Matter of Waters

Orth, J., delivered the opinion of the Court. WAIVER OF JUVENILE JURISDICTION A court conferred with jurisdiction in juvenile causes, see Code, Art. 26, § 51, may waive the exclusive jurisdiction over a delinquent child 1 conferred by § 70-2 and pursuant to § 70-16 may order the child held for trial under regular procedures of the court which would have jurisdiction over the offense if committed by an adult. It may do so upon a hearing 2 at which the child is entitled to representation by counsel, § 70-18 (d), after a petition has been filed alleging delinquency and before an adjudicatory hearing, after notice prescribed by Maryland Rule 911 a. Sec. 70-16 (a).

In making 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. Sec. 70-16 (b). 3 We construed § 70-16 (b) in Hazell v. State, 12 Md. App. 144 . We observed that not all the five relevant factors need be resolved against the juvenile to justify the waiver. And we felt that there was no utility in requiring the court to make an arithmetic-type calculation as to the weight given by it to each factor.

We also considered in Hazell other aspects of the waiver hearing. Granting the critical nature of the hearing we held “that nothing in the constitution, State or federal, ⁹⁸ requires the State to satisfy the court beyond a reasonable doubt that waiver is proper; the inquiry at the waiver hearing does not require a finding of guilt or innocence, or proof of the elements of any criminal offense.” At 154. He thought that “a waiver is justified where a preponderance of the legally sufficient evidence shows that such a determination is proper in light of the factors to be considered under Section 70-16.” 4 Id. We concluded, concurring with the holding in Kemplen v. Maryland, 428 F. 2d 169 (4th Cir.), that “juvenile jurisdiction is properly waived where, under Section 70-16, the juvenile is found, by an exercise of sound judicial discretion based upon legally sufficient evidence, 5 to be an unfit subject for juvenile rehabilitative measures.” Id.

An aggrieved party may appeal to this Court from any ⁹⁹ final order of the juvenile court. Sec. 70-25. An order of waiver is a final order. Sec. 70-16 (c). 6 THE INSTANT CASE On 15 October 1970 the State’s Attorney for Baltimore City prepared a petition which was filed in the Circuit Court of Baltimore City, Division for Juvenile Causes, alleging that Thomas William Waters was delinquent for the reason that he robbed one Wade Thompson with a deadly weapon on 4 August 1970, violently stealing $127 and an undetermined amount of clothing.

Rules 901, 902, 903 d. Counsel was appointed for Waters. A waiver hearing initiated by the State’s Attorney was held on 22 January 1971. We summarize the pertinent evidence adduced.

Thompson, the victim, testified that he was working at “Mr. Clean Clothes” on 4 August 1970 when three boys came in, pulled out a revolver, told him to get on the floor, and stole money from the cash register. Thompson made a positive judicial identification of Waters as one of the robbers and said that he was the one who took the money out of the cash register. After the robbery Waters and another boy came back and warned Thompson not to identify him — “they said to tell the judge that it is not him.” Officer Edward Mello of the Baltimore City Police Department received a call of an armed holdup in progress and went to the Clean Clothes establishment, arriving about 3:00 P. M. Thompson gave a description of the robbers. While putting the descriptions over the air a call was received that three suspects were seen running into a house about a block away from the scene of the robbery.

The police entered the house by the front and ¹⁰⁰ rear. One boy dressed only in shorts and a tee shirt ran out the door up the alley and another ran out and down the alley. They escaped. Waters was found on the second floor in a tee shirt and shorts.

Told to put his clothes on he picked up a pair of gray pants on which was a cleaner’s tag. He put them on and they were too small for him. He was arrested. In the bathroom the officers found some change and in the toilet tank more change, a roll of quarters and a roll of nickels.

In a bedroom they found paper money. The gray pants were identified as stolen in the robbery. Waters offered no evidence. The record showed that Waters became 18 years of age on 19 November 1970.

See § 70-2 (e) (1). It also showed that on 27 January 1966 he was found delinquent on a charge of vandalism and given a warning. In August 1969 a charge of “assault and robbery” was dismissed in court because, in Waters’ words, “it wasn’t enough evidence.” In March 1970 he was convicted of larceny and again in his words, “got two years probation.” In November 1970 he was charged with homicide and at the time of the hearing here was awaiting trial under an indictment for murder in the first degree. 7 The juvenile court waived jurisdiction and ordered Waters held for action by the grand jury. He appealed from the order.

He claims that the waiver was not valid because the five factors to be considered were not prop ¹⁰¹ erly applied to him and because he was not afforded an opportunity to testify. The court dictated to the court reporter a brief statement of the grounds for its decision. Rule 912 c. It said: “The respondent is presently eighteen years of age.

He was three months shy of that at the time of the commission of this alleged offense. He is a strong looking physically mature young man for his age. His past juvenile record is not what would be regarded as a serious one and he has never been on probation in the Juvenile Court or in any juvenile institutions. He was just given a warning.

However, I do not feel that he would be amenable to treatment in the juvenile facilities, none the less considering what is available, because of the other factors involved here. The other factors being his apparent involvement in serious behavior. The fact that he is already going to be tried in the Criminal Court anyway and will be known to that tribunal and, I think, that in view of the fact, that he has to face a murder charge in the Criminal Court, that it would be wise to have all of the matters effecting him in a criminal way handled in the same tribunal. This is an extremely serious offense, assault and robbery with a deadly weapon with a gun, and I feel that the respondent does constitute some element of risk to the safety of the public.” Waters baldly alleges that the court did not adequately consider the five factors and apply them fairly.

We do not agree. We feel it clear that in the light of the five factors a preponderance of the evidence showed the determination to waive jurisdiction was proper. We hold that there was no abuse of judicial discretion as the conclusion inherent in the waiver that Waters was an unfit subject for juvenile rehabilitative measures was based upon legally sufficient evidence. ¹⁰² We see no basis in the record to support the bald allegation that Waters was not afforded an opportunity to testify. It is clear that he was not called to testify by his counsel and that he did not offer or otherwise attempt to testify. 8 We cannot say from the record that he was denied his right to testify at the hearing or his right to summon any person he might have desired to testify on his behalf.

It seems that the claim stemmed from the manner in which the hearing was conducted. At its start the court informed counsel: “Just so we understand the ground rules here this morning, it will be incumbent upon the State to make out a prima-facie case on this charge, which it may do if it wishes, through the narrative testimony of an officer. If the State sustains its burden in this regard, we will then examine the five criteria set forth in the statute to determine whether or not to waive jurisdiction. Those criteria being the age of the respondent, his physical and mental condition, his amenability to treatment in juvenile institutions, facilities, and programs; the nature of the offense charged, and the safety of the public.” It added that in the event waiver was declined, a master would hear the case on the merits because the court would “inevitably” be familiar with any prior record.

This approach contemplates a waiver hearing as having two phases. The first is in effect a “preliminary hearing” in the sense of that which may be conducted when an adult is accused of a crime. The primary purpose of such a preliminary hearing is to determine whether an offense has been committed, and, if so, whether there is probable cause for charging the accused with that offense, that is whether he is to be held for the initiation of further ¹⁰³ action against him. Billings v. State, 10 Md. App. 31, 33 .

Only when it is shown at the first phase that probably a crime was committed and the