryland,

of 202, J.F.T., (D.C.App. 1974), 1967); (Cal. A.2d it is In re present. extraordinary responsible Absent cir- custodian be preferred policy being questioned always cumstances, when is be the a child should this concerning being Clearly, participation taken. formal statement or a accused, younger greater precau- and the offense more serious process. interrogation in the be taken which should tion necessary question discuss the of volun we determined 5 Even had inquiry. tariness, paucity record not invite of the factual does the extreme error, plain 47.040(1), objection proper the existence Absent *5 States, (1966), In Kent v. United 383 U.S. 541 the United Supreme requirements Court considered the States for a valid jurisdiction juvenile waiver of exclusive of a aas condi- juvenile proceeding. tion to the trial of a in an adult criminal language statute, While the Court’s decision involved the of a necessity requirements process that the stressed basic of due proceedings. and fairness be satisfied such Id. at 553. See In Gault, 1, Kent, however, (1967). re expressly 387 U.S. 30-31 neither impliedly right nor extended the fifth amendment against hearings.6 self-incrimination to waiver principles govern of “fundamental fairness” in fashion- ing procedures and remedies to serve the best interests States, 556, (D.C.Cir. child. Pee v. United And, 274 F.2d 1959). 559 recognize while we that a “critically waiver involves action, important” 553, Kent v. United 383 U.S. at consequence necessarily certification is not a condemna- Therefore, tion of the accused. the informal nature of the wai- hearing ver imposition which proceeding, precludes differs from a criminal evidentiary of strict standards. The court in a wai- material, hearing evidence, ver can consider relevant but fundamental fairness demands that such evidence be founded People on accurate and reliable information. Wong, v. Chi Ko 976, (Cal. 1976). Piche, 557 P.2d 989-90 See also State v. 442 632, (Wash. 1968). P.2d 635-36 unique judge of the Because role of a trial in the non-adver- sary atmosphere confidential State v. 671, Loyd, (Minn. 1973), coupled 212 N.W.2d 674 with the yet sufficiently fact that the confessions have not been asserted unreliable, involuntary to be or we find no error. The accused panoply legal still to the rights has access and constitutional defendants, including by jury. available to adult not, trial This is present, involving at at admissibility, least a case in a proceeding, state criminal of an inadmissible confession. Cf. considering precluded Septer from held that we are claim. v. court has 1390, (1975); State, Warden, 1391 Clark Nev. 530 P.2d v. 89 Nev. 91 (1973). Petrucci, See United States v. 513 486 denied, 1973), (1974); (9th cert. 416 U.S. 937 Thomas v. Cir. 93 F.2d 329 113 571 P.2d Nev. 6 Recently, Supreme the United jeopardy States Court determined that adjudication responsibility with the attaches delinquency proceeding initiation an in a and that no waiver of can occur thereafter. Jones, (1975); 62.195(3). though Breed v. 421 U.S. But even that amendment, jeopardy claim of double fell under the fifth the Court has never questionable held that the non-adjudicatory consideration of a confession in a hearing waiver invalidates the waiver under that same amendment. police Ohio, (1948) (unreasonable con- Haley 332 U.S. 596 v. process); A obtaining violated due Minor confession

