Cradle v. Peyton

• Decision Date: 08 September 1967
• Citation: 156 S.E.2d 874,208 Va. 243
• Parties: David Lee CRADLE v. C. C. PEYTON, Supt., etc.
• Court: Virginia Supreme Court

Page 874

156 S.E.2d 874

208 Va. 243

David Lee CRADLE v. C. C. PEYTON, Supt., etc.

Supreme Court of Appeals of Virginia.

Sept. 8, 1967.

Rehearing Denied Oct. 17, 1967.

Albert Teich, Jr., Norfolk, for plaintiff in error.

W. Luke Witt, Asst. Atty. Gen. (Robert Y. Button, Atty. Gen., Reno S. Harp, III, Asst. Atty. Gen., on brief), for defendant in error.

Before EGGLESTON, C.J., and SPRATLEY, BUCHANAN, SNEAD, I'ANSON, CARRICO and GORDON, JJ.

GORDON, Justice.

In 1962 David Lee Cradle, age seventeen, was brought before the Juvenile and Domestic Relations Court of the City of Norfolk for a hearing on two charges of armed robbery. Cradle was not represented by counsel at the hearing, nor was he told that counsel would be appointed if he could not afford to retain counsel. After the hearing the juvenile court certified Cradle to the Corporation Court of the City of Norfolk for trial as an adult on both charges. Va.Code Ann. § 16.1--176 (Repl. vol. 1960).

The grand jury returned an indictment against Cradle on each charge of armed robbery. The corporation court then appointed counsel to represent Cradle at his trial and, after hearing evidence, convicted Cradle on guilty pleas to the indictments and sentenced him to two consecutive terms of eight years each.

Cradle challenged the corporation court's conviction order by a habeas corpus petition filed in that court in 1965. He appeals from the court's order of January 11, 1966 denying the writ after a plenary hearing.

I

On May 15, 1967, after oral argument of this appeal, the Supreme Court handed down Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), holding that detention by juvenile court order of a person who was not afforded the right to counsel in the juvenile court proceedings contravenes due process. ¹ The most serious question now before us is whether Gault controls the decision of this case.

Gerald Gault, age fifteen, was picked up at his home on June 8, 1964, on the basis of a complaint that he had made lewd remarks to a woman by telephone. The sheriff who picked him up left no notice for the parents, who were away at work, but that night they learned Gerald was in custody and a hearing would be held in the juvenile court on June 9. On the day of the hearing a police officer filed a petition with the juvenile court, reciting only that Gerald was under eighteen years of age, in need of the protection of the court, and a delinquent minor.

Neither Gerald nor his parents were advised of his right to counsel, retained or court-appointed, and Gerald was not represented by counsel at the hearing. The court heard the evidence, comprised only of hearsay testimony about Gerald's lewd remarks over the telephone and of Gerald's admissions in his answers to questions put by the court. The court found Gerald was a 'delinquent child' and ordered him committed to the State Detention Home during his minority, a period of about six years. (Had Gerald been an adult the maximum punishment that could have been imposed under Arizona law for making the lewd remarks was $50 or two months imprisonment.)

No appeal being available under Arizona law, Gerald's parents brought state habeas corpus proceedings. The state courts denied habeas corpus, but the Supreme Court reversed. It held the due process clause of the Fourteenth Amendment violated because: (1) neither Gerald nor his parents were given 'timely notice, in advance of the hearing, of the specific issues * * * (to be determined at the hearing)' (id. at 34, 87 S.Ct. at 1447, 18 L.Ed.2d at 550); (2) neither Gerald nor his parents were 'notified of the child's right to be represented by counsel retained by them, or if they * * * (were) unable to afford counsel, that counsel * * * (would) be appointed to represent the child' (id. at 41, 87 S.Ct. at 1451, 18 L.Ed.2d at 554); (3) Gerald was denied the right of confrontation and cross-examination, in that evidence of the alleged lewd remarks was not given by the woman to whom they were supposedly made, but by hearsay testimony of a police officer who had talked to the woman; and (4) the juvenile court elicited a confession from Gerald at the hearing without any warning 'that he was not obliged to speak and would not be penalized for remaining silent'. Id. at 44, 87 S.Ct. at 1452, 18 L.Ed.2d at 555.

