Dugan, In Interest of

• Decision Date: 18 May 1983
• Docket Number: No. 68390,68390
• Citation: 334 N.W.2d 300
• Parties: In the Interest of Terry Allan DUGAN, A Child, Appellant.
• Court: Iowa Supreme Court

Page 300

334 N.W.2d 300

In the Interest of Terry Allan DUGAN, A Child, Appellant.

No. 68390.

Supreme Court of Iowa.

May 18, 1983.

Larry F. Woods, Oelwein, for appellant.

Thomas J. Miller, Atty. Gen., Brent D. Hege, Asst. Atty. Gen., and John W. Hofmeyer, III, Asst. County Atty., for appellee, the State of Iowa.

Before REYNOLDSON, C.J., and UHLENHOPP, McGIVERIN, LARSON and SCHULTZ, JJ.

McGIVERIN, Justice.

This appeal arises from the juvenile court's adjudication that Terry Allan Dugan, a minor, committed the delinquent acts of second-degree burglary, Iowa Code §§ 713.1, .3, and second-degree theft, Iowa Code §§ 714.1(1), .2(2) (1981). The issues raised focus on (1) the extent of the "rehearing" before the juvenile judge provided by Iowa Code section 231.3 and (2) the rulings and findings of fact of the juvenile referee upon which the adjudication by the judge was based. We find no merit in the contentions raised by Dugan and affirm the adjudication that he committed the delinquent acts.

Although Dugan has had several run-ins with the law, this appeal arises from the burglary of the Jack Kice home in Oelwein on May 24, 1981. On May 23, two juveniles other than Dugan broke into the Kice residence. The Kices were out of town. The following evening Dugan and Brett Masek, one of the youths who had entered the residence the previous night, returned and entered the home through a door which had been unlocked the night before. They proceeded from room to room stuffing plastic garbage bags with various items, including a portable T.V., guns, silver dollars and foreign coins, which they took with them when they left the Kice residence. Kices had not consented to the entry or taking.

The State filed a petition in juvenile court within the district court alleging that Dugan had committed the delinquent acts of second-degree burglary and second-degree theft. The case was heard in the first instance by the juvenile referee. Iowa Code § 231.3.

Masek testified at Dugan's delinquency hearing regarding the burglary and theft. The referee found that Masek's testimony was sufficiently corroborated by the evidence of Richie Woods, who testified that Dugan and Masek had asked to store a T.V. in a plastic sack in his parents' shed.

The referee's findings of fact indicated that Dugan had violated Iowa Code sections 714.1(1) and 714.2(2) (second-degree theft by taking) and sections 713.1 and 713.3 (second-degree burglary). The juvenile court judge adopted the referee's findings of fact and adjudicated Dugan to have committed the two delinquent acts. Iowa Code § 231.3.

Dugan requested a rehearing and asserted that the "rehearing" provided in section 231.3 is required to be de novo rather than on the record made before the referee. At the time set for rehearing, the juvenile court judge reviewed the electronic recording tapes, Iowa Code § 232.94, of the record made before the juvenile referee and heard legal arguments. No additional evidence was admitted and the juvenile court ruled that the previous delinquency adjudication based on the referee's findings of fact was correct and supported by the record.

Dugan appeals. We review the findings of fact de novo. In the Interest of Wheeler, 229 N.W.2d 241, 243 (Iowa 1975).

I. "Rehearing." The initial issue before us is a matter of statutory construction. Dugan urges us to construe section 231.3 as requiring a de novo rehearing with evidence taken anew before the juvenile judge after the initial hearing before the referee. Among other qualifications, section 231.3 requires that the referee be a licensed attorney. Section 231.3 further provides in pertinent part:

The parties to a proceeding heard before the referee shall be entitled to a rehearing by the judge of the juvenile court if requested within seven days after receiving notice of the findings of fact of the referee....

The State says that a de novo rehearing would create double jeopardy problems, but Dugan contends that since he is the one requesting that the rehearing be de novo, no double jeopardy issues arise. In a narrow sense he is correct. There is no double jeopardy when the juvenile who excepts to the findings of a referee is given a de novo rehearing by a juvenile judge. Swisher v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705 (1978) (construing rule 911 of Maryland's Rules of Procedure). On the other hand, if the State is given a de novo rehearing when it excepts to the referee's findings of facts, such a hearing results in double jeopardy to the juvenile, because the prosecution is given that forbidden "second crack." Id. at 215-16, 98 S.Ct. at 2706, 57 L.Ed.2d at 715.

