Hazell v. State

Murphy, C. J., delivered the opinion of the Court. The appellant was charged by juvenile petition with being a delinquent child under Maryland Code, Article 26, Section 70, et seq. by reason of having allegedly committed, on October 27, 1969, three assaults with intent to murder and one armed robbery. He was then seventeen years of age. The State filed a motion for waiver of juvenile jurisdiction and an evidentiary hearing was held before the Juvenile Master who held the matter sub curia until he could obtain a report from the Department of Juvenile Services.

The Department recommended against the waiver and the Master, concurring in this judgment, denied the State’s motion. The State filed exceptions to the Master’s recommendations and an evidentiary hearing was held by the court, Taylor, J., who sustained the State’s exceptions and ordered that juvenile jurisdiction be waived. This appeal from that determination followed. See Article 26, Section 70-25.

Appellant claims (1) that he was deprived of due process of law when the hearsay testimony of the investigating police officer, Detective Robert Borruso, was received in evidence over his objection at the hearing before the Master, and later considered by the court in reaching its determination to order the waiver of jurisdiction, (2) that the court was prejudicially influenced by hearsay information contained in the report of the Department of Juvenile Services, and (3) that by the court’s acceptance of such hearsay testimony, he was denied his constitutional right to confront and cross-examine the witnesses. Underlying appellant’s contentions is the claim that the Supreme Court’s decisions in Kent v. United States, 383 U. S. 541 , and In Re Gault, 387 U. S. 1 , constitutionally require the State to afford the same safeguards of due process of law at waiver hearings in juvenile cases as ¹⁴⁷ are required in the trial of criminal cases. He urges that such waiver hearings are of critical importance since, if jurisdiction is waived to the criminal court, the juvenile will be subjected to a guilt determining process at a criminal trial which could result in penal incarceration —in his case up to sixty years. Because of these consequences, appellant specifically urges that the strict rules of evidence governing criminal trials must be applied in such waiver determinations; that the State must be required to prove its case for waiver beyond a reasonable doubt, and not merely by the civil standard of a preponderance of the evidence.

The specific factors to be considered in determining the question whether to waive juvenile jurisdiction to the criminal court are set forth in Article 26, Section 70-16, as follows: “(1) Age of child. (2) Mental and physical condition of child. (3) The child’s amenability to treatment in any institution, facility, or programs available to delinquents. (4) The nature of the offense.

(5) The safety of the public.” To aid it in making its determination, “the court may request that a study be made concerning the child, his family, his environment, and other matters relevant to the disposition of the case.” Section 70-16 (e). In a similar vein, Maryland Rule 911 b provides that where the court orders that “a waiver investigation be made,” the report of such investigation “shall include all social study records that are to be made available to the court at the hearing.” The Rule further provides that such report “shall be made available to counsel for the parties before or at the commencement of the [waiver] hearing.” Section 70-18 provides, in effect, that while a determination that a child is delinquent must be based upon allegations proven beyond a reasonable doubt, in all other instances, presumably including waiver of jurisdiction ¹⁴⁸ hearings, the allegations need only be proved by a preponderance of the evidence. Rule 912 c similarly provides that while the rules of evidence applicable to criminal cases shall apply to delinquency adjudications, the rules of evidence applicable to civil cases shall apply in all other juvenile hearings. Under Maryland Rule 908 e a Juvenile Master may be assigned by the court to hear cases involving waivers of juvenile jurisdiction.

The Master is required at the conclusion of the hearing to “announce his findings and recommendations,” which are thereafter transmitted to the court. The court may, in the absence of exceptions taken by either party, confirm or modify the Master’s recommendations or remand for further proceedings. Where exceptions are filed to the Master’s recommendations, as permitted by Rule 908 e 3, the matter is set for hearing before the court, at which time “the judge shall hear the entire matter or such specific matters as set forth in the exceptions de novo.” At the waiver hearing before the Master in this case, two of the three assault victims, though summoned by the State, were unable to attend for medical reasons. The State produced Detective Borruso to testify with respect to his investigation of the offense.

Appellant promptly objected to any hearsay testimony that Borruso might give, and also to any identification that Borruso might make of him as the person who committed the offenses. As a result of appellant’s repeated objections, Borruso’s testimony was limited to a bare outline of what his investigation revealed, namely, that two boys entered a store and held it up; that one of the boys had a gun and, in the course of the robbery, shot one employee in the back or side; that he also shot a customer, and fired other shots, one of which ricocheted and caused fragments to strike a third victim. Appellant’s father and mother and a family friend testified with respect to appellant’s prior good conduct. The report of the Department of Juvenile Services covering the period from appellant’s initial detention in the Waxter Children’s Center through the date ¹⁴⁹ of the hearing before the Master, was subsequently received in evidence.

