In re EJP

• Decision Date: 03 February 1999
• Docket Number: No. A99A0504.,A99A0504.
• Citation: 236 Ga. App. 221,511 S.E.2d 290
• Parties: In the Interest of E.J.P., a child.
• Court: Georgia Court of Appeals

511 S.E.2d 290

236 Ga. App. 221

In the Interest of E.J.P., a child.

No. A99A0504.

Court of Appeals of Georgia.

February 3, 1999.

Whitman M. Dodge, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.

ELDRIDGE, Judge.

Sixteen-year-old E.J.P. challenges his September 1998 transfer from Fulton County Juvenile Court to the Superior Court. We affirm.

According to the allegations underlying the juvenile court's delinquency petition, the appellant was visiting the apartment of an acquaintance in the early morning hours of August 24, 1997. In addition to the appellant, who was fifteen years old at the time, at least five children and two adults were present in the apartment. Suddenly, the appellant produced several knives and a handgun. After threatening those present, the appellant shot both adults and three of the children in the head, neck, and/or upper extremities; all of the victims suffered life-threatening, disfiguring injuries. The remaining child escaped out of a bedroom window and called the police. The appellant left the apartment and went to the home of a friend, where he was apprehended the same day. The appellant was charged with delinquency in Fulton County Juvenile Court on the basis of, inter alia, five counts of aggravated battery.

On August 29, 1997, the State moved the juvenile court to transfer the case to the Fulton County Superior Court. A few days later, the juvenile court ordered that the appellant be transported for psychiatric evaluation and treatment. The examining psychologist diagnosed the appellant as suffering from symptoms of schizophrenia, including hallucinations and delusions.

On January 6, 1998, pursuant to a defense motion, the trial court ordered the Georgia Department of Human Resources Division of Mental Health, Mental Retardation, & Substance Abuse ("DHR") to conduct an ex parte, confidential, psychological evaluation of the appellant to determine (1) his present competence to stand trial and (2) whether he was suffering from a "delusional compulsion" at the time of the alleged offenses. See OCGA §§ 16-3-3;¹ 37-2-2.1. The DHR responded to the order by showing that, as long as the juvenile court had jurisdiction over a case, Georgia's criminal code did not authorize the agency to provide for an evaluation as to whether the juvenile was acting under a delusional compulsion at the time of the incident underlying the juvenile petition. Based on this information, the juvenile court amended its order directing DHR to conduct the psychological evaluation to include only an evaluation as to present competence. Further, the juvenile court ruled that the appellant was not entitled to present the affirmative defense of delusional compulsion during an adjudicatory hearing in juvenile court. Pursuant to the juvenile court's order, DHR arranged an evaluation as to the appellant's present competence, and the results were presented and discussed during the bind-over hearing on May 21, 1998.

Based upon the evidence presented during the hearing, the trial court transferred the case to the Fulton County Superior Court. This appeal was timely filed. Held:

1. As a preliminary matter, we note that the appellant did not challenge the evidentiary basis of the transfer of his case from juvenile court to the superior court. However, since he alleges that his constitutional rights were violated when he was precluded from raising an affirmative defense during the transfer hearing, an overview of the transfer procedure is necessary.

Under OCGA § 15-11-39(a), "after a petition has been filed alleging delinquency based on conduct which is designated a crime or public offense under the laws, ... the [juvenile] court before hearing the petition on its merits may transfer the offense for prosecution to the appropriate court having jurisdiction of the offense." (Emphasis supplied.) For the transfer to take place, the child must have been at least 15 years of age at the time of the alleged delinquent conduct. OCGA § 15-11-39(a)(4). Prior to the transfer, the juvenile court must conduct a hearing and give notice to the child and his legal guardians. OCGA § 15-11-39(a)(1), (2); see also R.S. v. State of Ga., 156 Ga.App. 460, 461(1), 274 S.E.2d 810 (1980). Pursuant to such hearing, the juvenile court may, in its discretion, transfer such offense if the State presents competent evidence from which the court "determines there are reasonable grounds to believe that: (A) [t]he child committed the delinquent act alleged; (B) [t]he child is not committable to an institution for the mentally retarded or mentally ill;² and (C) [t]he interests of the child and the community require that the child be placed under legal restraint and the transfer be made." OCGA § 15-11-39(a)(3)(A)-(C). See also In re C.R., 264 Ga. 215, 442 S.E.2d 737 (1994); In the Interest of J. H., 260 Ga. 447, 449-450(1), (4), 396 S.E.2d 885 (1990); State v. M. M., 259 Ga. 637, 386 S.E.2d 35 (1989); In the Interest of A. F., 214 Ga.App. 440, 441-442(2), 448 S.E.2d 11 (1994). "Determinations of a juvenile court made on an exercise of discretion, if based upon evidence, will not be controlled by this [C]ourt. [Cits.]" In the Interest of L. L., 165 Ga.App. 49, 50, 299 S.E.2d 53 (1983).

In this case, the juvenile court fulfilled all of the procedural requirements for a proper transfer. Evidence was presented as to each transfer requirement, and the juvenile court ruled that such evidence justified transfer. Accordingly, the only remaining issue in this appeal is whether the appellant was improperly denied the opportunity to present additional evidence during the transfer hearing.

2. The appellant asserts that the juvenile court violated his constitutional rights to due process and equal protection when it ruled that the appellant was not entitled to assert the affirmative defense of delusional compulsion³ during a transfer or adjudicatory hearing in juvenile court.

In this case, the order that was the basis for this appeal decided only whether the juvenile court should transfer the case to the superior court; there was no adjudication of the case on the merits. Contrary to the appellant's assertions, the consideration of his affirmative defense in reaching a conclusive determination of whether the actor intended to commit the criminal act goes to the merits of the case and is not an issue during the juvenile court's consideration of whether to transfer the case. See Division 1, supra; OCGA § 15-11-39(a)(3)(A). If such determination of the merits of the case was required prior to effecting a transfer, the need for such transfer would be lost.

Further, to the extent that a consideration of the appellant's need for future psychiatric treatment might influence the determination of whether a transfer would be in the appellant's best interest, see OCGA § 15-11-39(a)(3)(C), the determination of whether the appellant was...