A

The holding in the Gault case does not control our decision of this case because of the significant difference between a confinement order and a certification order. A confinement order imposes a sentence of confinement in an institution ('however euphemistic the title, a 'receiving home' or an 'industrial school' for juveniles is an institution of confinement in which the child is incarcerated for a greater or lesser time'. Application of Gault, id. at 27, 87 S.Ct. at 1443, 18 L.Ed.2d at 546). A certification order transfers the case to another court for original determination whether the accused child shall be confined.

The Supreme Court held Gault's confinement under order of the Arizona juvenile court constitutionally invalid because the order denied Gault his liberty without due process. Cradle is not confined under a juvenile court order. The Virginia juvenile court made no finding of Cradle's innocence or guilt, only a finding that he should stand trial on the merits in another court. It therefore certified Cradle for trial as an adult in the court having jurisdiction to try the charges against him, the Corporation Court of the City of Norfolk.

The intent of the Gault opinion, as we read it, is to forbid confinement under juvenile court order without due process. At first glance the Court may appear to have relied upon its recent decision in Kent v. United States, supra n. 1, a certification case that upheld the right to assistance of counsel in juvenile court proceedings. But the Court had declined to decide the Kent case on constitutional grounds, saying: 'The Juvenile Court Act and the decisions of the United States Court of Appeals for the District of Columbia Circuit ² provide an adequate basis for decision of this case, and we go no further.' Id. 383 U.S. at 556, 86 S.Ct. at 1055, 16 L.Ed.2d at 94. So we take the references to Kent in Gault as intended to describe the development of statutory law respecting right to counsel in juvenile court proceedings; not as intended to extend the Kent decision beyond what it originally stood for. And we believe the Gault opinion as a whole reflects the Court's intention to deal only with the case before it; to leave open the question whether the same constitutional rules should be made applicable to certification cases.

The Juvenile and Domestic Relations Court of the City of Norfolk found that the evidence adduced at the hearing showed probable cause to believe Cradle had committed felonies. After receipt of the probation officer's report concerning Cradle's physical, mental and social condition and personality, the juvenile court determined that he should be tried as an adult--that is, he should stand trial on the merits in another court, if indicted by a grand jury. We find no denial of federal due process in the court's making those determinations without first appointing counsel to represent Cradle.

B

Even if the Gault opinion should be interpreted as making no distinction between confinement orders and certification orders, we believe the new constitutional standards laid down in Gault should be given only prospective effect. ³ See Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); Johnson v. State of New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. U.S. ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965).

The Court in Stovall v. Denno, supra, as a summary of the rules of Johnson, Tehan and Linkletter, set forth the following criteria for determining whether a decision should be retroactive or given only prospective effect: '(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.' Id. 388 U.S. at 297, 87 S.Ct. at 1970, 18 L.Ed.2d at 1203. Application of these criteria to the new standards set forth in Gault demonstrates that the standards should be given only prospective effect.

In Stovall the Court held that the new standards laid down in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967)--that the Sixth Amendment requires exclusion of identification evidence tainted by Exhibiting the accused to identifying witnesses before trial in the absence of his counsel--should be given only prospective effect. The purpose to be served by the Wade and Gilbert rules, as described in the Stovall opinion, was:

'The presence of counsel will significantly promote fairness at the confrontation and a full hearing at trial on the issue of identification. We have, therefore, concluded that the confrontation is a 'critical stage,' and that counsel is required at all confrontations.' 388 U.S. at 298, 87 S.Ct. at 1971, 18 L.Ed.2d at 1204 (1967).

The Gault rules also have the purpose of promoting full and fair hearings.

In concluding that the intended purpose of the Wade and Gilbert rules would be better served by giving them only prospective application, the Court said in Stovall:

'It must be recognized, however, that, unlike cases in which counsel is absent at trial or on appeal, it may confidently be assumed that confrontations for identification can be and often have been conducted in the absence of counsel with scrupulous fairness and without prejudice to the accused at trial.' Id. 388 at 299, 87 S.Ct. at 1971, 18 L.Ed.2d at 1204.

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