Much of it was favorable; some was not. The data included had been assembled from social workers, a youth supervisor, a school principal, a probation officer, and an assistant departmental superintendent. It was comprehensive and covered appellant’s general conduct, school and health record, his personality, and his home and economic conditions. The report indicated that during his detention at the Waxter Center, his attitude was one of “bare tolerance”; that he showed no anxiety with respect to the charges; that he was confident that he would not be punished for the offenses, and he was not concerned about their seriousness.

The report further indicated that appellant had no previous record; that he was passive and cooperated during the investigation and had made a good adjustment during his detention at Waxter; that he was not a serious behavior problem either in school or at home. The report indicated that appellant was a “social isolate”; that his family situation was far from ideal; that he was a known truant who had been suspended for cutting classes. At the hearing before the court on the State’s exceptions to the Master’s recommendation that juvenile jurisdiction not be waived, the appellant introduced the transcript of the hearing before the Master. The State then called one of the victims to testify.

She related that a boy, whom she identified without objection as the appellant, came into the store, produced a gun, shot one person in the back, pressed his gun into the side of a customer and pulled the trigger; 1 and took money from the cash register. Appellant’s mother again testified at the hearing with respect to his general good conduct. In waiving juvenile jurisdiction, Judge Taylor said: “* * * The act of armed robbery requires prior planning and preparation, however slight, and the forming of an intent to commit the act as ¹⁵⁰ distinguished from an act of spontaneity, which may be associated with a childish prank or a response of immaturity. The acts of which he is charged are acts in which grievous bodily harm was inflicted upon members of society without provocation. “There was made a complete investigation into the background of this youth by the Department of Juvenile Services.

The investigation revealed that the overall attitude of the youth is barely tolerable and he is overly confident he will receive no punishment as a result of the charges if proven. The investigation further revealed that the youth has been a truancy problem at school, and is from a broken home wherein he receives little, if any supervision from his mother with whom he resides. “The Court has weighed the recommendations of the Department of Juvenile Services, but in view of this youngster’s apparent total disregard for the safety and well-being of others as exhibited by his conduct leading to the present charges the Court will not adopt these recommendations. “However, the legislature has vested in the Court the determination whether youths under eighteen years of age charged with certain offenses, some of which are armed robbery and assault with intent to murder, which if committed by an adult would be a crime, shall be tried under the usual criminal procedures. In reviewing the evidence in this case and inferences drawn therefrom and considering among other things the factors to be considered by the Court as set forth in Article 26, Section 70-16, the Court concludes that the acts of which the respondent is charged resulted from planning, surveillance, and the formulation of a scheme to perpetrate the armed robbery, and as so often ¹⁵¹ occurs, led to the discharging of the weapon to the injury of the complaining witnesses in these cases. In the circumstances the Court deems that the respondent’s activities were not the indiscreet, unplanned, spontaneous acts of a juvenile but the totally formulated scheme of one bent upon taking the property of another without concern for the physical safety of the custodian of that property or others who witnessed the robbery.” I Kent v. United States, supra, relied upon by appellant, involved a waiver of juvenile jurisdiction hearing under the Juvenile Court Act of the District of Columbia.

That case dealt solely with, and was expressly limited to, the interpretation to be given to the statute. Kemplen v. State, 295 F. Supp. 8 (D. C. Md.) ; Johnson v. State, 3 Md. App. 105 ; State v. Hance, 2 Md. App. 162. The Supreme Court held in Kent that the waiver hearing was a critically important action determining vitally important statutory rights of the juvenile. It stated that the waiver hearing need not conform “with all of the requirements of a criminal trial or even of the usual administrative hearing,” but that “the hearing must measure up to the essentials of due process and fair treatment.” At 562.

In the course of its opinion, the Supreme Court noted with approval the relevance of, and use by, juvenile courts of social and other records pertaining to the juvenile’s history. The court said that access to such records should be given to the juvenile’s counsel to afford him an opportunity to impeach or otherwise challenge them. It said that there was no irrebuttable presumption of accuracy attached to staff reports; but that such reports were subject “within reasonable limits having regard to the theory of the Juvenile Court Act, to examination, criticism, and refutation.” At 563. The court concluded, by saying: “While the juvenile court judge may,