STATE оf Tennessee ex rel., Petitioner, v. Robert STRICKLAND and Dewayne Strickland, Respondents; STATE of Tennessee ex rel., Petitioner, v. Terrance LOVELACE and Otto Smith, Respondents; Terrance LOVELACE, Petitioner, v. STATE of Tennessee ex rel., Respondent; Theodore Ernest COTTON, Petitioner, v. STATE of Tennessee ex rel., Respondent.
Supreme Court of Tennessee.
Dec. 8, 1975.
On Petition to Rehear Feb. 2, 1976.
532 S.W.2d 912
(a) delivered or entrusted them or any document of title covering them to the bailor or his nominee with actual or apparent authority to ship, store or sell or with power to obtain delivery under this chapter (
(b) acquiesced in the procurement by the bailor or his nominee of any document of title.” (Emphasis supplied.)
There is nothing in the stipulation of the parties in this case to indicate that K Furniture Company, who holds a perfected security interest in the stored furniture, delivered or entrusted the furniture to Mrs. Price with actual or apparent authority to store the furniture, nor is there any evidence in the record which would indicate that K Furniture Company acquiesced in the procurement by Mrs. Price of any document of title. Absent this evidence, under the statutes set out above, the security interest of K Furniture Company takes priority over the warehouseman‘s lien of Sanders Transfer & Storage Co., Inc., for storage charges. See Nikolas v. Patrick, 51 Mich. App. 561, 215 N.W.2d 715 (1974).
The judgment of the trial court dismissing this action is reversed. The case is remanded to the Circuit Court of Davidson County generally and specifically for entry of a judgment in favor of K Furniture Company for possession of the furniture. Costs of the cause are adjudged against Sanders Transfer & Storage Co., Inc.
FONES, C. J., and HENRY, BROCK and HARBISON, JJ., concur.
OPINION ON PETITION FOR REHEARING
COOPER, Justice.
Appellee, Sanders Transfer and Storage Company, has filed a petition for rehearing, insisting there was no case or controversy pending in this court at the time the opinion of the court was filed. This insistence is not borne out by the record filed in this court. The petition for rehearing, therefore, is overruled at the cost of the appellee.
R. A. Ashley, Jr., Atty. Gen., Wm. C. Koch, Jr., Asst. Atty. Gen., Nashville, for State.
Jerry H. Summers, Chattanooga, for Lovelace.
Fielding H. Atchley, Jr., Atchley, Atchley & Cox, Chattanooga, for Cotton.
Jesse O. Farr, Farr & Schulman, Chattanooga, for Strickland.
FONES, Chief Justice.
The issues in the four (4) captioned cases are identical and involve: (1) the rights of a juvenile taken into police custody for questioning; (2) compliance with the requirements of
The defendants, Robert and Dewayne Strickland, Terrance Lovelace, and Otto Smith were all allegedly involved in the same incident, and the facts critical to this decision are basically the same for these defendants. The defendant Theodore Cotton, was allegedly involved in a separate and distinct crime, and his factual situation is somewhat different. We are deciding all of the cases in this single opinion.
The Strickland brothers, Terrance Lovelace, Otto Smith, and Jessie Sales (not beforе this Court) were charged with the armed robbery of Mr. Charles McAtee and the
On February 12, 1973, detectives, acting on a tip from an informant, questioned the defendants at police headquarters. The youths denied involvement in the incident and each gave an account of his whereabouts on the day in question.
After further invеstigation, the police determined that the youths’ earlier statements were not consistent, and on February 19, 1973, they were again taken to police headquarters, accompanied by their parents. Although the record is not clear, it appears that this second session of questioning lasted around fourteen (14) hours. The questioning was concluded after each boy waived his constitutional rights and gave a statement implicating himself in the incident. Only then were the youths placed under the jurisdiction of the Juvenile Court.
A hearing pursuant to
An appeal of this transfer to criminal court was taken pursuant to
The State, in its Petition for Certiorari, assigns as error the action оf the Court of Appeals in finding that the confessions were obtained in violation of the statute. It maintains that the temporary detention of a juvenile at police headquarters for the purpose of questioning prior to taking him before the juvenile court is not a violation of
The juvenile defendants bring several assignments of error, four (4) of which are discussed in this opinion: (1) three (3) days written notice of the time, place and purpose of the transfer hearing was not given to the juveniles and their parents as required by
I.
