Gerrick v. State

• Citation: 451 N.E.2d 327
• Decision Date: 27 July 1983
• Docket Number: No. 481S105,481S105
• Parties: Chance D. GERRICK, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 327

451 N.E.2d 327

Chance D. GERRICK, Appellant, v. STATE of Indiana, Appellee.

No. 481S105.

Supreme Court of Indiana.

July 27, 1983.

Susan K. Carpenter, Public Defender, Jay R. Rodia, Deputy Public Defender, Carolyn Fitch, Research Asst., Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Chief Justice.

Appellant, a juvenile, was arrested and placed in detention in the Ripley County Jail. Thereafter the Ripley Circuit Court, sitting as a juvenile court, waived its jurisdiction in the matter. The two-count information was filed in Ripley Circuit Court charging appellant with one count of Murder and one count of Robbery. After a change of venue appellant was tried before a jury in Jefferson Circuit Court and found guilty on both counts. He was sentenced to a forty year term of imprisonment.

The facts are these. At about 8:30 A.M. on March 12, 1980, Buzz Lohrum, owner of a service station situated on U.S. Highway 50 in Elrod, was in the back room of the station with Noah Risinger, a cousin who worked the station with him. The pair heard the bells ring that indicated a vehicle had just pulled into the station for service, and Risinger went outside to wait on the customer. Shortly thereafter Lohrum heard what he thought sounded like gunshots and heard a faint voice calling his name. He emerged to find Risinger lying on the ground near the front door of the station. Risinger managed to communicate to Lohrum that he had written the license plate number of a van from which an assailant had emerged on a piece of paper in his shirt pocket. Lohrum took the paper and called police who began an immediate search for a vehicle matching the description they had been given. Risinger later died of two gunshot wounds to the back.

Indiana State Trooper Jesse Westmeyer spotted a van heading west on Highway 50 matching this description as he and Ripley County Sheriff Ken Lovins were driving east on the highway from Versailles to Elrod. They turned around and pursued the van. Westmeyer testified he saw the van stop, whereupon he observed a black male jump from the passenger door and hide behind a nearby house trailer. The officers went to the trailer, and appellant was apprehended. A .22 caliber revolver with two spent rounds was taken from appellant by Lovins.

As he was being handcuffed, appellant blurted out, "I didn't shoot the dude. Jesse Smith did." Subsequent police investigation showed there was a Jesse Smith living in Cincinnati who was charged with a drug offense in the Cincinnati court system, but the person of this nor any other "Jesse Smith" was apparently never seized or questioned in connection with this offense. Cellmates of appellant in the Ripley County Jail testified appellant told them he had picked up a hitchhiker while driving from Dayton, Ohio, into Indiana and that this man was the one who committed the charged crimes. Both testified appellant told them the hitchhiker forced appellant to let him out of the van shortly before he was apprehended.

Several witnesses testified as to their observations of a van traveling west on Highway 50 between 8:30 and 9:00 A.M. on March 12, 1980. They testified the van matched the description of the van Trooper Westmeyer and Sheriff Lovins followed and later saw appellant emerge from. All but one were able to state the van was being driven by a young black male and that they saw no one else in the vehicle. One witness was able to identify appellant in court as the driver of the van. Another witness testified that as she drove past the service station she saw a black male pumping gas into a van and saw a white man coming from the back of the station toward the van. Another witness testified he lived along Highway 50 in Versailles and that at near 9:00 A.M. he saw a van parked in his barnyard with appellant standing near it. He testified appellant told him he had to relieve himself in some nearby woods and apologized for driving into the man's yard. The witness testified he then showed appellant how to drive out of the yard.

A state police technician who conducted ballistics tests on the revolver taken from appellant testified he was unable to say the .22 caliber revolver was the murder weapon due to the poor quality of the gun and the mutilation of the bullet fragments taken from the decedent's body to which he attempted to match test bullets fired from the gun.

Appellant contends there is insufficient evidence in the record as presented in the waiver hearing, held April 9, 1980, in support of the juvenile court's finding that "the safety and welfare of the community ... require that Chance D. Gerrick not remain in the juvenile justice system and further require that juvenile jurisdiction be waived ...." He points out under I.C. Sec. 31-6-2-4(c) and (d) the decision whether to retain juvenile jurisdiction or waive a juvenile into a court with criminal jurisdiction over adults requires a balancing of the best interests of the child against the safety and general welfare interests of society. He asserts given the testimony in the waiver hearing by two witnesses that in their opinion it was in his best interests that he be retained in the juvenile system, the court erred in finding that jurisdiction should be waived.

