Burks v. State

• Decision Date: 20 September 1991
• Citation: 600 So.2d 374
• Parties: Mario BURKS v. STATE. CR 89-887.
• Court: Alabama Court of Criminal Appeals

Page 374

600 So.2d 374

Mario BURKS v. STATE.

CR 89-887.

Court of Criminal Appeals of Alabama.

Sept. 20, 1991.

Michael S. Sheier, Birmingham, for appellant.

James H. Evans, Atty. Gen., and Gail Ingram Hampton, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

Mario Burks, the appellant, was indicted for the capital robbery-murder of 83-year-old George G. Hale, Jr. A jury found the appellant guilty of the lesser included offense of felony murder and he was sentenced to life imprisonment. In this appeal from that conviction, the appellant raises two issues through appointed counsel and 26 issues in his pro se brief.

I.

The crime occurred on February 16, 1989. On February 20, 1989, the then 18-year-old appellant was taken into custody and was questioned by officers of the Birmingham Police Department. The appellant was informed of and waived the constitutional rights set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The appellant was not informed that "[i]f his counsel, parent, or guardian is not present, that he has a right to communicate with them, and that, if necessary, reasonable means will be provided for him to do so." Rule 11(A)(4), A.R.Juv.P.

Rule 11(A) applies when "the child is taken into custody." The Alabama Rules of Juvenile Administration do not define the term "child." Indeed, under the reasoning of the Supreme Court in Ex parte Ward, 540 So.2d 1350 (Ala.1988), it is highly questionable that the court has the authority to fashion such a definition. " '[R]ules shall not abridge, enlarge or modify the substantive right of any party.' ... Nor, generally, can a rule of court enlarge or restrict jurisdiction." Ward, 540 So.2d at 1351.

At the time of the crime, a "child" was defined by statute as follows:

"[The term 'child,'] after December 31, 1977, means an individual under the age of 18 or under 19 years of age and who committed the act of delinquency with which he is charged before reaching the age of 18 years."

Ala.Code 1975, § 12-15-1(3)(b). ¹

The appellant was born on December 10, 1970. He reached his 18th birthday in December 1988. On February 16, 1989, the date of the crime, the appellant was 18 years, 2 months, and 6 days old. By statutory definition, the appellant was not a child. Therefore, Rule 11 has no application.

The appellant relies on the recent Alabama Supreme Court case of Ex parte Jackson, 564 So.2d 891 (Ala.1990), wherein that Court stated:

"We issued a writ of certiorari to address one issue:

'Whether an 18-year-old defendant's confession should be suppressed when he is not told of his right, guaranteed by law, to consult with his parents, and later it is determined that he should be tried as an adult.'

"....

"... The Court held [in Ex parte Whisenant, 466 So.2d 1006 (Ala.1985) ]: 'If any one or more [of the Rule 11(A) ] warnings are omitted, the use in evidence of any statement given by the child is constitutionally proscribed.' 466 So.2d at 1007.

"Jackson argues that under Whisenant his motion to suppress is due to be granted, because [Officer] Fowler did not inform him of his rights pursuant to Rule 11(A)(4), as Whisenant requires. Jackson argues that he should have been informed of his right to consult with his parents even though he might later be tried as an adult, and that his confession should have been suppressed. The State argues that the trial court's determination that Jackson was to be tried as an adult cures the error committed by Fowler in failing to inform Jackson of his constitutional rights as a juvenile.

"We agree with Jackson that the alleged confessions are due to be suppressed.... Accordingly, the trial court's determination that Jackson was to be tried as an adult did not cure the error made by Fowler in failing to advise Jackson of his constitutional rights as a juvenile."

Jackson, 564 So.2d at 891-93.

Age was not an issue in Jackson. The only mention of the appellant's age in the opinion, other than in the specific issue framed by the Supreme Court and quoted above, is found in the statement of the facts that "[a]t the hearing on that motion [to suppress], Fowler testified that when he interrogated Jackson, he thought Jackson was 18 or 19." Id. at 892.