First we consider the contention made by the State that the Court of Appeals erred in finding that the defendants’ confessions were obtained in violation of
It is asserted by the State that
37-215. Custody-Release to proper party-Warrant for custody.-(a) A person taking a child into custody, shall directly with all reasonable speed:
(1) release the child to his parents, guardian or other custodian upon their promise to bring the child before the court when requested by the court, unless his detention or shelter care is warranted or required under
§ 37-214 ; or(2) bring the child before the court or deliver him to a detention or shelter care facility designated by the court or to a medical facility if the child is believed to suffer from a serious physical condition or illness which requires prompt treatment. He shall promptly give notice thereof, together with a reason for taking the child into custody, to a parent, guardian, or other custodian and to the court. Any temporary detention or questioning of the child necessary to comply with this subsection shall conform to the procedures and conditions prescribed in this chapter and rules of court.
* * * * * *
37-216. Place of detention.-- (a) A child alleged to be delinquent or unruly may be detained only in:
(1) a licensed foster home or a home approved by the court;
(2) a facility operated by a licensed child welfare agency;
(3) a detention home or center for delinquent children which is under the direction or supervision of the court or other public authority or of a private agency approved by the court; or
(4) any other suitable place or facility designated or operated by the court. The child may be detained in a jail or other facility for the detention of adults only if other facilities in paragraph (3) above are not available, the detention is in a room separate and removed from those for adults, it appears to the satisfaction of the court that public safety and protection reasonably require detention, and it so orders.
* * * * * *
In support of its proposition that the police may temporarily detain and question a juvenile in disregard of the above quoted statutes, the State cites as authority several cases in which similar statutes have been construed in other jurisdictions. See, e. g. State v. Smith, 32 N.J. 501, 161 A.2d 520 (1960); People v. Zepeda, 47 Ill.2d 23, 265 N.E.2d 647 (1970). The language in these cases indicates obvious concern for the hampering of police effectivеness in the investigation and questioning of juveniles, as well as concern for the protection of juveniles. The results of the decisions show that in balancing the conflicting interests involved, the courts found that the interests of the police in efficient investigation of criminal activity far outweigh any protection afforded the juvenile.
While we agree that the effectiveness and efficiency of police investigation of juveniles may be greatly hampered by the statute, and that the statute places additional burdens on the police beyond the mandates of the Constitution, we will not substitute our judgment for that of the Legislature.
The defendants maintain that the police did not comply with
The question of police compliance with
Nor does it appear the
The statute requires juveniles to be taken before the court “directly with all reasonable speed.” The police did not comply with the requirement, and the confessions obtained in violation of that section may not be used against the juveniles.
The Court of Appeals correctly held that the confessions were obtained in violation of
The testimony in the Juvenile Court of then codefendant Jessie Sales was competent testimony which implicated the Strickland brothers, Terrance Lovelace, and Otto Smith.
When Jessie Sales was called to the witness stand and duly sworn, the Juvenile Court Judge made the following statement:
“THE COURT: Let the record show that the Court is not demanding that this young man testify. The young man is testifying in his own behalf and it is a decision made by the young man, Mr. Sales, and his attorney. You may proceed.” BE at 504.
Shortly after his direct testimony began, a motion to sever was made by counsel for Otto Smith, which was overruled. Thereafter, Sales’ direct testimony continued, conducted by his lawyer. Next he was cross-examined by the district attorney, Mr. Lanzo, then by counsel for the Stricklands, Mr. Ortwein. After several pages of that cross-examination the following transpired:
“MR. LANZO: (Interposing) Your Honor, I object to the cross examination by all defense attorneys. They have no relevancy in this case if they‘re if the statement of this man is not to be used against their client, there is no proof and-
MR. ORTWEIN: (Interposing) If no evidence that this man has given is to be used against my clients in the determination of this case- THE COURT: That‘s the ruling.
MR. ORTWEIN: I‘ll waive cross examination. I misunderstood, may it please the Court.
THE COURT: No, I said this waiver would not affect you all because I have not ruled on your motion to dismiss.
MR. ORTWEIN: Then my understanding is that no matter what this man has said about any of my clients, it will not be taken on the motion to dismiss?
THE COURT: This is correct.
MR. ORTWEIN: I‘ll waive any further. I‘m sorry.
MR. BEAN: Could I have just a minute?
THE COURT: Yes.
MR. GUEST: The same here.
FURTHER CROSS EXAMINATION
EXAMINATION BY MR. BEAN:
Q Mr. Sales, you say you didn‘t know anybody had a gun over there?
MR. LANZO: Your Honor, I object to Mr. Bean questioning him. He has no interest in this man. It‘s discovery at this point.
