Grogg v. Com.
| Citation | 6 Va.App. 598,371 S.E.2d 549 |
| Decision Date | 16 August 1988 |
| Docket Number | No. 0516-86-4,0516-86-4 |
| Court | Court of Appeals of Virginia |
| Parties | Thomas Lynn GROGG v. COMMONWEALTH of Virginia. Record |
William B. Reichhardt, Springfield, (Hall, Surovell, Jackson, & Colten, P.C., Fairfax, on brief), for appellant.
David A. Rosenberg, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., Margaret Poles Spencer, Asst. Atty. Gen., on brief), for appellee.
Before KOONTZ, C.J., and BAKER and HODGES, JJ.
Thomas Lynn Grogg, a minor, was convicted in a jury trial of first degree murder and use of a firearm in the commission of murder. The trial court sentenced Grogg to forty years and two years, respectively, for these offenses. Grogg raises the following issues on appeal: (1) whether the circuit court conducted a de novo hearing of the juvenile court order that transferred jurisdiction to the circuit court; (2) whether a juvenile tried and convicted as an adult has an appeal of right to the Court of Appeals of Virginia; (3) whether Grogg was denied effective assistance of counsel during the pre-trial stages of this case in Florida 1; and (4) whether Grogg's inculpatory confession given to Virginia police officers during his detention in Florida should have been suppressed. For the reasons that follow, we affirm Grogg's convictions.
Grogg was initially arrested on October 26, 1985, in Sarasota, Florida. The Sarasota police were alerted by teletype report of an outstanding Virginia warrant charging Grogg with grand larceny of an automobile. At that time, Grogg was nine days shy of his sixteenth birthday. A Florida detention petition, dated October 27, 1985, indicated that Grogg was taken into custody at 8:50 p.m. on Saturday, October 26, 1985, that he was alleged to be delinquent because he was a fugitive from justice wanted for grand larceny, and that no parent or adult relative was available to provide proper care. A Florida judge signed the petition and ordered that Grogg be placed in jail. Within forty-eight hours of his arrest, Grogg executed a waiver of extradition and was returned to Virginia.
Joseph A. Hughes, an officer with the Fairfax County Police Department, testified that the arresting officer in Florida advised Grogg of his constitutional rights as mandated by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that Grogg gave a statement to the Florida police officer. The arresting officer advised Grogg of his rights at the time of arrest, and also three hours later, prior to the time Grogg gave a statement to the officer. This statement was not entered into evidence. An attorney from the public defender's office was appointed to represent Grogg on the morning of Sunday, October 27, 1985. The public defender, John Jabro, testified that he went to the jail at approximately 8:00 a.m. to interview all the prisoners arrested during the previous twenty-four hour period, including Grogg. These prisoners were to attend an "advisory proceeding" before a Florida Circuit Court judge.
Jabro met briefly with Grogg prior to the advisory proceeding. Jabro testified he was "startled" to learn that Grogg was being held in an adult facility and that he was attending an adult proceeding, although he conceded that some allowance may be made for juveniles to be held in adult facilities. At the advisory proceeding, Jabro represented approximately fifteen to eighteen adults. Under Florida law, the advisory proceeding is the first appearance of a person who has been unable to extricate himself from jail by posting bond. The court essentially examines the crime for which the person is charged, examines the bond set, informs the defendant of his fifth amendment rights and the charges against him, and decides whether to set bond, modify bond or release the prisoner on his own recognizance. See Rules 3.130 and 3.131, Fla.R.Crim.P.
Jabro spoke with Grogg "just a matter of moments." He stated Grogg was "rather unresponsive." At first, Jabro thought Grogg was being uncooperative, but after conversing further, Jabro testified that Grogg appeared to be "dazed." Jabro advised Grogg that he was being charged as a fugitive from justice, that he would be involved in an extradition proceeding, that he should not speak to anyone but his attorney, and that an attorney would probably be appointed to represent him when he returned to Fairfax County. When Jabro told Grogg not to speak with anyone, Grogg responded, "I already have," apparently referring to his prior statement to the Florida police officer. Jabro did not give Grogg a business card or leave him his name and phone number.