duct (unreasonable police rights). juvenile’s amendment fourth violated tactics non-adjudicatory in is waiver or transfer juve- guilt or innocence of the inquiry is made into hearing to determine whether inquiry such a The sole nile. society would be better and of interests adjudication in the adult court subsequent served system. offense, exempt he is in effect commits a child Once juris- juvenile court waives its law unless the criminal and, governs During period, the code diction. Gault, Winship, (1967), re re 387 U.S. irrespective of In Pennsylvania, (1970), U.S. and McKeiver 397 U.S. substantially all of the constitu- (1971), and the fact that proceedings granted now to adults in criminal rights tional *6 juvenile proceed- juvenile proceedings, belong in accuseds 62.193(1), in to be civil nature. ings continue in Nevada 62.200(3). 62.195(3), children, speaking, arguable generally is that because are It statutes, it exempt criminal is unfair allow admissions from non-punitive by setting and them in non-criminal of made subsequently purpose proceedings to be used for of securing though Even criminal conviction. their adjunct of serve as to the adult made to somewhat court was us, given presently process, the record before we are criminal principles “fundamental fairness’’ were of not that satisfied proceeding. in this violated reliability Returning question of statements— upon appar- which the waiver was based—it is information record, notwithstanding police the evidence of from the ent statutory improprieties, state- waiver, purpose preliminary the sole and ments for were corroborated the fact that reliable. These statements burglaries physical evidence of the police were able to find Considering appellant had told them.7 these state- what from ments, nearly coupled the evidence was detention; appellant implicated eighteen the time of at burglaries and residential which in of commercial a series 7 Although from a fifth reach the voluntariness issue amendment we do not standpoint, obtained from a information confession in the we do believe that hearing in satisfaction of be found reliable fourteenth of waiver context Piche, process requirements. See State v. 442 P.2d at 632. In due amendment Piche, non-adversary hearing that the that the fact transfer the court stated confinement, punishment, directly guilt aor in determination of result does time, period of Matter of Wel- over an extended occurred cf. Dahl, (Minn. 1979)(no signifi- 278 N.W.2d fare of history misconduct); the trial court found that prior cant maturity sophistication, crimes evidenced deliberation; premeditation and with obvious were committed appellant’s adults; in crime are is not associates procedures, reliability delinquency inexperienced arrest stage apparent. procedural this Here, determining the statements are relevant to the best society, prop interests of erly and the trial court Harbert, (Wash. admitted them. In re Piche, 1975); (Wash. 1968). State v. P.2d See Morris, denied, People (Mich.App.), 226 N.W.2d 565 cert. case, permitted

423 U.S. 849 the instant use has cognizable parens patriae effect on the rela child, States, 554; tion to the Kent v. United 383 U.S. at Kline State, (1970), v. patible and is com philosophy

with the non-criminal which underlies the having suppression Act. Juvenile Court below, There been no is, course, prejudice this determination without appellant’s right suppress proceed move to the criminal 47.090, 174.125(1). ing. See NRS Question a “Full 2. The Investigation.” Appellant department next contends that the failed investigation” pursuant “full to make a to NRS inquiries beyond because it did not extend its the circumstances surrounding burglaries. the series of This contention is without merit. (1970), In Kline v. 86 Nev. 464 P.2d 461 and Lewis (1970), adopted 86 Nev. 478 P.2d 168 we criteria established (1966), Kent v. United 383 U.S. 541 determining a valid waiver of appealed thorough court. The order from is and indi- *7 judge carefully cates that the considered the character and dis- position appellant, together with past the nature of his offenses, present amenability juvenile treatment, and remaining each of the States, elements enunciated in Kent v. United 565-68, State, at 383 U.S. and Lewis v. 86 Nev. at n.2, Accord, State, 478 P.2d at 170-171 n.2. Martin v. 94 Nev. juvenile The court has considerable determining juris- in

latitude whether it should retain or waive States, diction. Kent v. United 383 U.S. at 552-53. coupled strongly urged with the additional fact that the admission was not physical coercion, product psychological be a meant that the consid- self-incriminating did eration of statements not violate constitutional safe- guards. id. at 635-36. jurisdiction provides ample waiving order The instant appellant’s certification as an for the

specificity the reasons primarily to be tried as an adult Appellant was certified adult. juvenile that he was not ame- court determined the because treatment, period particularly juvenile within the nable to remaining juvenile court’s is termi- the before plainly the careful evaluation meets trial court’s The nated.8 investigation.” requirement “full We find no statutory error. waiving district its

We the order affirm jurisdiction. JJ.,. concur.

Thompson Batjer, J., Gunderson, concurring: I concur in the result. J., dissenting: C.

Mowbray, previously “[mjeaningful Court has announced This jurisdictional requires that waiver] review [of reviewing review. It should not be remitted to court should may adequate It not ‘assume’ that there were assumptions .... merely reasons, investigation’ has nor assume ‘full Kline v. made.” been States, U.S. 541, (1970), quoting Kent v. United majority added). opinion assumes that “full (emphasis Since, my opinion, investigation” had been made. record respectfully support assumption, I must dissent. does not proceedings, respect court and to waiver With patriae acting parens rather than as as engaged attorney judge, determining prosecuting adjudicating society rather than crimi- the child and of needs of juvenile system treatment within the Non-criminal nal conduct. exception. rule; is the NRS adult criminal treatment is 62.290; 383 U.S. at 560. To further the Kent v. United comprehensive, juvenile system providing effec- ends of — juvenile, delinquent tive, for the id.— treatment non-criminal virtually disposal department its unlimited has delinquent child and to with which to examine resources see, remedy, e.g., appropriate NRS rehabilitative fashion 62.300; 62.080, (c); 62.200(l)(b) NRS NRS NRS 62.310. juris permits the 8 Irrespective which to retain years, youth age of 21 our corrections it reaches until of a child diction age youths its customarily care at 18. committed system releases