Q It‘s a what?
MR. LANZO: It‘s discovery.
Q I think I have a right to cross examine a witness in a case such as this.
THE COURT: You may do so.
MR. LANZO: The right of cross examination only goes to people who аccuse his clients and, if the Court has said that whatever he says is not to go against his client he has no interest.
Q If it please the Court, he‘s already made statements to accuse everybody.
MR. LANZO: Well, the Court has indicated that what he says is not to be used against their men. For that reason they have-it‘s a moot question, whether they cross examine him.
Q Mr. Lanzo asked him that question about people specifically.
MR. WRIGHT: Your Honor, as far as the interest of Jessie Sales is concerned, we‘re willing for anybody to cross examine him about anything.
THE COURT: Mr. Bean, you may continue.
MR. ORTWEIN: Excuse me. As I understand it though, Your Honor, what he said about my clients is-
THE COURT: This is correct. As peculiar as it may be but-
MR. ORTWEIN: All right, sir, that‘s fine.” BE at 523, 524, 525.
Thereafter attorneys for the other three (3) defendants cross examined Sales rather fully covering the scope of his direct examination implicating all five (5) defendants.
We have quoted fully all objections, discussions, and rulings by the Juvenile Court Judge with respect to the admissibility of Sales’ testimony. The record contains no explicit objection or ruling thereon, only an implication arising from the foregoing quote that the Juvenile Court Judge had, de hors the record, advised the parties and their lawyers that Sales’ testimony was not to be considered in the transfer hearing of the other four defendants. Sales’ testimony was not inadmissible as violative of the Bruton rule, or any other rule of evidence. The Juvenile Court Judge evidently disregarded Sales’ testimony erroneously and relied erroneously upon the confessions of the defendants. We hold the testimony of Sales was admissible, and sufficient to support a finding that there existed reasonable grounds to believe that the five (5) defendants committed the delinquent acts alleged in the petitions involved in the transfer hearing. We further hold that the defendants cannot assert any valid claim of preju-
The testimony of Jessie Sales was evidence sufficient to provide the Juvenile Judge with reasonable grounds to believe the defendants committed the crimes charged, and, being a part of the record by stipulation on the Strickland brothers’ appeal to the Circuit Court, provided the Circuit Judge with reasоnable grounds to believe that Robert and Dewayne Strickland committed the crimes charged. Additionally, Jessie Sales also testified at the de novo appeal in Circuit Court again implicating Terrance Lovelace and Otto Smith.
II.
The defendants maintain that they did not receive three (3) days notice in writing of the time, place and purpose of the transfer hearing as required by
III.
Defendants next argue that there is insufficient evidence in the record to support a finding that the juveniles are not amenable to treatment or rehabilitation in available facilities as required by
IV.
Defendants, relying on Arwood v. State, 62 Tenn. App. 453, 463 S.W.2d 943 (1970), maintain they were denied their right to a jury trial. While there is no question about the soundness of the Arwood decision, the defendants’ reliance on it is misplaced. Arwood dealt with the situation whеre three (3) juveniles were denied a jury trial on their de novo appeal to Circuit Court. Relying on In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) and Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the Court of Appeals held that a juvenile charged with delinquency predicated upon a felony is entitled to have a jury determine his guilt or innocence at trial. That is not the situation in this case. The juveniles here have not been tried upon any charge; their guilt or innocence has not been adjudicated. They have no constitutional right to a jury trial at what is essentially a probable cause hearing. Nor is there a statutory right to a jury trial as
V.
Lastly defendants argue that
The determination by the Juvenile Judge and the Circuit Judge that Robert and Dewayne Strickland, Terrance Lovelace, and Otto Smith should be transferred to the Criminal Court to be tried as adults was correct.
VI.
We turn now to consider Theodore Cotton‘s Petition for Certiorari.
Theodore Cotton is charged with the murder of Michael Evans on November 17, 1973, in Hamilton County, Tennessee. At the time of the incident, the petitioner was seventeen (17) years of age.
The police officer investigating the murder immediately after it took place was notified that the petitioner was involved and where he could be located. The officer then went to the petitioner‘s home where the petitioner‘s mother, Mrs. Cotton, allowed him to question her son. Petitioner‘s Miranda rights were read to him, and he acknowledged that he understood his rights and proceeded to make a confession. He told the оfficer where the pistol used in the slaying was located, and Mrs. Cotton turned it over to the officer. Petitioner was then taken to police headquarters where he gave a written confession and was later turned over to the juvenile authorities.
