Bey v. State

• Decision Date: 16 January 1979
• Docket Number: No. 3-675A126,3-675A126
• Citation: 385 N.E.2d 1153,179 Ind.App. 87
• Parties: Robert BEY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 1153

385 N.E.2d 1153

179 Ind.App. 87

Robert BEY, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3-675A126.

Court of Appeals of Indiana, Third District.

Jan. 16, 1979.

Dissenting Opinion Feb. 13, 1979.

Dennis R. Kramer, Crown Point, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., John D. Shuman, Asst. Atty. Gen., Bruce M. Frey, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

Following waiver of jurisdiction by the Lake County Juvenile Court on May 14, 1974, defendant-appellant Robert Bey was charged by information with the offense of assault and battery with intent to kill. ¹ A jury trial resulted in a finding of guilty of the lesser included offense of aggravated assault and battery. ² Judgment was entered thereon by the trial court and appellant was sentenced to the Indiana Department of Correction for a period of not less than one nor more than five years. Following the denial of his belated motion to correct errors, appellant brings this appeal contending that the juvenile court waiver hearing constituted an adjudication such that his subsequent criminal trial subjected him to the risk of double jeopardy, that jurisdiction was not properly waived by juvenile court, and that his criminal trial counsel was incompetent.

Appellant contends that jeopardy attached at the waiver hearing because he could have been adjudicated a delinquent as a result of such hearing. Relying on Breed v. Jones (1975), 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346, appellant argues that a hearing to waive jurisdiction to criminal court must precede an adjudicatory hearing.

The basis of appellant's argument arises from remarks made by the trial judge during the course of the proceedings and the testimony of Juvenile Referee Peter Bell adduced at the hearing on the belated motion to correct errors. Regardless of any remarks made by the trial judge, he twice found that jeopardy did not attach in the waiver hearing: the first, when he denied a motion to dismiss based upon double jeopardy; the second, when he denied the belated motion to correct errors after hearing evidence thereon.

If the facts presented to the trial judge demonstrated that jeopardy had attached in the juvenile hearing, he would have followed the law and either granted the motion to dismiss or granted the motion to correct errors.

Appellant also quotes extensively from the testimony of the referee at the hearing on the belated motion to correct errors. Although there were conflicting statements made by the referee, only the trial court was in the position to observe the witness and listen to his testimony. On appellate review the evidence is not weighed and this Court looks to that evidence which supports the trial court's judgment. Rosell v. State (1976), Ind., 352 N.E.2d 750. Such evidence reveals that the waiver hearing was conducted for the purpose of determining whether the juvenile should be transferred to criminal court and treated as an adult, that the purpose was not to find the juvenile to be a delinquent, and that the juvenile court did not make a finding that Bey did, in fact, commit the acts alleged in the petition. ³

The official record furnished this Court contains the following in regards to the juvenile hearing in this case:

"BE IT REMEMBERED that on the 14th day of May, 1974, the above-entitled cause came on for hearing in said Court and before the Honorable Peter Bell, duly-appointed Referee of the Juvenile Division, Lake Superior Court of Lake County, Indiana, on said date; the said cause was submitted to the Court for waiver hearing; and that the oral evidence, objections, and rulings of the Court on the introduction of evidence in said cause were taken down in stenotypy by Mary Halkias, Official Court Reporter of the Juvenile Division of the Lake Superior Court of Lake County, Indiana."

The finding of the juvenile referee as well as the order of the juvenile court waiving jurisdiction state, "(a)fter full preliminary hearing . . . ." A consideration of all these factors demonstrates that the juvenile hearing conducted was a preliminary hearing to determine the question of waiver and as such was not an adjudicatory hearing.

Moreover, the juvenile court could not, under the law in existence at the time of the proceedings, have adjudicated Bey a delinquent as a result of the waiver hearing.

Bey was waived to criminal court under the provisions of IC 1971, 31-5-7-14 (Burns Code Ed.) which, in 1974, ⁴ provided in part as follows:

"If a child fifteen (15) years of age or older is charged with an offense which would amount to a crime if committed by an adult, the judge, After full investigation, may waive jurisdiction and order such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult; or such court may exercise the powers conferred upon the juvenile court in this act (31-5-7-1 31-5-7-25) in conducting and disposing of such case: . . ." (Emphasis supplied.)

