King v. State

Liss, J., delivered the opinion of the Court. The appellant, Darrell Jay King, a minor 14 years of age, was indicted in the Circuit Court for Prince George’s County and charged with rape, attempted rape, assault with intent to rape and assault and battery. The appellant, through counsel, filed a motion requesting a “reverse waiver” from the Circuit Court for Prince George’s County to the Juvenile Court of that county. The petition was filed pursuant to the provisions of Maryland Code (1957, 1976 Repl.

Vol.) Art. 27, § 594A. The trial judge ordered that a juvenile waiver investigation report be prepared by the Parole and Probation Division and also ordered that the appellant undergo a 20 day evaluation by the Maryland Children’s Center, a division of the State’s Juvenile Services Department. The reports were completed and filed with the trial court and a hearing was held. The presiding judge denied the motion for reverse waiver.

The appellant thereupon entered a plea of not guilty, prayed a jury trial and filed a pre-trial motion to suppress an extrajudicial statement taken from him at the time of his arrest. The appellant requested a hearing on the motion to suppress prior to the commencement of the trial. For reasons which the record does not disclose, the pre-trial hearing on the motion was not held, and the hearing as to whether the extrajudicial statement was voluntary was held in the presence of the jury. The trial court, after hearing the testimony of several witnesses, concluded that the ¹²⁷ statement was voluntarily made by the appellant and admitted it into evidence.

At the conclusion of the State’s case the appellant moved for a judgment of acquittal which was denied. The motion for acquittal was renewed at the conclusion of all the testimony and again denied. At the end of the case the State entered a nolle prosequi to Count II of the indictment charging attempted rape and to Count III charging assault with intent to rape, and amended Count IV to charge battery only. The case was then submitted to the jury on Count I charging rape and Count IV charging battery.

The jury returned a verdict of not guilty of rape and guilty of battery. This appeal was taken from the judgment entered on the verdict and the sentence imposed thereon. The appellant raises five issues to be considered by this Court. We have carefully considered all of them and find no reversible error and shall affirm.

We shall explain the Court’s reasons for this conclusion as to each of the issues raised. I The appellant urges that the trial court abused its discretion by ruling that a preponderance of the legally sufficient evidence demonstrated that the appellant was an unfit subject for rehabilitation measures. The legal principles which govern the decision required to be made by the trial court in a “reverse waiver” case are the same as those which determine the trial court’s action on a request for waiver from the juvenile court to the circuit court level. In a “reverse waiver”, the exclusive jurisdiction is vested in the circuit court (as in this case) and the juvenile seeks to have the circuit court relinquish its jurisdiction and transfer the case to the juvenile court for hearing and disposition.

The applicable statute is found in Maryland Code (1957, 1976 Repl. Vol.) Art. 27, § 594A. It provides that in any case involving a child who has reached 14 years of age but has not reached 18 years of age at the time of any alleged offense ¹²⁸ excluded under the provisions of Maryland Code, Courts and Judicial Proceedings Article (1974, 1976 Cum. Supp.), § 3-804 (d) (1) 1 or (d) (4), the court exercising jurisdiction may transfer the case to the juvenile court if a waiver is believed to be in the interests of the child or society.

In reaching its conclusion whether waiver should be granted the trial court must consider the following factors: age of the child; mental and physical condition of the child; child’s amenability to treatment in any institution, facility or program available to delinquents; nature of the offense and the child’s alleged participation in it; and the public safety. Matter of Trader, 20 Md. App. 1 , 315 A. 2d 528 (1974); Matter of Waters, 13 Md. App. 95, 281 A. 2d 560 (1971). We said in In Re Arnold, 12 Md. App. 384, 396-97 , 278 A. 2d 658, 664 (1971), that “disposition in a juvenile case is committed to the sound discretion of the juvenile judge, to be disturbed on appeal only upon a finding that such discretion has been abused.” In Re Hamill, 10 Md. App. 586 , 271 A. 2d 762 (1970). In Matter of Johnson, 17 Md. App. 705 , 304 A. 2d 859 (1972), at page 713 we stated, “What we said in Arnold concerning discretion in juvenile dispositions is equally applicable to waiver hearings.” The same standards are applicable in reverse waiver cases.

