Matter of Johnson

Gilbert, J., delivered the opinion of the Court. By the Laws of 1969, Ch. 432, § 2, codified as Md. Ann. Code art. 26, § 70, the General Assembly of Maryland set forth in unambiguous terms its purpose in respect to the law governing juvenile causes and delinquent children. The Legislature stated the purpose of the Act to be: “(1) To provide for the care, protection and wholesome mental and physical development of children coming within the provisions of this subtitle; (2) To remove from children committing delinquent acts the taint of criminality and the consequences of criminal behavior, and to substitute therefor a program of treatment, training, and rehabilitation consistent with the protection of the public interest; (3) To place a child in a wholesome family environment whenever possible; ⁷⁰⁷ (4) To separate a child from his parents only when necessary for his welfare or in the interest of public safety; (5) To provide judicial procedures for carrying out the provisions of this subtitle. This subtitle shall be liberally construed to effectuate these purposes.” This Court, in the case of In re Hamill, 10 Md. App. 586, 590-591 , 271 A. 2d 762 (1970), said in reference to the legislative purpose: “. . . [I] t is clear that the Legislature intended no departure in philosophy from that underlying previous juvenile court enactments in Maryland, as interpreted by the Court of Appeals, viz., that juvenile proceedings are of a special nature designed to meet the problems peculiar to the adolescent (In re Fletcher, 251 Md. 520 [ 248 A. 2d 364 (1968)]); that the proceedings of a juvenile court are not criminal in nature and its dispositions are not punishment for crime (In The Matter of Cromwell, 232 Md. 409 [ 194 A. 2d 88 (1963)]); that the juvenile law has as its underlying concept the protection of the juvenile, so that judges, in making dispositions in juvenile cases, think not in terms of guilt, but of the child’s need for protection or rehabilitation (In re Johnson, 254 Md. 517 [ 255 A. 2d 419 (1969)]) ; that the juvenile act does not contemplate the punishment of children where they are found to be delinquent, but rather [is] an attempt to correct and rehabilitate them in ‘a wholesome family environment whenever possible,’ although rehabilitation may have to be sought in some instances in an institution (Moquin v. State, 216 Md. 524 [ 140 A. 2d 914 (1958) ] ) See also In re Arnold, 12 Md. App. 384 , 278 A. 2d 658 (1971). ⁷⁰⁸ Cognjzant of the fact that not in all situations are juveniles susceptible to the rehabilitative programs available through the Department of Juvenile Services, the Legislature specifically removed from the jurisdiction of the juvenile court certain offenses, Md. Ann. Code art. 26, § 70-2(d) (1) and (3). 1 The General Assembly also provided that motor vehicle violations committed by juveniles over 16 years of age, with the exception of “manslaughter by automobile,, possession of a stolen motor vehicle, unauthorized use or occupancy of a motor vehicle, tampering with a motor vehicle,” or a violation of operating under the influence of alcohol or drugs, should be tried by the District Court.

Violations of the motor vehicle law, Md. Ann. Code Art. 66^, by persons under the age of 16, or violations by persons age 16 or over when charged with the foregoing quoted exceptions, rests in the juvenile tribunal. The State’s Attorney has the right, after a petition charging delinquency has been filed in the Juvenile Court, to seek a waiver of the court’s jurisdiction, Md. Ann. Code Art. 26, § 70-16, provided he complies with Maryland Rule 911. The Legislature has mandated that five factors are to be considered by the juvenile judge in any waiver proceeding. Md. Ann. Code Art. 26, § 70-16 (b).

Those factors are: “(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. ⁷⁰⁹ (4) The nature of the offense. (5) The safety of the public.” Not all of the five factors need be resolved against the juvenile in order for the waiver to be justifiable.

In re Waters, 13 Md. App. 95, 97 , 281 A. 2d 560 (1971); Hazell v. State, 12 Md. App. 144 , 277 A. 2d 639 (1971). In In re Flowers, 13 Md. App. 414 , 283 A. 2d 430 (1971), at 417, it is said: “. . . [T]he purpose of a juvenile waiver hearing is to determine whether or not the juvenile is a fit subject for juvenile rehabilitative measures.” We pointed out in Hazell, supra, that a waiver hearing is a determination of whether a juvenile will receive non-punitive rehabilitation as a juvenile from the State’s social agencies, or whether he, if found guilty, will be sentenced as if the juvenile were an adult. We stated, at 154: “. . . [J]uvenile jurisdiction is properly waived where, under Section 70-16 [of Md. Ann. Code Art. 26], the juvenile is found, by an exercise of sound judicial discretion based upon legally sufficient evidence, to be an unfit subject for juvenile rehabilitative measures.” See also Kemplen v. Maryland, 428 F. 2d 169 (4th Cir. 1970). In the instant case, the appellant, Diane Connie Johnson, was charged in a “Petition” filed in the Juvenile Court on August 16, 1972, with being a delinquent child, “For the reason that on May 21, 1972, Hrs. 5:30 p.m. . . . [she] unlawfully in a grossly negligent manner did kill and slay Lawrence Brittingham, 2 [age 2 years].” Miss Johnson was 16 years of age at the time of the occurrence. ⁷¹⁰ On September 14, 1972, the State’s Attorney for Baltimore City sought a waiver of jurisdiction.

The waiver hearing was held on November 1, 1972, at which time the appellant was 17 years of age. At the hearing, the judge stated that the “ground rules” were to be “an examination of the five criteria set forth in the statute to determine whether or not to waive jurisdiction.” Md. Ann. Code Art. 26, § 70-16, quoted above. The Assistant State’s Attorney then told the juvenile court judge: “. . . [T]he basis for the State’s request for waiver is that this charge is too serious to be tried in juvenile court.” The State then stated to the judge that: “[Miss Johnson], who is an unlicensed driver, asked the boy friend, who was twenty-one years old and is a licensed driver, if she could , drive the car. He gave her permission.

A short while later as she was turning the corner, she made a wide turn . . . and instead of putting her foot on the brake she put her foot on the accelerator and she went up on the sidewalk and struck three children. One of them was pronounced dead upon arrival at the hospital.” After the incident, Miss Johnson was sent home by her boy friend, and he told the police upon their arrival at