The requirement of a "full investigation" has been interpreted to mean that a juvenile must be given a full hearing prior to waiver, and the court must find:

1. The offense has specific prosecutive merit in the opinion of the prosecuting attorney; or

2. It is heinous or of an aggravated character, greater weight being given to offenses against the person than to offenses against property; or

3. The offense is part of a repetitive pattern of juvenile offenses; or

4. It is in the best interests of the public security that said juvenile be required to stand trial as an adult offender.

Summers v. State (1967), 248 Ind. 551, 230 N.E.2d 320; See also: Atkins et al. v. State (1972), 259 Ind. 596, 290 N.E.2d 441; Duvall v. State (1976), Ind.App., 353 N.E.2d 478; Imel v. State (1976), Ind.App., 342 N.E.2d 897; Clemons v. State (1974), 162 Ind.App. 50, 317 N.E.2d 859, Cert. den. 423 U.S. 859, 96 S.Ct. 113, 46 L.Ed.2d 86.

Bey was provided such a hearing, and it resulted in findings that the offense was of a serious nature, that there were no reasonable prospects for rehabilitating Bey by use of the facilities currently available to the juvenile court, and that there were no prospects for adequately protecting the public by use of such juvenile facilities.

Our Supreme Court responded to a double jeopardy challenge in Walker v. State (1976), Ind., 349 N.E.2d 161, at 166, Cert. den., 429 U.S. 943, 97 S.Ct. 363, 50 L.Ed.2d 313, by stating that the investigation required under our waiver statute was not an adjudication of delinquency as contemplated by Breed v. Jones, supra, but was merely determinative of the forum, and that there is no finding that certain acts have or have not been committed in fact. See also: Seay v. State (1976), Ind.App., 340 N.E.2d 369 (on rehearing).

As pointed out in Murphy v. State (1977), Ind.App., 364 N.E.2d 770, when a waiver petition is filed a hearing must be held on that issue. Therefore there was no possibility that Bey could have been adjudged a delinquent at this hearing, so no jeopardy attached. "A further hearing is required before a determination of delinquency is possible." Murphy v. State, supra.

Consequently, regardless of what the juvenile referee thought he could or could not do as a result of the juvenile waiver hearing, the law required a further hearing before an adjudication of delinquency could be made. Any other result would be beyond his power and void. Moreover, the course of action actually followed by the juvenile court as demonstrated by the record resulted in a properly conducted waiver hearing.

Appellant next contends that jurisdiction was not properly waived by juvenile court because the waiver order was not set out with the required specificity and because the juvenile court was only concerned with the serious nature of the offense.

The juvenile court found that appellant was born on February 20, 1958, and was under 18 years of age at the time of the alleged act, that the offense was serious in nature, that there were no reasonable prospects for rehabilitating the juvenile by use of currently available juvenile facilities, and that there was no adequate way of protecting the public by use of the current juvenile facilities.

In Summers v. State, supra, our Supreme Court held that a waiver order must contain a statement of the reasons supporting a waiver, and that although the statement need not include a conventional finding of facts, it should nevertheless be sufficient to demonstrate unequivocally that the strict statutory requirement of a full investigation and hearing have been met and that a conscientious determination of the question of waiver has been made. However, the record of the waiver hearing may be used to supplement the reasons for waiver as stated by the juvenile judge. Redding v. State (1977), Ind.App., 370 N.E.2d 397; Seay v. State (1975), Ind.App., 337 N.E.2d 489; Clemons v. State, supra. The record reveals allegations that on April 17, 1974, several black youths approached the truck of Mr. and Mrs. Casmir Smolinski as it was stopped for a traffic light at 21st Street and Martin Luther King Drive in Gary, Indiana. Mrs. Smolinski saw someone holding a rifle, heard her daughter scream, and attempted to pull her daughter down in the seat. As her husband was trying to drive away, Mrs. Smolinski was struck in the eyes by two bullets. She was confined in the hospital for twelve days and lost the sight of her left eye. Two youths who were present at the time of the incident identified Robert Bey as the person who fired the rifle. Additionally, it was disclosed that Bey was previously involved with the juvenile court for shoplifting and put on withheld commitment to the Indiana Boy's School. Subsequently, he was committed to the Boy's School for glue sniffing.

The juvenile court could conclude from the evidence produced that the range of dispositions available within the juvenile...