Matter of Murphy

Orth, J., delivered the opinion of the Court. These appeals concern waiver of jurisdiction in juvenile causes under Code, Art. 26, § 70-16. Matter of Waters, 13 Md. App, 95, made clear that the purposes of a preliminary hearing were not the purposes of a waiver hearing. We said that “* * * the sole function of the [waiver] hearing is to resolve the question of ⁴³⁶ waiver vel non and that this is done on the assumption that probably the crime alleged was committed and that the juvenile committed it.” We held: “Thus the State has no burden at the hearing to establish prima facie or otherwise corpus delicti and criminal agency.” At 103.

We applied the holding in Matter of Flowers, 13 Md. App. 414 . The holding was challenged in Matter of Toporzycki, 14 Md. App. 298 , and we affirmed it, saying we were not persuaded to depart from it. KING RICARDO MURPHY, appellant in appeal no. 647, and LLOYD DAVID MURPHY, appellant in appeal no. 658, each ask “Can a juvenile be waived to adult court where there has been no evidence presented that would connect him with an offense?” and “Can a juvenile be waived to adult court where there has been no evidence presented that would show the commission of an offense?” Each argues again that § 70-16 requires the State to present evidence in the nature of a preliminary hearing. Under the rule that the State has no burden at a waiver hearing to establish prima facie or otherwise corpus delicti and criminal agency, it being assumed for waiver purposes that the crime the juvenile was alleged to have committed was committed and that the juvenile committed it, the answer to both questions is “yes”.

We abide with the rule enunciated in Waters, applied in Flowers and affirmed in Toporzycki. But we do so with a caveat. Section 70-16 (b) of Art. 26, under the subheading Factors to be considered, prescribes: “In making a determination as to waiver of jurisdiction the court shall consider: (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.” 1 ⁴³⁷ We construed § 70-16 (b) in Hazell v. State, 12 Md. App. 144 . We observed that not all of the five factors to be considered need be resolved against the juvenile to justify the waiver and we felt there was no utility in requiring the court to make an arithmetic-type calculation as to the weight to be given by it to each factor.

In Waters, after finding it meet that for the determination of waiver vel non it be assumed that the juvenile committed the criminal offense alleged, we were careful to point out: “This is not to say that evidence concerning the alleged act is not to be received at the waiver hearing. 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 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 . We noted that evidence with respect to the circumstances surrounding the commission of the alleged crime was material to the factors to be considered in determining the matter of waiver.

Ibid. The short of it is that a dearth of facts before the hearing court concerning the alleged offense may, in some circumstances, raise the risk that the evidence before the court is not legally sufficient to justify a waiver of juvenile jurisdiction. Juvenile jurisdiction is properly waived where, under § 70-16, 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. The measure of the evidence is a preponderance and not beyond a reasonable doubt.

Hearsay evidence is not necessarily to be excluded. As we noted in Hazell v. State, ⁴³⁸ supra, at 153, the cases, the statute and the Maryland Rules all contemplate that such reports as those of the Department of Juvenile Services will be utilized at waiver hearings despite their hearsay character. And we thought that the fact that testimony may be hearsay would not per se call for its exclusion from evidence or prohibit it from being considered in making the waiver determination. See Matter of Waters, supra, at 97-98 and notes 4 and 5 at 98.

Appeal No. 658 — Lloyd David Murphy Lloyd David Murphy claims that the evidence before the lower court was not sufficient to support its waiver of jurisdiction over him. The lower court dictated to the court reporter a statement of the grounds for its decision to waive jurisdiction. Rule 911 c. It said: “He’s a sixteen-year-old youngster and apparently in good health both physically and mentally.

He was found to be involved in a trespassing incident which involved the breaking and entering of a school in the County and in the neighborhood where he lives, he was placed on probation and remained on probation for over a year and was discharged from probation on the 10th of June of this year, 1971; though there is an error on the sheet which says that it was ’70, but this is ’71. Eight days later he’s alleged to have held up a person living within the same general community in which he lives, a stone’s throw away from him. He is a youngster who has exhibited some hostility in his growing up within the school system, a youngster who has shown deviousness as far as authority is concerned ; and I mention that because of the statement in the earlier report from the Department of Juvenile Services pertaining to his denial of his identity to the probation officer, and a later recanting of that; and while_in the parking lot ⁴³⁹ talking with the probation officer he didn’t take this attitude of passivity as the reports from the Children’s Center would seem to indicate, but I suppose you call it took the limbo position. He was going to be the big guy amongst his friends.

Well, if he wants to be big amongst his friends that’s a choice he has to make. He can be big in more ways than one, and if he chooses to be big in a criminal manner then he just pays the cost of so being. He was on probation for over a year and was just released therefrom. Certainly, it seems that while under some wraps he can respond positively, but I believe such shows also a lack of amenability to treatment within the institutions or programs, or facilities maintained for juveniles in our state, if indeed he committed the act as alleged in the petition.

If one is to benefit at all from these programs one must have made up one’s mind that he’s going to so benefit, and it just doesn’t seem that Lloyd has determined yet that he has benefitted from the probation under the juvenile jurisdiction, a program which allows one to remain in the community and work within it, and yet the two things that Lloyd has been involved in all occurred within his local community and within a half mile or mile of his own home, based on what I can conclude from what is shown in the file. He resides at Chapel Oaks Drive which is merely a long block away from the point of Eastern Avenue and Sheriff Road, and the victim of the alleged crime lives on 58th Avenue in Fairmont Heights, a stone’s throw away. I do find that this is a very serious offense, and it poses a threat to the safety of the community, and such is evident from the nature of the offense, if indeed he committed it.” ⁴⁴⁰ The lower court had before it a petition, signed by the victim of the crime alleged to have been committed by appellant and authorized for filing by the Intake Officer, which gave as the facts on which the petition was based that on 10 June 1971 Murphy became “delinquent by reason that: he did unlawfully and feloniously, with a dangerous and deadly weapon (gun) did ROB Andrei Phillip Latney and did steal goods to the value of $40.00 (forty dollars) U.S. currency in violation of Article 27 Section 488.” The court also had for its consideration various reports which supported the findings made and conclusions reached by it in arriving at its decision. Under date of 20 July 1971 there was a memorandum signed by a probation officer and supervisor of the Juvenile Court Services — Region 7 based on a report of a waiver investigation made by the Department of Juvenile Services.

This thorough investigation covered the offense, the subject's prior criminal record, his family and neighborhood, his home and economic conditions, his school record, his health, and his personality. The memorandum recommended that appellant be evaluated at Spring Grove State Mental Hospital before any further disposition on the waiver motion. The recommendation was thus supported : “Lloyd seems to be a hostile and guarded person who has admitted a problem of drug dependency. His neighborhood is one of high delinquency and drug abuse.

His father is probably a heavy drinker and may well be an outcast from the family unit. The mother seems very domineering and protective. He has two older brothers who have been involved in crime and one is currently in prison. He indicated that he does not hallucinate, but he feels that he often has powers of predicting the future.

He seems clever and manipulative, but his achievement in school has