Arnold, In re

• Decision Date: 25 June 1971
• Docket Number: No. 618,618
• Citation: 278 A.2d 658,12 Md.App. 384
• Parties: In re David ARNOLD and Brian Nicholus Arnold.
• Court: Court of Special Appeals of Maryland

Page 384

12 Md.App. 384

278 A.2d 658

In re David ARNOLD and Brian Nicholus Arnold.

No. 618.

Court of Special Appeals of Maryland.

June 25, 1971.

Joseph P. McCurdy, Jr., Baltimore, with whom was Philip H. Goodman, of Goodman, Meagher & Enoch, Baltimore, for appellant.

George A. Eichhorn, III, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and J. Thomas Clark, State's Atty., Queen Anne's County, on brief for appellee.

Argued before THOMPSON, MOYLAN, POWERS, CARTER and GILBERT, JJ.

GILBERT, Judge.

The Appellants, brothers, were both charged with being delinquents in Queen Anne's County Juvenile Court petitions. The petitions alleged that they 'did assault and beat Barbara Lee Currens, age 12, with a stick.' They entered a general denial and both boys on November 4, 1970 were adjudged to be delinquent and were committed to the Maryland Training School.

The boys' parents had been served on October 24, 1970 with a petition charging that each of the children was a delinquent. ¹ Both boys executed, in court, a 'Waiver of Consent and Election Not to Contest'. ² Their father, Richard Arnold, consented, in writing, to his children's waiver.

On appeal, a twofold attack is made: (1) the Appellants were denied the right to counsel because a waiver had been signed by the father who alleged he had been told 'that the proceedings would not result in the commitment of the Appellants,' and (2) that the commitment was contrary to the express purposes of Article 26, Section 70, of the Maryland Code.

The testimony established that on October 5, 1970, David Arnold (David), age 13, and Brian Nicholus Arnold (Nicky), age 11, were playing at the Bay City Community Beach in Queen Anne's County. Barbara Lee Currens, age 12, in company with other children, was also at the beach. Barbara testified, 'See, we were over on the Community Beach playing, and then we saw this rope on the tree hanging down and we were swinging on it. It was my turn so there was a boy in front and there was a boy on the side. The boy in front of me said a couple of bad words, and get off the rope. I said, 'no.' The boy on the side of me hit me so I jumped down. * * * I jumped down and grabbed his hand and told him to drop the stick. So, he did, and brother came and hit me on the back. While the other was walking I got hold of the other who hit me on the back.'

She then related that she had been struck 'around five times'; that the Appellants had taken turns hitting her. Miss Currens stated she struck the boys with her fist. She identified both boys as her assailants. She said she lost no time from school as a result of the assault. Her total medical expenses were $6.00 and consisted of treatment by a physician for a cut on the back and a tetanus shot. Her clothing was not damaged.

Jane Austin, a witness, told substantially the same version of the incident, except for the fact that, 'David said it was their swing and we better get off or else they were going to hit her over the back with a stick. So, he picked up the stick and hit Barbara with it, so, she got down and grabbed his hand so he stopped.' Jane then stated that while Barbara was fighting with David that Nicky picked up the stick and hit Barbara. The witness informed the court that she told everybody (the other children present) 'Let's help.' She looked for a stick but by the time she located one David and Nicky were running home. Jane and Barbara proceeded to locate Barbara's mother, and with her drove to the Arnold home. In response to the knock the boys opened the door. Mrs. Currens asked to talk to Mrs. Arnold, but was informed she was not at home. When Mrs. Currens invited the brothers to come outside of the house and to look at her daughter's back in order that she might show them what they had done, Nicky said, 'Why don't you shut your damn mouth.' He then shut the door. Mrs. Currens, Barbara and Jane went to the police station and lodged their complaint against the Arnold boys. Neither Mr. nor Mrs. Arnold ever contacted Mrs. Currens relative to the assault, and there is no evidence that they knew about the incident until they were notified by the probation department.

