Gaines v. State

KRAUSER, C.J. Seventeen-year-old Jamal Michael Gaines, appellant, and two other males robbed, at gunpoint, a McDonald’s restaurant and several of its customers. During the commission of those crimes, an employee of McDonald’s was pistol whipped and a customer shot at by the robbers. Fleeing in a stolen minivan, the three men were arrested when their vehicle collided with two other vehicles and then crashed into a tree. ⁵ The State’s Attorney for Anne Arundel County filed a twenty-three count criminal information charging appellant, as an adult, with numerous violent offenses, including armed robbery, first-degree assault, use of a handgun in the commission of a felony, and attempted murder. Appellant, in response, requested what is known as a “reverse waiver.” That is, he asked that his case be transferred to juvenile court.

That request was denied. Thereafter, the circuit court, at the conclusion of a bench trial, convicted appellant of thirteen offenses, including armed robbery, first- and second-degree assault, theft, and use of a handgun in a felony or crime of violence and sentenced him to a total term of forty years’ imprisonment, granting him credit for time served and suspending all but thirteen years of that sentence. 1 Appellant claims that the circuit court both erred and abused its discretion in denying his motion for reverse waiver. We disagree and shall affirm. ⁶ The Robbery The court below requested a waiver report from the Maryland Department of Juvenile Services (“DJS”), to assist it in deciding appellant’s motion for reverse waiver. That report and the evidence adduced at the reverse waiver hearing alleged that, on October 10, 2008, at about 8:30 a.m., appellant ánd two others 2 robbed a McDonald’s restaurant and several of its customers in Glen Burnie, Maryland.

All three assailants wore masks and wielded handguns, although at least one of the weapons may have been an air pistol. Upon entering the McDonald’s, the robbers ordered the customers to the floor. Jumping over the counter, appellant ánd one of the two other males demanded that the store manager, Rebecca Maxson, take them to the safe. Then, seizing Ms. Maxson’s cell phone, appellant struck her in the face with his weapon, knocking her into a wall and onto the floor.

One of the robbers took a purse from a customer, Yewande Akinrodoye, and a second robber fired a shot at another customer, Teodora Contreras, as she tried to flee the restaurant. The bullet did not wound Contreras, although it left a bullet-hole in her clothing. The robbers then fled in a stolen minivan and were apprehended when it struck two other vehicles and ultimately crashed into a tree. Police recovered, from the getaway vehicle, a loaded .22 caliber revolver, with two spent rounds, and ah unloaded Smith & Wesson pistol, with its serial number scratched off.

They also found an air pistol on the ground, behind the left front tire. Appellant was then only nine months short of his eighteenth birthday. The Reverse Waiver Hearing Prior to trial, appellant filed a motion for “reverse waiver” pursuant to Maryland Code (2001, 2008 Repl.Vol.), § 4-202 of ⁷ the Criminal Procedure Article (“CP”), and Maryland Rule 4-252(c). At the hearing on that motion, appellant called two witnesses: Ms. Kenya Johnson, a Case Management Specialist with the DJS, who had prepared the waiver report, recommending against reverse waiver, and his mother, Nicole Allen.

The waiver report listed, under the heading “Legal Incidents,” an alleged car jacking and armed robbery involving appellant that took place on April 26, 2007. A subheading entitled “Adjudicated Offense” was blank. During her investigation, Ms. Johnson learned that appellant had been acquitted of those charges. Appellant’s counsel questioned Ms. Johnson about an “adjustment” that had been made to the report, reflecting this acquittal.

The revised DJS report, which is not in the record, 3 apparently indicated that the charges arising from the April 26, 2007 incident had been dismissed. In any event, under questioning by appellant’s counsel, Ms. Johnson conceded that appellant had been acquitted of the earlier charges. The “Legal Incidents” section of the report further showed that appellant had been previously charged, as a juvenile, with trespass, malicious burning, CDS possession, CDS distribution, second-degree assault, and “Deadly Weapon Misdemean- or.” The trespass charge was resolved at intake; the other charges were dismissed. He was, however, adjudicated delinquent for a second-degree assault that occurred on December 11, 2007 and was placed on probation for six months.