The appellant strenuously argues that the various reports filed by the agencies of the Department of Juvenile Services establish the amenability of the appellant to treatment, and that he should have been given the opportunity for rehabilitation. The State just as vigorously contends that there was ample evidence from which the trial court could have reached the conclusion that a waiver to the juvenile court was unwarranted. There was evidence that this was the second charge of sexual assault allegedly committed by the juvenile in a matter of months; that the ¹²⁹ youth had been placed on probation for the similar offense and had not been cooperative; that he did not recognize any degree of criminal culpability in either incident; and that he had unilaterally discontinued attendance in a rehabilitation program. It is clear from the record that the trial court carefully considered each of the five criteria required to be considered by the statute and was fully familiar with the various reports.

The court reached a conclusion that a waiver was not mandated either in the interest of the child or of society. We find no abuse of the trial court’s exercise of discretion. II The appellant next contends that the trial court erred in ruling that the appellant understood his constitutional rights under Miranda v. Arizona, 384 U. S. 436 , 86 S. Ct. 1602 , 16 L.Ed.2d 694 (1966), and knowingly waived these rights, and in further concluding that the extrajudicial statement made by the appellant to the police was voluntarily made by him. The appellant mounts a three pronged attack.

He first suggests that because of his age, his limited intelligence and his minimal ability to read and write he could not have knowingly waived his rights or voluntarily given the statement. He points out that he was evaluated as being of dull normal intelligence, was 14 years old and a seventh grade student who was characterized as slow learner and a poor reader. It is conceded by the State that it has the initial burden of establishing by a preponderance of the evidence that the accused's waiver of his Miranda rights was a knowing and intelligent waiver and that the extrajudicial statement was freely and voluntarily given. It is only after the State has met this burden to the satisfaction of the trial court that the statement may be considered by the jury as part of the “beyond a reasonable doubt” fact finding obligation.

Hebb v. State, 31 Md. App. 493 , 356 A. 2d 583 (1976); Mulligan v. State, 18 Md. App. 588 , 308 A. 2d 418 (1973). The age of the accused and his mental capacity are elements which may be ¹³⁰ considered in determining these issues. So, in Greenwell v. State, 32 Md. App. 579 , 363 A. 2d 555 (1976), a confession by an illiterate defendant, who was found to be in the dull normal range of intelligence, was held to be voluntarily given where the Court found that the defendant had been advised of his Miranda rights by police officers, had waived these rights and had voluntarily made an extrajudicial statement. In that case there was no suggestion that the police had done or said anything for the purpose of overbearing the accused's will.

Nor does youth coupled with a low I.Q. preclude a finding that an extrajudicial statement is admissible. In Bean v. State, 234 Md. 432 , 199 A. 2d 773 (1964), it was held that a 15 year old with an I.Q. of 74 had voluntarily waived his Miranda rights and made a confession. The trial court is required to look at the totality of the circumstances and determine whether or not the extrajudicial statement is admissible. Clewis v. Texas, 386 U. S. 707 , 87 S. Ct. 1338 , 18 L.Ed.2d 423 (1967); Davis v. North Carolina, 384 U. S. 737 , 86 S. Ct. 1761 , 16 L.Ed.2d 895 (1966); Haynes v. Washington, 373 U. S. 503 , 83 S. Ct. 1336 , 10 L.Ed.2d 513 (1963); Taylor v. State, 238 Md. 424 , 209 A. 2d 595 (1967); Keller v. State, 2 Md. App. 623 , 236 A. 2d 313 (1967).

In this case the testimony was that the detective had arranged a mutually convenient time for the defendant and his father to come to the police station; that he advised them of the purpose of the investigation; that the father remained in the anteroom adjoining the interrogation room when the accused and the detective discussed the matter; that the Miranda waiver form was read to the accused and he signed a waiver of these rights; that no promises or threats were made to the appellant; that appellant knowingly and willingly made a statement (which he apparently believed was exculpatory); and that after the accused read the statement he signed it. The appellant offered no evidence to contradict any of this testimony. It is clear that the State more than met its burden of proof in establishing by a preponderance of the evidence that the statement was admissible. ¹³¹ The second prong of the appellant’s attack on the extrajudicial statement is his complaint that the hearing on the motion to suppress was not held out of the presence of the jury. W@ agree that the better practice is to hold the initial inquiry on a motion to suppress out of the presence of the jury.

We note, however, that no objection was made by the appellant to the procedure utilized in this case. Nor is any prejudice to the appellant alleged or demonstrated by the manner in which the hearing was conducted before the jury. If, in fact, the statement had been found to be inadmissible under this procedure it would have required the granting of a mistrial. 1 Since the statement was ruled admissible, the same evidence would have been required to be submitted to the jury to assist it in its determination of whether the accused’s Miranda