It has been held the waiver order in such a case must not merely recite statutory language. Support in reason and fact for waiver must appear in either the face of the waiver order or in the record of the waiver hearing. In the Matter of Tacy, (1981) Ind.App., 427 N.E.2d 919. See also Strosnider v. State, (1981) Ind.App., 422 N.E.2d 1325. Also, a presumption in favor of waiver operates under I.C. Sec. 31-6-2-4(c) when the juvenile is charged with what would be murder if committed by an adult. Trotter v. State, (1981) Ind., 429 N.E.2d 637. The juvenile court in holding the waiver hearing is not compelled to give overriding weight to testimony that supports a finding the juvenile should remain in the juvenile system. Id. We will reverse the juvenile court's determination only for abuse of discretion. Id.

We find factual support for the court's waiver order in both the record of the waiver hearing and on the face of the waiver order itself. The evidence adduced in the waiver hearing showed appellant had committed several crimes in Ohio and had been taken into the juvenile system there. The evidence tended to show this had not prevented appellant from traveling to Indiana on the morning of March 12, 1980, and murdering Noah Risinger while perpetrating a robbery. This is reflected also on the face of the waiver order in the court's finding. The court was not required to accept as dispositive of the issue the statement of opinion of any witness that it was in appellant's best interests that he not be waived into adult court. Trotter, supra.

In a related claim as to sufficiency of the evidence in support of waiver, appellant claims the juvenile court's decision cannot stand because of the State's failure to present evidence that the dispositional alternatives available within the juvenile system were inadequate.

We do not agree. The State's offering of evidence to show the welfare and safety of society require waiving appellant into the adult criminal justice system inherently tended to rebut whatever evidence appellant offered with regard to the desirability of retaining him in the juvenile system. It is for the juvenile court judge, weighing the effect and result of following one alternative against the other, to determine which is the more desirable alternative.

We hold there was no abuse of discretion in this case in reaching a determination that appellant should be waived into the adult criminal justice system.

Appellant claims error in regard to the waiver procedure used in this case in that the State was not required to present any evidence as to the requirement of I.C. Sec. 31-6-2-4(c)(2) that the court must find probable cause to believe the child has committed an act chargeable as a murder if committed by an adult.

Appellant's contention is the trial court erred when he "incorporated by reference" his finding of March 18, 1980, that there was probable cause to believe appellant murdered Noah Risinger and also committed a robbery. This finding was based on the evidence adduced in the March 13, 1980, hearing in juvenile court to determine whether to continue appellant's detention after his arrest the day before.

It can be fairly concluded from a reading of several statutes that following the arrest of a juvenile on the basis of a probable cause belief that he has committed murder or what would be a Class A or B felony if committed by an adult, see I.C. Sec. 31-6-4-4(b) [Burns 1980 Repl.]; there is to be a preliminary inquiry by the intake officer of the juvenile court, see I.C. Sec. 31-6-4-7 [Burns 1980 Repl.]; a request by the prosecutor to the court for authorization to file a petition alleging delinquency, see I.C. Sec. 31-6-4-9(a) [Burns 1980 Repl.]; a determination on whether to continue the juvenile's detention, see I.C. Sec. 31-6-4-5 [Burns 1980 Repl.]; an order of the court authorizing the filing of a petition following a hearing on that issue alone, see I.C. Sec. 31-6-4-9 [Burns 1980 Repl.]; the filing of the petition itself by the prosecutor; and another hearing on the matter of whether or not the child is delinquent, see I.C. Sec. 31-6-4-13 [Burns 1980 Repl.]. All this precedes the holding of the hearing to determine whether to waive the juvenile into the adult criminal justice system under I.C. Sec. 31-6-2-4. There is a probable cause showing required at these proceedings. In I.C. Sec. 31-6-4-9(b) governing the prosecutor's request for authorization to file a petition alleging delinquency, we find: "The juvenile court shall consider the preliminary inquiry and the evidence of probable cause. The court shall authorize the filing of the...