This Court takes judicial notice of the record filed in this Court on the direct appeal in Jackson. Jackson's exact date of birth is not clear from that record, which indicates that it was June 17 of either 1968 or 1969. Depending on which birthdate is used, Jackson was either 19 years, 9 months, and 4 days old or 18 years, 9 months, and 4 days old on the date of the crime (March 21, 1988). The attorney general candidly admits that in Jackson, the State's briefs filed in the Court of Criminal Appeals and in the Supreme Court failed to address the fact that an 18-year-old is not a child. Apparently, this fact was never presented to, or considered by, either this Court or the Alabama Supreme Court. While this Court is bound by the decisions of the Alabama Supreme Court, we do not interpret Jackson as extending Rule 11 to an 18-year-old or to any person not within the statutory definition of a "child" pursuant to § 12-15-1(3)(b). ² This Court holds that the appellant was not a "child" at the time of the crime. Therefore, he was not entitled to be advised of his "juvenile Miranda rights" under Rule 11.

II.

The argument is made that the trial court erred in allowing the appellant to be tried as an adult when he was eligible to be treated as a youthful offender, that the judge denied youthful offender treatment based solely on the crime charged, and that there was not a full and fair hearing on the appellant's youthful offender application.

Initially, we note that the youthful offender application was filed by defense counsel over the appellant's objection. One of the reasons defense counsel cited to support his request for a pretrial mental competency examination of the appellant was because "my client instructed me that he d[oes]n't want to apply for youthful offender." R. 166. The appellant argued that his decision not be seek youthful offender status was "rational," R. 228, and was based on "a lot of different reasons," R. 230

Furthermore, the statements of the trial judge refute the appellant's allegation that the denial of youthful offender treatment was summary and without proper consideration or investigation.

Prior to trial, the following occurred:

"MR. JONES [one of the appellant's defense counsel]: I was noticing that Mr. Blalock [appellant's other defense counsel], on behalf of Mr. Burks, applied for youthful offender and it was summarily denied.

"THE COURT: I don't know if it was summarily denied, but it was denied.

"MR. JONES: It was denied without a report being ordered by Your Honor from the Probation Office. My review of the law is that youthful offender status should not be denied simply because of the seriousness of the nature of the offense.

"THE COURT: I agree with you 100%. But at the time I knew enough at the time it was made that the Court did not feel it needed it. I had heard certain things in this courtroom officially that I had sufficient information to base it on.

"MR. JONES: Would you put that on the record?

"THE COURT: It's in the record.

"MR. JONES: I mean what specific information you had.

"THE COURT: I don't think you've got the right to ask any judge what specifically did you use. I used a culmination of all that I have heard about this defendant as well as certain information I had--somebody was transferred.

"MR. JONES: McConico [the appellant's codefendant] was transferred from Family Court.

"THE COURT: And I had certain information in the file.

"MR. JONES: My point is, Your Honor, you did not allow the probation offices to provide a total background on my client.

"THE COURT: I agree with you. I agree with you. Who's ever said that the probation office gives a total background?

"MR. JONES: I mean the usual and customary report.

"THE COURT: I had substantially more that I ever need or get from the probation office.

"MR. JONES: As it relates to McConico.

"THE COURT: Oh, no. To this man and to McConico. And I heard certain information in this courtroom that relates to this man.

"MR. JONES: In the alternative, Your Honor, at this point, this being May 14, 1990, Your Honor went through one trial with Maurice McConico wherein the jury returned a verdict of guilty of felony murder and the Court sentenced him to life. I think this would be a good time and I ask the Court to consider youthful offender treatment on the basis that the evidence is uncontroverted that Maurice McConico was the individual who dealt the fatal blows to Mr. Hale.

"THE COURT: Based on what? My hearing the trial?

"MR. JONES: Evidence that came out at trial.

"....

"THE COURT: I don't think this is a case for YO. I think it would be an error. I don't think this is a case that the legislature intended to include under YO."

R. 528-32, 544.

Contrary to the appellant's argument, the trial judge did not deny youthful offender status "solely and only upon a consideration of the nature of the crime charged." Watkins v. State, 357 So.2d 156, 160 (Ala.Cr.App.1977), cert. denied, 357 So.2d 161 (Ala.1978) (emphasis omitted). The record affirmatively reflects that the trial judge was familiar with this particular appellant and with the circumstances of the crime through his participation in the trial of the appellant's accomplice, Maurice McConico. See McConico v. State, 575 So.2d 1256 (Ala.Cr.App.1990) (conviction for felony-murder affirmed by memorandum). See also M.B.M. v. State, 563 So.2d 5 (Ala.Cr.App.1989) (appeal from the order of the juvenile court transferring codefendant McConico to circuit court).

"While the trial judge may not deny youthful offender status simply because of the nature or type of crime with which the accused is charged, it is entirely proper for a denial to be based on the manner in which the crime was executed, which would of...