Grogg was brought into court with the adult prisoners and the Florida judge read all of the prisoners their fifth amendment rights simultaneously. The prisoners then individually walked to a podium and signed a form indicating that an advisory hearing had been conducted, and that the judge had read them their rights. No individual colloquy occurred between the trial judge and Grogg. 2 When Grogg was called by the court, he walked to the podium and signed the sheet as instructed. After the hearing was concluded, Grogg was returned to his cell. Jabro did not see or speak with Grogg until October 28, when the extradition hearing occurred. Jabro represented Grogg at that hearing.
On October 28, 1985, prior to the extradition hearing, Officer Hughes, accompanied by Officer Pfeiff, went to the Sarasota County jail to question Grogg. Hughes contacted Sargeant Jack Vinna of the Sarasota Police Department about talking with Grogg. Hughes testified that Sargeant Vinna contacted juvenile authorities to obtain permission for Hughes to talk with Grogg. In addition to the two Fairfax officers, an officer of the Sarasota Police was present. Grogg's attorney was not present, nor was he advised that the officers were conducting the interview. The officers advised Grogg of his Miranda rights at 10:26 a.m. The warning and consent form indicated that the officers were investigating a homicide. Grogg signed the waiver and consent form which indicated that he could read and write, was not under the influence of drugs or alcohol, and that he had a seventh grade education. The colloquy which occurred between Officer Hughes and Grogg involved Hughes reciting the questions on the form and Grogg answering yes to the questions. Hughes first asked a series of questions and took notes. The officers conducted a second interview at 11:18 a.m. during which they tape recorded the statement. The interview ended at 11:40 a.m. At the beginning of the statement, the following conversation took place:
Officer Hughes: Prior to this taped statement, I advised you of your constitutional rights which were read from the form. Did you understand those rights?
Grogg: Yes.
Officer Hughes: Do you still understand those rights?
Grogg: Yes.
Officer Hughes: All right, did you choose to speak to us freely?
Grogg: Yes.
Officer Hughes: There were no threats or promises made to you?
Grogg: No.
Grogg then confessed to his involvement in the crime. Grogg's motion to suppress the inculpatory statement was denied by the trial court.
Grogg contends that the circuit court failed to conduct a de novo hearing of the juvenile court order that transferred jurisdiction to the circuit court. He specifically argues that the court erred when it relied upon transcripts and written records from the juvenile court to determine that probable cause existed to believe that Grogg committed the act alleged. Based upon our careful review of the transcript of the transfer hearing in the circuit court, we conclude that the circuit court in fact conducted a de novo hearing and made an independent determination that Grogg should be transferred for criminal proceedings in that court. Furthermore, we hold that a de novo hearing was proper.
Code § 16.1-269 embodies the statutory scheme for transferring jurisdiction from the juvenile court to the circuit court in those cases in which a child fifteen or more years of age is alleged to have committed an offense that would be a felony if committed by an adult and the juvenile court decides the child is not amenable to treatment or rehabilitation as a juvenile. The authority of the juvenile court either to retain jurisdiction or to transfer jurisdiction in serious cases protects the interests of both the child and the public. Code § 16.1-269(E) permits a review by the circuit court of a decision by the juvenile court to retain jurisdiction in certain cases in which the Commonwealth's Attorney deems it in the public interest. The circuit court upon proper hearing may sustain the decision of the juvenile court or permit the Commonwealth's Attorney to seek an indictment. Significantly, this statute does not address an appeal by the child from a decision of the juvenile court to transfer jurisdiction to the circuit court.
The juvenile court's decision to transfer jurisdiction to the circuit court is a judgment affecting the interests of the child. Code § 16.1-296 provides in pertinent part: "From any final order or judgment of the juvenile court affecting the rights or interests of any person coming within its jurisdiction, an appeal may be taken in accordance with the provisions of Chapter 7 (§ 16.1-123.1 et seq.) of Title 16.1." Code § 16.1-136 provides in pertinent part: "Any appeal taken under the provisions of this chapter [Chapter 7] shall be heard de novo in the appellate court...." Thus, we agree with Grogg that a circuit court must conduct a de novo hearing when considering an appeal of a child from a decision of the juvenile court to transfer jurisdiction to the circuit court for the purpose of trying the child as an adult in a criminal proceeding.
"A de novo hearing means a trial anew, with the burden of proof remaining on the party with whom it rested in the juvenile court." Box v. Talley, 1 Va.App. 289, 292, 338 S.E.2d 349, 351 (1986). " ...
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