The conditions of that probation required that he have no contact with the victim and that he re-enroll in school, as by that time, he had been expelled from school for truancy. Under the heading “Youth’s Amenability to Treatment! ],” the report stated that appellant’s “probation was successfully terminated in 08/2008.” In preparing the waiver report, Ms. Johnson met with appellant, who then was incarcerated and awaiting trial. She ⁸ “asked him what occurred on [October 10, 2008.]” When, at that meeting, the question arose whether he had wielded a BB gun during the robbery on that date, Ms. Johnson advised appellant to consult his attorney. On the stand, she initially stated that her report relied only on the police report for information, regarding the robbery, but later conceded that she also considered the conversation she had had with appellant. 4 The DJS report, as noted, recommended against reverse waiver.

Appellant’s mother, Nicole Allen, took the stand next. During her examination, she opined that appellant was extremely immature for his age and indicated that he was failing in school. Appellant’s school records disclosed that he had been expelled from school, that the highest grade he had completed was the 8th grade, that in standardized testing he performed at or below the 20th percentile, and that he had never achieved a grade higher than C. At the conclusion of the hearing, the circuit court denied appellant’s reverse waiver motion. Waiver and Reverse Waiver Waiver is the transfer of jurisdiction from juvenile court to circuit court. 5 The purposes of juvenile court contrast sharply with those of the circuit court.

The focus of adjudication in juvenile court is “to provide for a program of treatment, training, and rehabilitation consistent with the child’s best interests and the protection of the public interest.” CJ § 3-8A-02(a)(4). Although one of the purposes of sentencing ⁹ in the criminal justice system is rehabilitation, it also has, as purposes, punishment and deterrence, neither of which is a stated purpose of the juvenile act. See, e.g., State v. Dopkowski, 325 Md. 671, 679 , 602 A.2d 1185 (1992) (listing objectives of sentencing in criminal proceeding as “punishment, deterrence and rehabilitation”). Generally, when a minor is accused of conduct which, if committed by an adult, constitutes a crime, original jurisdiction over the child lies in juvenile court.

Md.Code (1974, 2006 Repl.Vol.), § 3-8A-03(a)(1) of the Courts & Judicial Proceedings Article (“CJ”). Under limited circumstances, a juvenile court may, either sua sponte or on the State’s motion, waive its jurisdiction over a delinquency petition. CJ § 3-8A-06(a); Md. Rule 11-113 a. If a juvenile court waives jurisdiction, “the court shall order the child held for trial under the regular procedures of the court which would have jurisdiction over the offense if committed by an adult,” and the delinquency petition would then “be considered a charging document.” CJ § 3-8A-06(f).

Before deciding whether to waive jurisdiction, a juvenile court must hold a hearing, id. § 3-8A-06(b), during which it is to weigh five statutory criteria “individually and in relation to each other on the record”: (1) Age of the child; (2) Mental and physical condition of the child; (3) The child’s amenability to treatment in any institution, facility, or program available to delinquents; (4) The nature of the offense and the child’s alleged participation in it; and (5) The public safety. Id. § 3-8A-06(e). The juvenile court may not waive jurisdiction “unless it determines, from a preponderance of the evidence presented at the hearing, that the child is an unfit subject for juvenile rehabilitative measures.” Id. § 3-8A-06(d)(1). The burdens ¹⁰ of production and persuasion fall on the State.

Whaley v. State, 186 Md.App. 429 , 443 n. 10, 974 A.2d 951 (2009). If, however, the child is at least fourteen years old and is charged with an offense “which, if committed by an adult, would be a crime punishable by death or life imprisonment,” the juvenile court lacks original jurisdiction; instead, such an offense, and “all other charges against the child arising out of the same incident,” must be filed in the circuit court. C J § 3-8A-03(d)(1). If the child is at least sixteen years old, and the crimes alleged fall within a somewhat broader category of serious offenses, including attempted second-degree murder, robbery, first-degree assault, and use of a handgun in the commission of a felony or crime of violence, the same jurisdictional rule applies.

CJ § 3-8A-03(d)(4). In all such cases in which original jurisdiction lies in the circuit court, the juvenile may request the circuit court to waive its jurisdiction (“reverse waiver”) and send the matter to juvenile court. In such a proceeding, the juvenile bears the burden of persuasion. CP § 4-202; Whaley, 186 Md.App. at 444 , 974 A.2d 951 .

