Ex parte J.D.G.

• Decision Date: 21 August 1992
• Citation: 604 So.2d 378
• Parties: Ex parte J.D.G. (Re J.D.G. v. STATE). 1910652.
• Court: Alabama Supreme Court

Page 378

604 So.2d 378

Ex parte J.D.G. (Re J.D.G. v. STATE).

1910652.

Supreme Court of Alabama.

Aug. 21, 1992.

Petition for writ of Certiorari to the Court of Criminal Appeals (CR 90-1259). Appeal from the Mobile Circuit Court, No. JU-91-1093.01, John F. Butler, Judge.

Barry Hess, Mobile, for petitioner.

James H. Evans, Atty. Gen., and Yvonne A.H. Saxon, Asst. Atty. Gen., for respondent.

PER CURIAM.

Writ quashed as improvidently granted.

HORNSBY, C.J., and MADDOX, ALMON, SHORES, STEAGALL and INGRAM, JJ., concur.

ADAMS, HOUSTON and KENNEDY, JJ., dissent.

KENNEDY, Justice (dissenting).

This Court granted certiorari review in order to determine whether the Court of Criminal Appeals correctly affirmed the juvenile court's order transferring the defendant to the circuit court to stand trial as an adult. ¹

J.D.G. was 14 years old when he was arrested for the offense of murder in violation of § 13A-6-2, Ala.Code 1975. Following a transfer hearing, J.D.G. was transferred from the juvenile court to the circuit court pursuant to § 12-15-34(d), Ala.Code 1975. The Court of Criminal Appeals affirmed the transfer by an unpublished memorandum opinion, and we granted certiorari review.

The 18-year-old victim, Matt Hall, was at the Motel 6 on May 3, 1991, in Mobile, Alabama, with some of his friends from Theodore High School. Hall and his friends had rented a motel room there and were having a party in the room. There were alcoholic beverages at the party. Hall and another friend, Brian Spann, drove to the motel office to rent another room but decided not to rent the extra room. Both Hall and Spann had been drinking alcohol.

Spann, age 17, testified at the transfer hearing that on the way back to their room, he and Hall passed an automobile parked in the parking lot. There was some yelling back and forth between Hall and the passengers in the automobile. J.D.G. was a passenger in the car when he was approached by Hall and Spann. Hall told Spann to go to the room and get some help in case there was a fight between Hall and the passengers in the car.

Spann stated that he returned to the parking lot with several other people. The car was parked and Spann saw Hall leaning into the car talking to the passengers. Spann stated that he saw Hall raise his hand and turn around. At this point, Spann said he heard a gunshot and saw Hall fall to the ground.

Tony Lassiter, age 19, was also in the parking lot when the shooting occurred. Lassiter had been drinking. Lassiter stated that Spann came into the motel room and said that Hall was about to be in a fight. Lassiter said he ran out the door, into the parking lot, and up to Hall; he said Hall and Lassiter were walking in a westerly direction when he saw a car driving through the parking lot, but he said that the car did not stop. Lassiter said that he was walking in front of Hall and that as the car passed them, Hall looked into the car at the person in the front passenger seat. Lassiter stated that the car passed him, made a quarter turn, and stopped near Hall. Lassiter said he saw Hall's hand enter the car window. He stated that he then saw Hall's hand come out of the window. Lassiter stated that he saw Hall make a quarter turn. He said that the passenger extended his hand out of the window and fired the gun at Hall.

Chad Hunter, age 18, said he had left the party in the motel room and was walking to the motel parking lot when a car appeared. Hunter said he saw Hall point his hand at the car, but he said he could not see if Hall put his hand inside the car. Hunter also stated that Hall had previously been involved in fights.

Michael James Britt, age 17, testified that he drove the car in which J.D.G. was a passenger on the night the shooting occurred. He stated that they went to Motel 6 in order to wait for a man to rent some rooms for them to have a party. While Britt and J.D.G. were outside near the front office, Britt stated, a red car passed them and one of the passengers made a remark to them. Britt stated that he and J.D.G. drove to where a group of people had gathered. He testified that some of the people had been "calling him and J.D.G. names." Britt stated that they were driving by very slowly when Hall reached his hand inside Britt's car and hit J.D.G. in the face. Britt stated that J.D.G. then fired the gun at Hall. He stated that he and J.D.G. went to the police station the next day.

Reecie Powell, a juvenile probation officer, testified that she evaluated J.D.G., as was mandated by the juvenile court. She recommended that J.D.G. be transferred for trial as an adult. The prosecutor asked Powell if her recommendation was based on the entire list of factors in § 12-15-34 or whether her recommendation was based solely on the nature of the offense. Powell stated in pertinent part:

"Powell: The nature of the offense.