The Juvenile Court of Hamilton County, after receiving evidence at the transfer hearing, determined that the petitioner should be transferred to the Criminal Court
In his petition for Writ of Certiorari, petitioner brings two (2) assignments of error: (1) the Court of Appeals erred in considering statements against interest made by the defendant; (2) the Court of Appeals erred in failing to remand the cause to the Juvenile Court of Hamilton County because notice as required by
In his first assignment of error, petitioner maintains that because he was not taken “directly with all reasonable speed” to the juvenile court after being taken into custody, the written statement given by him at police headquarters was inadmissible undеr
Secondly, petitioner argues that notice of the purpose of the hearing as required by
The decision of the Court of Appeals in the case of Theodore Ernest Cotton v. State is affirmed. The decision of the Court of Appeals in State v. Robert and Dewayne Strickland and State v. Terrance Lovelace and Otto Smith is affirmed in part and reversed in part. These cases are remanded to the Juvenile Court of Hamilton County for the entry of orders transferring each case to the Criminal Court of Hamilton County where the defendants will be tried as adults.
COOPER, HENRY and HARBISON, JJ., and INMAN, Special Justice, concur.
OPINION ON PETITION TO REHEAR
FONES, Chief Justice.
In their petition to rehear, petitioners Robert and Dewayne Strickland assert that this Court overlooked the assignment of error which alleged a violation of Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). The Davis case involved a situation where the police, without arrest warrants, took at least twenty-four (24) youths to police headquarters where they were questioned, fingerprinted, and released without being charged. The police also interrogated forty (40) to fifty (50) other youths either at the police station, at school, or elsewhere. The Court found that defendant‘s arrest was illegal and that the fingerprints obtained while defendant was illegally detained were not admissible.
A factor in the Davis decision was the wholesale roundup and questioning of young men without probable cause to arrest them. In the instant case testimony indicated that only ten (10) to fifteen (15) young people were questioned at police headquarters; among those questioned were the five (5) defendants subsequently charged with the offenses. This did not appear to us to fit within the Davis situation. Petitioners maintainеd that they were not allowed to fully develop the facts surrounding the alleged wholesale roundup,
Assuming, without deciding, that the arrests and confessions оf all the petitioners were obtained in violation of their constitutional rights, and that the confession of Jessie Sales was a “fruit of the poisonous tree,” Nardone v. United States, 308 U.S. 338, 60 S.Ct. 266, 84 L.Ed. 307 (1939), we think the testimony of Jessie Sales was constitutionally admissible.
Sales’ testimony was an independent act of his own free will sufficient to “purge the primary taint” of the unlawful arrest and subsequent confession. A period of several weeks intervened between the date the confession was obtained and the testimony of Sales in open court, during which time he was represented by counsel. We feel this situation is analogous to Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). There the defendant was unlawfully arrested and released the next day, after his arraignment. Several days later, during a lawful questioning session, the defendant gave a voluntary confession. The Court held ” . . . that the connection between the arrest and the statement had ‘become so attenuated as to dissipate the taint.‘” 371 U.S. at 490, 83 S.Ct. at 419, quoting from Nardone v. United States, supra, 308 U.S. at 341, 60 S.Ct. 266. In view of Wong Sun v. United States, supra, we find that any illegality in the police investigation was cured by the open court testimony of Jessie Sales, and petitioners cannot complain that his testimony was an unlawful fruit of the illegally obtained confessions. Also in resрonse to petitioners’ Davis argument, it should be noted that an unlawful arrest does not vitiate the entire prosecution against the accused. Albrecht v. United States, 273 U.S. 1, 47 S.Ct. 250, 71 L.Ed. 505 (1927).
Separate and apart from the “fruit of the poisonous tree” issue, petitioners maintain the Sales’ confession and testimony were illegally obtained, and that the testimony should not be used against them. Petitioners have no standing to complain that Sales’ confession and subsequent testimony were unlawfully obtained. Illegally obtained evidence may be used against one whose rights were not violated in the seizure of that evidence. Wong Sun v. United States, supra, 371 U.S. at 492, 83 S.Ct. 407; Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968); Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969); United States v. Calandra, 414 U.S. 338, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Thus, petitioners may not seek to assert a right which is personal to Jessie Sales.
The remainder of the points raised in the petition to rehear were fully discussed in the Opinion.
The petition to rehear is denied.
COOPER, HENRY and HARBISON, JJ., and INMAN, Special Justice, concur.