Mr. Arnold denied any knowledge of the incident and explained that his wife was not at home on October 5, 1970, the day of the offense, because she was at a doctor's office. Neither boy testified. ³ The court asked for the report of the probation officer, which was apparently received into evidence, and the probation officer informed the court that Mr. John Walker, the principal of the Stevensville Middle School, wanted to say something. Mr. Walker testified as to the Appellants absences from school; that David 'was doing well for his ability and was cooperative in class' but that 'Nicky is not doing as well academically as we feel he could do'; that he was concerned with the fact that Nicky had caused disruptive behavior in class, was ejected from an assembly for similar behavior and that he had had a number of fights with students. Nicky had only been in that school since September, 1970. Mr. Walker stated that Nicky had used other students to do things for him such as going off the campus grounds for cokes and that he had spoken to Nicky about the matter. The following took place:

'THE COURT: Nicky is supposed to be one of the worst discipline problems in the school.' ⁴

'THE WITNESS: Nicky is a problem. I have never-'

'THE COURT: That's the way he is classified in this report.' ⁵

'THE WITNESS: Is that my report, sir? I haven't rated him as to who is worst, but Nicky has been a discipline problem and taken a great deal of my time.'

'THE COURT: All the Court wants to say at this point to you, Mr. Walker, is that the first time such conduct as appears to have been present in this case manifests itself to you in your capacity get in touch with Mr. Horwath. They only have to misbehave once as far as the Court is concerned. We're not going to put up with it; we will back you up.'

Then Mr. Walker continued his testimony and told the court that Nicky sometimes wore a hat to class which he removed when told and later put it back on; that he had trouble getting Nicky to keep his shirt-tail in and that if Nicky's behavior did not improve he would have to suspend him. He said that the parents had not attended P.T.A. meetings, or the school 'open house'. Mr. Arnold, in a combination of testimony and cross-examination again denied he knew of the incident, or any disruptive behavior caused by the boys in the school. In fact, Mr. Arnold said, 'Like I said, I never knew anything about it until now.'

The Appellants, in support of their first contention, inform us that the father, Mr. Richard Arnold, alleges that he had been told by the probation officer that 'the proceedings would probably not result in commitment.' Then they argue that if the waiver executed by the brothers, and consented to by their father, was in any way procured in reliance upon this alleged misstatement, such a waiver would not be intelligently made, and, consequently, invalid.

At the time of the commencement of the hearing, the juvenile judge asked Mr. Arnold whether or not he wished an attorney. His answer was 'no.' The probation officer stated that he had been assured that they (the Arnolds) would want counsel if the matter went to court. Mr. Arnold said, 'We did at the time.' The court asked that the waivers be signed, saying, 'Have Mr. Arnold execute the waivers. Go over it with him and have him execute those waivers.'

We have carefully reviewed the record in this proceeding and fail to find any testimony, argument or inference to support the Appellants' position, and, in fact, the Appellants fail to direct our attention to anything in their own support except an inference which they believe may be drawn from the fact that the father asked at the conclusion of the hearing if there was 'a chance of appeal on their part until I can get an attorney. I didn't realize it was going to be this serious.' The belated realization of the seriousness, and the desire to employ counsel, does not lead us to conclude that the Appellants' father was in any way misled by the probation department. There is nothing in the record to indicate that the waiver was not voluntarily and knowingly signed.

We shall now consider the second argument presented by the Appellants; that is, that the trial court committed the Appellants contrary to the express purpose of Article 26, Section 70, of the Annotated Code of Maryland.

In Re Hamill, 10 Md.App. 586, 590, 271 A.2d 762, 764 (1970), contains a comprehensive discussion of the Maryland juvenile law. Chief Judge Murphy in that case said:

'The law of this State governing juvenile causes and delinquent children was substantially revised by Chapter 432 of the Acts of 1969. The purposes of the Act were plainly outlined in part as follows:

'(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;

(4) To separate a child from his parents only when necessary for his welfare or in the interests of public safety.'

'By so providing, it 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); 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, ...