Because appellant was accused of crimes that fall within CJ §§ 3-8A-03(d)(1) and (4), and, at the time of the offenses, was older than sixteen, he was charged in the circuit court, precipitating his request for a reverse waiver under CP § 4-202. Like motions for waiver, motions for reverse waiver require a hearing before any decision to grant or deny the motion is made. CP § 4-202(f); 6 Md. Rule 4-252(g)(2)(B) (“A motion to transfer jurisdiction of an action to the juvenile court shall be determined within 10 days after the hearing on the motion.”). And, as in waiver proceedings, a court, considering a ¹¹ reverse waiver motion, must weigh five factors, which are nearly identical to the five factors to be weighed in the context of a waiver proceeding.

They are: (1) the age of the child; (2) the mental and physical condition of the child; (3) the amenability of the child to treatment in an institution, facility, or program available to delinquent children; (4) the nature of the alleged crime; and (5) the public safety. CP § 4-202(d). The five factors to be weighed in both proceedings differ only in one respect: while the waiver statute requires a juvenile court to weigh not only “the nature of the offense,” but also “the child’s alleged participation in it,” CJ § 3-8A-06(e)(4), the reverse waiver statute requires a circuit court merely to weigh “the nature of the alleged crime,” CP § 4-202(d)(4), omitting “the child’s alleged participation in it” as a part of that factor. In addition to this one factoral distinction, waivers and reverse waivers differ in one more way: while the waiver statute carries a presumption “that the child committed the delinquent act alleged,” CJ § 3-8A-06(d)(2), the reverse waiver statute is silent as to that point.

In Whaley, 186 Md.App. at 444-49 , 974 A.2d 951 , we examined the legislative history surrounding this omission in the reverse waiver statute and determined that, as a result of this legislative omission, in a reverse waiver hearing, it was legal error for a court to presume the child’s guilt of the alleged offenses. Id. at 449 , 974 A.2d 951 . The Appeal Appellant contends that the circuit court impermissibly considered non-statutory criteria in denying his motion for reverse waiver. The court, he maintains, “improperly considered [his] alleged participation in the crimes charged and [his] inculpatory custodial statement” to the DJS Case Management Specialist, Kenya Johnson. ¹² Relying on Whaley, swpra, he argues that the circuit court erroneously conflated the legal standards for waiver and reverse waiver and impermissibly presumed his guilt of the offenses charged in denying his reverse waiver request.

He maintains, furthermore, that his statement to Ms. Johnson should have been preceded by Miranda warnings, because Ms. Johnson was, in effect, an agent of the State when she spoke with him, and he was, at that time, incarcerated. That the court impermissibly relied on that statement in denying his reverse waiver motion is a conclusion he reaches by extrapolating from the fact that it was incorporated into Ms. Johnson’s report, a report that recommended denial of his motion. Appellant also contends that the circuit court abused its discretion in weighing the statutory factors governing the motion for reverse waiver. Specifically, he claims that the court impermissibly gave undue weight to the “nature of the alleged crime” factor, citing In re: Johnson, 17 Md.App. 705 , 304 A.2d 859 (1973), a case in which this Court reversed a juvenile court’s grant of the State’s waiver motion on this ground; that the circuit court relied on “an incomplete and confused recommendation” in the DJS report, which tainted the court’s weighing of appellant’s mental condition; and that it impermissibly considered appellant’s domicile.

As to this latter contention, appellant notes that the circuit court, in announcing its ruling on his reverse waiver motion, expressed “disappoint[ment]” because appellant’s file included “a boat load of dismissals,” and speculated that a possible reason was the “huge volume of cases” from Baltimore City, where appellant lives and where the dismissals occurred. The State counters that “[n]owhere in its ruling ... did the circuit court indicate that it was assuming [appellant] to be guilty of the alleged charges, [but] [r]ather, under [CP §] 4-202(d)(4), the court looked to the nature of the alleged offenses, taking into account the level of [appellant’s] alleged participation in the charges.” As for appellant’s claim that the circuit court impermissibly relied on his statement to Ms. Johnson, the State responds that “there is no indication that ¹³ [the] circuit court relied upon any statements by [appellant], ... or that the opportunity that Ms. Johnson gave [him] to provide his version of the events resulted in information included in the waiver report.” As for appellant’s claim that the court below abused its discretion in weighing the statutory factors, the State counters that “the circuit court identified and addressed seriatim the [§] 4-202(d) evaluation factors,” as mandated by the statute. And, as for appellant’s claim that the circuit court’s mention of his numerous prior contacts with the juvenile system, resulting in dismissals, amounted to an improper “bias against persons domiciled in Baltimore City,” the State responds that the court merely “indicated disappointment that there had been no earlier interaction with Gaines on a juvenile level,” noting that the court “stated that it was not finding fault based on the ‘huge volume of cases’ handled in Baltimore [C]ity, where Gaines resided.” We begin our analysis with appellant’s contention that the circuit court considered non-statutory criteria in its weighing of the factors. As noted previously, the reverse waiver statute includes, among the factors to be weighed, “the nature of the alleged crime,” CP § 4-202(d)(4), whereas the waiver statute includes as a factor “[t]he nature of the offense and the child’s alleged participation in it.” CJ § 3-8A-06(e)(4).