With these principles in mind, we conclude that the legislature intended the rehearing provided in section 231.3 be a rehearing on the record made before the referee. This conclusion is mandated by the wording of the statute and the presumption that a statute is intended to be constitutional. Iowa Code § 4.4.

Unlike the Maryland rule which differentiates between the type of rehearing afforded a juvenile and the type afforded the prosecutor, ¹ section 231.3 provides that the parties to a proceeding before the referee shall be entitled to a rehearing." (Emphasis added.) No attempt has been made in the statute to distinguish the rehearing requested by the juvenile from that requested by the State. We, therefore, conclude that the rehearing before the juvenile court is intended by the legislature to be the same type of proceeding regardless of who requested it.

Consequently, section 231.3 is constitutional only if the "rehearing" is a rehearing on the record made before the referee. If we were to adopt Dugan's contrary construction of the word "rehearing," the prosecution would be given the forbidden "second crack" and the statute would be rendered unconstitutional. Swisher, 438 U.S. at 215-16, 98 S.Ct. at 2706, 57 L.Ed.2d at 715. As a result, we presume that in providing the same type of rehearing for all parties, the legislature intended that the rehearing be on the evidentiary record made before the referee, who is a licensed attorney with qualifications similar to the juvenile judge.

The remainder of the issues raised by Dugan deal with the rulings and findings of fact upon which the adjudication as to the commission of delinquent acts was based.

II. Corroborative evidence. The State agrees with Dugan that in juvenile delinquency proceedings the testimony of an accomplice must be corroborated. The point of contention is whether the State introduced sufficient evidence to satisfy Iowa R.Crim.P. 20(3) ("A conviction cannot be had upon the testimony of an accomplice ... unless corroborated by other evidence which shall tend to connect the defendant with the commission of the offense....").

We address the applicability of rule 20(3) before considering the merits of Dugan's argument. Based on In the Interest of Harrell, 309 N.W.2d 896 (Iowa Ct.App.1981), the parties say that rule 20(3) is a rule of evidence and therefore is applicable to juvenile delinquency proceedings by virtue of Iowa Code section 232.47(5).

Section 232.47(5) provides:

Only evidence which is admissible under the rules of evidence applicable to the trial of criminal cases shall be admitted at the hearing except as otherwise provided by this section.

This section clearly deals with the admissibility of evidence. Therefore, we conclude that the term "rules of evidence" is best construed as "[r]ules of court which govern the admissibility of evidence at trials and hearings; e.g. Federal Rules of Evidence...." Black's Law Dictionary 1197 (rev. 5th ed. 1979).

Rule 20(3) is not a rule governing the admissibility of evidence. It is a rule concerning the sufficiency of the evidence and is invoked not when the evidence is admitted at trial, but when the defendant moves for a judgment of acquittal. To the extent that Harrell concludes that rule 20(3) is a rule of evidence, it is not controlling.

A requirement like that in rule 20(3), however, must be a part of adjudicatory proceedings to determine delinquency. While it is not necessary that juvenile proceedings conform with all requirements of a criminal trial, the hearing must measure up to the essentials of due process and fair treatment. Kent v. United States, 383 U.S. 541, 562, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84, 97-98 (1966). We hold that the substance of the accomplice corroboration requirement of rule 20(3) must be satisfied when the court considers a motion to dismiss the juvenile petition under Iowa Code section 232.47(9). This is in accord with other states that have concluded that corroboration is necessary to ensure that juvenile proceedings comport with the essentials of due process and fair treatment. T.L.T. v. State, 133 Ga.App. 895, 899, 212 S.E.2d 650, 654 (1975) (corroboration of accomplice testimony in juvenile proceeding necessary "to give the accused the essence of a fair trial"); see also In the Matter of the Welfare of D.S., 306 N.W.2d 882, 883 (Minn.1981) (criminal statute requiring corroboration of accomplice testimony applies in juvenile cases); ____, A Minor v. Juvenile Department Fourth Judicial District Court, 96 Nev. 332, 333-34, 608 P.2d 509, 510, on rehearing 96 Nev. 485, 611 P.2d 624 (1980) (criminal procedure statute which requires corroboration of accomplice testimony applies to juvenile delinquency proceedings).

B. Masek's testimony was corroborated by ten-year-old Richie Woods. The issue, therefore, turns on the sufficiency of Richie's corroboration.

Richie corroborated the following: Dugan and Masek were together on the night in question; ² when Richie saw them together they had a T.V.; the T.V. was in a plastic garbage bag; they asked to leave it in Woods' shed; Masek told Richie it was his brother's video game; Richie determined it was a T.V. and would not let them put it in his parents' shed; and Masek and Dugan left the Woods residence still in possession of the T.V. Richie...