845 Thus, juvenile while the court has considerable latitude in jurisdiction, determining whether it retain or waive should its investigation”. be based on a “full decision must tigation”, A “full inves- context, ritual; rather, be in this cannot a mere anticipates thorough a examination of the child and back- his ground thorough exploration strategies all alternative 294, (Alaska D.H. of rehabilitation. v. 561 P.2d 298 Gibbs, 209, 1977); (Idaho 1972); State 500 P.2d 217-18 In re Patterson, (Kan. 1972); P.2d 1136 United States v. Howard, (D.C.Cir. 1971); also, 449 F.2d 1090-91 see Wong, People Harbert, (Cal. 1976); v. Chi Ko 557 P.2d In re (Wash. 1975); Haziel v. United (D.C.Cir. 1968). Only 404 F.2d in this manner the welfare of the and the interests of society be secured. judge prosecution While a in a criminal concerns himself act, solely alleged judge criminal court juvenile judge his attention on the actor: must focus “the must juvenile’s future, past, mind, consider the his his and his acts.” F.Supp. (D.C.Wis. Quatsoe, Miller v. 1971).

Thus, juvenile’s alleged nature of offense is relevant to present development his state is one factor to be consid- but, juvenile court; alone, standing ered it fails to estab- jurisdiction. grounds waiving Gibbs, lish sufficient for State v. Obviously, investiga- 500 P.2d at 217-18. beyond alleged extend tion must criminal acts. D.H. v. P.2d at 298. fully has Once the examined the mental and child, development emotional the court must then bal- needs, against safety, ance these factors and demands of Harbert, society. striking In re at 1217. In bal- ance, duty facilities, court is under a to utilize its explore personnel, expertise thoroughly possible all dispositions State, supra; alternative short of waiver. D.H. v. Gibbs, Patterson, supra; supra; Howard, In State v. re U.S.

supra. case, investigation” my opinion,

The “full the instant probation responsible short The falls of these standards. officer appellant’s investigation” “full testified that he limited investigation appellant’s alleged to the circumstances crimi- appellant nal brief acts and one conversation with about his past. though appellant’s The officer admitted that he went to acts, home in order to uncover “evidence” of criminal he did any in-depth appellant’s parents. conduct interview Nor sister, question appellant’s neigh- did bors, out the officer seek Though or friends. the officer knew that appellant’s employer or did not interview employed, he examined officer did not have co-workers. officer check with psychiatrist. Nor did the short, probation officer or teachers. schools former merely had various himself that committed satisfied investigation” “full extended acts. The so-called “criminal” further. Moreover, department nor the neither *9 might strategies hope offer what alternative examined court necessary appellant, or what facilities would be rehabilitate range Despite strategies. the wide of alternative those further see, e.g., NRS dispositions to the available during hearing only program mentioned the waiver was even Training Though the officer School. Nevada hearing [appel- “I during don’t know that he stated facilities,” [juvenile] inquiry further benefit can’t lant] concerning programs facilities or the available made Again, my opinion, suitability case. their investigation” contemplated type of “full is not the 62.080. sum, deciding latitude in I note that the jurisdiction presupposes proce- or not waive both whether requirement compliance regularity of a full dural investigation. made, investigation a full was not I Since would judgment of the and remand reverse upon thorough a new waiver be based cause for background the child and his and the examination of both strategies of available to the rehabilitation court. alternative Respectfully, I dissent. CORPORATION, Peti- DEVELOPMENT SPRINGS

ASH THOMAS THE HONORABLE J. tioner, Eighth Judge O’DONNELL, Judicial District County Nevada, in and for the of the State Court CRUNK; MAURICE SUE Clark; KAREN CRUNK, SUE of KAREN CAROLYN Parents Respondents. CRUNK, No. 12174 P 603 .2d December