"Prosecutor: Did you consider the other statutorily mandated guidelines?

"Powell: As peripheral, but not as major--

"Prosecutor: All right, I'm not asking--what weight you attached to any of this, but--

"....

"Prosecutor: "--My question is, did you consider the totality of 12-15-34(e)?

"Powell: Yes; there would be no need to do it, if I did not."

(R.T. 103.)

Powell stated that J.D.G. had no prior record and that J.D.G. appeared to be physically and mentally normal for a 14-year-old. She stated that she also considered J.D.G.'s demeanor. Powell stated that the basis of her decision that J.D.G. should be transferred was "the extent of the crime." (R.T. 105.)

A psychological examiner, Larry Faison, testified that J.D.G. was on the high-average level of intelligence. Faison stated that J.D.G.'s psychological and emotional development were somewhat pre-adolescent and that J.D.G. had poor impulse control. However, Faison stated that he found no grounds to have J.D.G. committed to a mental health facility.

Several witnesses testified on J.D.G.'s behalf, stating that he was a fine young man and that they felt he should be treated as a juvenile. I note that the record before the trial court contained several letters from J.D.G.'s teachers describing J.D.G. as a "valuable addition" to his school. (C.R. 51.) J.D.G.'s pastor stated in a letter to the court that J.D.G. was "fairly regular" in church attendance and that he always "conducted himself in a very fine manner." (C.R. 52.) One of J.D.G.'s teachers stated, "I have nothing but praise for [J.D.G.] as a student. A teacher could not ask for a more perfect student." (C.R. 55.)

At the close of the transfer hearing, the trial court transferred J.D.G. to the circuit court. The trial court described this case:

"A tragedy; it's one of the worse tragedies that I have ever observed. There was two personalities that met--one aggressive [Hall], one with low impulse control [J.D.G.]; the combination of drinking, guns and unsupervision. It is a tragedy for all. Nobody should rejoice in any decision of this Court. I have reviewed all [of § ] 12-15-34, all of the factors, the nature of the present offense, the extent of his prior delinquency record, which is none; the nature of past treatment efforts, his response, which are none, his demeanor; the extent and nature of his physical and mental maturity, and the interest of the community and of the child requiring that the child be placed under legal restraint or discipline. This Court finds no reason to believe that he is mentally retarded or committable to an institution for the mentally ill in any way. This Court finds the prevailing nature of the offense to be so heavy that the case should be tried as an adult...."

(R.T. 172-73.)

The trial court's order read in pertinent part:

"On May 28, 1991, the motion to transfer for criminal prosecution of Case Number JU-91-1093.01, alleging Murder, came on for hearing pursuant to § 12-15-34 of the Code of Alabama.... The Court received testimony ore tenus, and the Court received and considered the probation officer's report pursuant to § 12-15-34(e), and the psychological evaluation report, and other evidence, and the Court considering the testimony, the probation officer's report, and consideration of commitment of the Juvenile to an institution or agency for the mentally retarded or mentally ill, and considering all aspects as required to be considered under such motion under § 12-15-34(d), specifically:

"1. The nature of the alleged offense;

"2. The extent and nature of the juvenile's prior delinquency record.

"3. The nature of past treatment efforts and the nature of the juvenile's response to such efforts.

"4. The juvenile's demeanor;

"5. The extent and nature of the juvenile's physical and mental maturity; and

"6. The interests of the community and of the juvenile requiring that the juvenile be placed under legal restraint or discipline.

"It was the finding of the Court, that:

"1. Probable cause exists that the offense of Murder was committed as alleged, and that said juvenile committed said offense.

"2. The said juvenile was fourteen (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--Murder--if committed by an adult.

"3. The Court finds no grounds to believe that said juvenile is committable to an institution or agency for the mentally retarded or mentally ill.

"4. Said juvenile is physically mature and has sufficient mental maturity for a person of his age.

"5. Said juvenile has no prior delinquency record.

"6. There have been no prior treatment efforts for J.D.G. in this Court.

"7. It is in the best interest of the public and the community that the motion of the District Attorney and the Assistant District Attorney to transfer Case Number JU-91-1093.01, for criminal prosecution as an adult, be granted...."

(C.R. 20-21.)

At the outset, I note that the juvenile court system is a creation of the Legislature. § 12-15-2, Ala.Code 1975. The Legislature granted the juvenile courts the full power and authority to...