As to the “nature of the alleged crime” factor, In re: Waters, 13 Md.App. 95 , 281 A.2d 560 (1971), disapproved on other grounds by In re: Anderson, 20 Md.App. 31, 40 , 315 A.2d 540 (1974), is instructive. Although Waters was a waiver case, we recognized in Whaley, supra, 186 Md.App. at 448 & n. 15, 974 A.2d 951 , that Waters explicates the proper standard to be used in weighing “the nature of the alleged crime” in both waiver and reverse waiver cases. There, this Court explained: One of the factors to be considered is the nature of the offense, ... and we think this may encompass not only the type of crime but the circumstances surrounding its commission. That a victim was beaten or shot during the ¹⁴ course of a robbery in addition to having his property stolen is certainly of probative value on the question of waiver. 13 Md.App. at 104 , 281 A.2d 560 (emphasis added).

As we shall explain in greater detail later, the circuit court’s remarks in the instant case show that it was making every effort to avoid any consideration of the level of appellant’s participation. But, even if the circuit court had weighed the level of appellant’s alleged participation, it would not have erred in doing so. It is difficult, if not impossible, to consider “the nature of the alleged crime,” which the court must do, without considering the actions taken by the alleged perpetrators to commit that crime. Thus, we do not interpret that factor in the reverse waiver statute as being completely divorced from consideration of the actions taken by the alleged perpetrators.

It would be absurd to conclude that, in considering the nature of the offense, a juvenile court, in a waiver hearing, could consider the accused’s level of participation in determining that he should be tried as an adult, but that a circuit court, in a reverse waiver hearing, cannot take into account the accused’s level of participation in deciding that he should be transferred to juvenile court. Indeed, if appellant’s strained interpretation of the “nature of the alleged crime” factor were to prevail, it would lead to unpalatable results. For example, in a case where a fourteen-year-old child has been induced by those older than he into acting as a lookout in an armed robbery that results in a felony murder, the court would be unable to consider his minor and limited role in the crime in deciding whether to grant a reverse waiver. That is a result that would serve neither the interests of the public, the juvenile, nor our system of justice.

We do not believe the General Assembly intended such a rigid, inflexible interpretation of “the nature of the alleged crime” and thus reject appellant’s interpretation, since we “ ‘avoid construing a statute in a way which would lead to absurd results.’ ” Nelson v. State, 187 Md.App. 1, 13 , 975 A.2d 298 (2009) (quoting Blandon v. State, 304 Md. 316, 319 , 498 A.2d 1195 (1985)). ¹⁵ We next address the “presumption of guilt” issue. In Whaley, supra, 186 Md.App. at 444-49 , 974 A.2d 951 , the case upon which appellant relies for the proposition that the court below improperly presumed his guilt, we analyzed the waiver and reverse waiver statutes and determined that, in a reverse waiver hearing, it was legal error for a court to presume the child’s guilt of the alleged offenses. Id. at 449 , 974 A.2d 951 . Because the circuit court, in that case, among other things, presumed the child’s guilt in a reverse waiver hearing, we reversed and remanded for a new reverse waiver hearing.

Id. at 450, 453 , 974 A.2d 951 . But, appellant’s reliance on Whaley is misplaced. There, during a reverse waiver hearing, the circuit court addressed the nature of the juvenile’s offense, stating: “So for today’s proceeding, I believe that Mr. State’s Attorney is right, I am to assume that the charges as brought against the individual are true and that the allegations filed form the basis thereof are true, that’s my role today.” Id. at 439 , 974 A.2d 951 (emphasis added). Then, explaining its denial of the defendant’s reverse waiver motion, the court further remarked that “the facts that I have to accept is they apparently armed themselves in anticipation with BB guns, by mutual agreement approached a victim and [ ] when they attempted to rob the victim[,] the robbery failed and [they shot him in the face and head].” Id.