Brown v. State

• Decision Date: 22 December 1977
• Parties: Donald Ray BROWN v. STATE of Alabama. SC 2459.
• Court: Alabama Supreme Court

Page 1384

353 So.2d 1384

Donald Ray BROWN v. STATE of Alabama.

SC 2459.

Supreme Court of Alabama.

Dec. 22, 1977.

Rehearing Denied Feb. 3, 1978.

Richard D. Lane, Auburn, for appellant.

William J. Baxley, Atty. Gen., and Vanzetta Penn Durant, Asst. Atty. Gen., for the State of Ala.

EMBRY, Justice.

The appeal by Donald Ray Brown is from an order of the Circuit Court of Lee County transferring three cases, wherein he is charged with felonies, from the Juvenile Court of Lee County District Court to the Circuit Court for trial of Brown there as an adult. The order of transfer was made after trial de novo upon appeal from the district court, all pursuant to the juvenile code, as is the appeal to this court. Tit. 13A, § 5-152, Code (1940, 1975 Interim Supp.) (§ 12-15-2 et seq., 1975 Code). We affirm.

On 18 October 1976 Brown was committed to jail under a warrant charging him with murder in the first degree. The next day the circuit court determined he was indigent and appointed counsel to represent him. In November he was committed to Bryce Hospital for examination and treatment. In December he was ordered to be, and was, returned to Lee County for trial. Then three indictments were returned against him, charging him respectively with robbery, murder in the first degree, and burglary in the second degree and grand larceny. Appointment of new counsel for him was made, after which, on 24 January 1977, the circuit court found Brown to be a child as defined in the juvenile code, § 12-15-1, Code, 1975, and ordered the cases transferred to the juvenile court. The district attorney then moved the juvenile court to transfer the cases against Brown to the circuit court for prosecution of Brown as an adult, which was done. Brown then appealed to the circuit court from the transfer order where, after trial de novo, the circuit court ordered the cases tried in the circuit court. As noted, this appeal is from the transfer order of the three cases.

The Issue

Brown advances several arguments for reversal of the transfer order. However, the majority of his contentions center around the constitutionality and validity of that order. The threshold question is whether the decision to transfer Brown from the juvenile court to the circuit court for criminal prosecution comports with the requirements of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), and with the dictates of § 5-129, Tit. 13A Code (1940, 1975 Interim Supp.).

The standards which guide a judge in making his determination to transfer a juvenile to the circuit court for criminal prosecution are set forth in § 5-129, which provides:

" § 5-129. Transfer of cases from juvenile court to criminal court. (a) The prosecutor may before a hearing on the petition on its merits, and following consultation with probation services, file a motion requesting the court to transfer the child for criminal prosecution, if:

(1) The child was 14 or more years of age at the time of the conduct charged, and is alleged to have committed an act which would constitute a felony if committed by an adult; or (2) The child is 14 or more years of age and is already under commitment to an agency, department or institution as a delinquent.

(b) The court shall conduct a hearing on all such motions for the purpose of determining whether it is in the best interest of the child or the public to grant the motion. If the court so finds and there are no reasonable grounds to believe he is committable to an institution or agency for the mentally retarded or mentally ill, it shall order the case transferred for criminal prosecution.

(c) When there are grounds to believe that the child is committable to an institution or agency for the mentally retarded or mentally ill, the court shall proceed as provided in section 5-136.

(d) Evidence of the following and other relevant factors shall be considered in determining whether the motion shall be granted:

(1) The nature of the present alleged offense;

(2) The extent and nature of the child's prior delinquency record;

(3) The nature of past treatment efforts and the nature of the child's response to such efforts;

(4) Demeanor;

(5) The extent and nature of the child's physical and mental maturity;

(6) The interests of the community and of the child requiring that the child be placed under legal restraint or discipline.

(e) Prior to a hearing on the motion by the prosecutor, a study and report to the court, in writing, relevant to the factors in subsection (d) shall be made by probation services.

(f) When a person is transferred for criminal prosecution, the court shall set forth in writing its reasons for granting the motion which shall include a finding of probable cause for believing that the allegations are true and correct."

This section was enacted after Kent, supra, the leading case on juvenile rights. Kent involved a transfer proceeding which the United States Supreme Court held to be violative of the child's rights to due process of law. That court found that a hearing must be held before a transfer is permitted, at which the child is afforded counsel. Following the hearing, the judge must give the reasons for his decision. In the opinion it was stated:

" * * * we hold that it is incumbent upon the Juvenile Court to accompany its waiver order with a statement of the reasons or considerations therefor. We do not read the statute as requiring that this statement must be formal or that it should necessarily include conventional findings of fact. But the statement should be sufficient to demonstrate that statutory requirement of 'full investigation' has been met; and that the question has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review." 383 U.S. at 561, 86 S.Ct. at 1057.

In the instant case, the requirements of Kent, and of § 5-129, have been met.

A. There was a full hearing in the juvenile court and on appeal to the circuit court, where the transfer hearing was conducted de novo (See § 5-152, Tit. 13A, Code; 1975 Interim Supp.) (Because of the de novo hearing in the circuit court the opinion can be limited to a review of that hearing).

B. Brown was represented by counsel at the hearing.

C. Following the hearing, the circuit court entered an order granting the transfer in which it set forth findings; the bases of the order:

"On this date, March 8, 1977, being the date set for hearing the appeal of the defendant, said date being set by agreement of the parties and upon motion of the defendant, the Court heard evidence ore tenus. Both parties announced ready, the State of Alabama being represented by Hon. Ronald L. Myers, and the defendant, Donald Ray Brown, being present was represented by Hon. Richard D. Lane. The Court carefully observed the demeanor of each witness as he or she testified. The Court finds as follows:

"1. Donald Ray Brown was fourteen or more years of age at the time of the alleged conduct and is alleged to have committed an act which would constitute a felony if committed by an adult.

"2. It is in the best interest of the public to proceed with the disposition of the cause as a criminal prosecution.

"3. That there are no reasonable grounds to believe the defendant is committable to an institution or agency for the mentally retarded or mentally ill.

"The Court considered evidence of the following and other relevant factors in determining whether to transfer the cause for criminal prosecution:

"(1) The nature of the present offense;

"(2) The extent and nature of the child's prior delinquency record;

"(3) The nature of past treatment efforts and the defendant's response to such efforts;

"(4) Demeanor;

"(5) The extent and nature of the defendant's physical and mental maturity.

"Prior to said hearing Probation Services made a study and report to the Court in writing relevant to applicable factors as required by law. This report was furnished to the defense.

"Therefore, the case of the State of Alabama vs. Donald Ray Brown is ordered transferred to the Circuit Court of Lee County, Alabama, Criminal Division, for the reasons as set forth in this order. It is, therefore,

"CONSIDERED, ORDERED AND ADJUDGED that the case of the State of Alabama vs. Donald Ray Brown be transferred to the Circuit Court of the Thirty-Seventh Judicial Circuit, ...