A.M.H. v. State, J-88-276

Citation1988 OK CR 269,766 P.2d 351
Decision Date18 November 1988
Docket NumberNo. J-88-276,J-88-276
PartiesA.M.H., Appellant, v. STATE of Oklahoma, Appellee.
CourtUnited States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Appellant, A.M.H., was charged in Delaware County District Court, Case No. CRF-87-187, for the offense of first degree murder. After a preliminary examination including a prosecutive merit hearing in which appellant's motion to certify him to the Juvenile Division of the Court was denied, appellant was bound over to stand trial as an adult. JUDGMENT OF MAGISTRATE DENYING A MOTION TO CERTIFY appellant as a juvenile is AFFIRMED.

Terry J. Hull, Asst. Appellate Public Defender, Norman, for appellant.

Bobby C. Ramsey, Robert C. Jenkins, Asst. Dist. Attys., Jay, for appellee.

OPINION

BRETT, Presiding Judge:

Appellant, A.M.H., age 16 years, was charged with the offense of First Degree Murder in Delaware County, Oklahoma, under the reverse certification statute, in CRF-87-187. He filed a motion for certification to the Juvenile Division of the Court under 10 O.S.Supp.1986, § 1104.2. Appellant's motion was denied and he appeals.

Appellant was apprehended in Bristow, Oklahoma, and was thought to be a runaway child. The Bristow Police notified Sheriff Hughes of Delaware County. He and Deputy Carl Sloan went to Bristow on November 17, 1987, and returned A.M.H. to Delaware County. At the time, appellant was not a suspect in the homicide discovered on November 6, 1987.

On November 18, appellant's mother was present when the authorities began to interrogate A.M.H. concerning any knowledge he might possess relative to the death of his seventy-eight year old grandmother, Florence Downing. The deceased's body was found in her trailer house on November 6, 1987. She had been shot by a 16 gauge shotgun at close range. The autopsy report revealed that her death resulted from a gun shot wound to the left chest, resulting in trauma to vital organs and hemorrhaging. No gunpowder residue was present around the wound or within the wound track. Dr. Merchant testified that death, while not immediate, was very rapid.

Several officers were present during the initial interrogation of appellant. On November 19, 1987, O.S.B.I. Agent Thurman entered the picture. Since little progress was being made with the interrogation, sometime between 10:30 and 11:30 a.m., Agent Thurman suggested that everyone leave the room, except appellant and himself. He testified that "I told [A.M.H.] that he was not being truthful with Law Enforcement Officers and that he knew more about the death of Florence Downing and I thought that he was involved, and that it was a burden for him to be carrying--being involved in it and it was time for him to be truthful with Law Enforcement Officers." (PH Tr. I, p. 29) His continued testimony was along the same lines, with some embellishment. But, he insisted that he did not question appellant, but only visited with him. He also advised appellant that should he decide to tell more, his mother would be present. He related that the young man decided to confess, and his mother was called back into the room.

During the time appellant made his confession, Agent Thurman, appellant's mother and appellant were the only persons present. Appellant and his mother were both again advised of their "Miranda rights" before the confession was commenced. The tape recorder was turned on, and appellant confessed to his part in the homicide. The confession is most vital to the State's case against appellant.

Defense counsel filed a motion to suppress the confession which motion was overruled. Under the provisions of 10 O.S.Supp.1986, § 1109, a juvenile's confession is not admissible against him if it was taken in the absence of "the presence of the parents, guardian, attorney, or legal custodian of the child." The reverse certification mechanism had not yet commenced to operate, because no charge 1 had yet been filed against appellant. At that particular moment, appellant was a sixteen-year-old juvenile. Therefore, the five minute period during which Agent Thurman "visited" with appellant is the critical period of time.

In his first assignment of error, appellant asserts that his confession was obtained in violation of his constitutional and statutory rights. 10 O.S.Supp.1986, § 1109, clearly requires the presence of the parent, guardian, attorney or legal custodian of the child. There is no contention that appellant's Miranda rights were not explained to him and his mother. They both indicated that they understood those rights, and appellant's mother had on other occasions had those same rights explained to her. In fact, on at least four occasions during a series of interrogations those rights were explained, and appellant and his mother executed a written waiver. The only question presented concerns the five minute period when Agent Thurman was alone with appellant. It was right after that visit with appellant that the Agent came out of the room and advised appellant's mother "that [A.M.H.] had something to tell me and that it was necessary that she be present, and that he was going to talk to me about the--how the death occurred."

Appellant cites A.L.T. v. State, 614 P.2d 74 (Okl.Cr.1980), to support his position. While the statements of law are pertinent, the facts of A.L.T. are inapposite to those in the instant case. In A.L.T. his rights were not explained to him prior to the questioning by one of the first officers who learned all the details of other crimes from A.L.T., nor were his parents, guardian or attorney present. A.L.T. was locked up in jail. Appellant asserts in his brief that it was not until information gained by "the secretive questioning" of (A.M.H.) by Agent Thurman that the confession was obtained. However, whether or not the "visit" by Agent Thurman was questioning becomes speculative and conjecture. His testimony reflects that it was not questioning. The appellee's brief does not discuss the critical five minute period. Instead, it concerns itself with only a discussion to the administration of the Miranda rights.

We therefore hold that absent some testimony to the contrary, the magistrate did not commit error when she overruled appellant's motion to suppress the confession. This, however, does not preclude the trial court from conducting a proper in camera hearing in accordance with Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964), to ascertain a more complete reflection of what the "visit" consisted of. In this case, the magistrate had only the testimony of O.S.B.I. Agent Thurman to consider. When the magistrate entered her ruling on the confession, she limited her ruling to the prosecutive merit hearing only. When she stated, "Therefore, I am going to find at this point at least for the purpose of a prosecutive merit hearing, that there was a compliance with Section 1109 [Title 10] in this matter." Appellant's first assignment of error is denied.

Appellant's second assignment of error asserts that the court abused its discretion when it failed to certify appellant as a juvenile.

The prosecutive merit in this case is not at issue, except for the admissibility of appellant's confession. Since we have already found that, based upon the testimony before the magistrate, the confession was properly admitted. The confession is no longer an issue. Therefore, refusal to certify appellant as a juvenile is the only issue now to be resolved.

Title 10 O.S.Supp.1986, Section 1104.2(C) requires the Court to consider four factors, listed in order of importance, when ruling on the certification motion. These factors are as follows:

1. Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;

2. Whether the offense was against persons or property, greater weight being given for retaining the accused person within the adult criminal system for offenses against persons, especially if personal injury resulted;

3. The record and past history of the accused person, including previous contacts with law enforcement agencies and juvenile or criminal courts, prior periods of probation and commitments to juvenile institutions; and,

4. The prospects for adequate protection of the public if the accused person is processed through the juvenile system.

In this case, the magistrate considered all four factors and entered her ruling thereon. Appellant complains that the magistrate did not...

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