In re Interest of T.D.S.

• Decision Date: 26 October 2021
• Docket Number: ED 109317
• Parties: In the INTEREST OF: T.D.S., Jr.
• Court: Missouri Court of Appeals

643 S.W.3d 510

In the INTEREST OF: T.D.S., Jr.

No. ED 109317

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: October 26, 2021

Motion for Rehearing and/or Transfer to Supreme Court Denied December 6, 2021

Application for Transfer Denied May 17, 2022

FOR APPELLANT: Kristina S. Olson, Missouri Public Defender's Office, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101.

FOR RESPONDENT: James A. Michaels, Jr., 920 N. Vandeventer Ave., St. Louis, MO 63108, Lopa M. Blumenthal, St. Louis Circuit Attorney's Office, 1114 Market Street, Room 401, St. Louis, MO 63101.

Philip M. Hess, Presiding Judge

Introduction

T.D.S., Jr. ("Appellant") appeals the order of the Juvenile Division of the 22nd Circuit ("juvenile court") granting the Juvenile Office's motion to dismiss their petition and transfer Appellant's case from the juvenile court to a court of general jurisdiction.

Appellant raises two points on appeal. First, Appellant argues the juvenile court clearly erred and abused its discretion in admitting, over Appellant's objections, hearsay evidence through the testimony of deputy juvenile officer Jaunell Pugh. Second, Appellant argues the juvenile court clearly erred and abused its discretion in granting the Juvenile Office's petition to allow prosecution of Appellant as an adult under the totality of the circumstances.

Factual and Procedural Background

Appellant was seventeen when he was certified for prosecution as an adult for crimes committed when he was sixteen. On January 5, 2020, Appellant allegedly stole a vehicle at gunpoint and led police officers on a chase through St. Louis City into St. Louis County. Appellant was in the custody of the Juvenile Detention Center until March 30, 2020, when he was released under the conditions he meet at least weekly with the assigned deputy juvenile officer, remain in home detention with his mother under GPS monitoring; enroll in an appropriate alternative education program within two weeks or find suitable employment; have no contact with a named associate or the witnesses and victims of his alleged offenses; stay five hundred feet away from the Central West End neighborhood; and promptly notify the assigned deputy juvenile officer of any change of address or phone number or detention by law enforcement. The Juvenile Office filed a petition alleging Appellant violated his release by leaving home (when his mother's firearm went missing), failing to stay in touch with his juvenile officer, and contacting the named associate. The juvenile court issued an apprehension order. While that order was pending, Appellant was arrested for an unrelated offense and charged in adult court for assault, robbery, and armed criminal action.

On August 4, 2020, the Juvenile Officer moved to dismiss the petition to allow prosecution of Appellant under general law. The motion argued Appellant was not a proper subject of the juvenile code. The juvenile court held a certification hearing on September 21, 2020, in St. Louis City. Deputy Officer Pugh testified for the Juvenile Office. His report, prepared under section 211.071,¹ was admitted without objection. Over Appellant's hearsay objections, Pugh testified to the facts supporting his recommendation Appellant be certified as an adult, including his understanding of Appellant's criminal charges from the carjacking, his conversations with Appellant's mother regarding his academic performance and problems at home, and GPS records showing Appellant left home without permission.

On October 20, 2020, the juvenile court granted the Juvenile Office's motion to dismiss and transfer the matter to a court of general jurisdiction. The juvenile court found certification was appropriate because Appellant's felony robbery and resisting arrest charges demonstrated a need to protect the community. The court found Appellant's robbery "involved viciousness, force, and violence" and "an offense against the person." Because Appellant had been subject to five prior referrals and faced new charges reflecting "a high level of sophistication due to their complexity and high level of criminality," the court found him "beyond rehabilitation under the juvenile code." The court found Appellant demonstrated behavior and criminal aptitude not typically seen in juveniles and required treatment in a setting unavailable in the juvenile system.

Appellant was 17 years, 6 months at the time of the certification hearing. The court found rehabilitation in the juvenile system impossible because the Division of Youth Services could retain jurisdiction only until the age of eighteen.

This appeal follows. Additional facts and procedural history will be included to address Appellant's claims.

Discussion

Point I: Deputy Officer Pugh's Hearsay Testimony

1. Standard of Review

Appellate review of a juvenile court's decision to terminate jurisdiction over a youthful offender is limited to determining whether in the totality of the circumstances the court abused its discretion. State v. Woodworth , 941 S.W.2d 679, 697 (Mo. App. W.D. 1997) (citing In Int. of A.D.R. , 603 S.W.2d 575, 580-81 (Mo. banc 1980) ).

We also review a trial court's admission of evidence for an abuse of discretion. State v. Gyunashev , 592 S.W.3d 836, 839 (Mo. App. E.D. 2020) (citing State v. Hunt , 451 S.W.3d 251, 263 (Mo. banc 2014) (per curiam)). The U.S. Supreme Court "has never attempted to prescribe criteria for, or the nature of quantum of evidence that must support, a decision to transfer a juvenile for trial in an adult court." A.D.R. , 603 S.W.2d at 580 (quoting Breed v. Jones , 421 U.S. 519, 537, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975) ). "[S]ubstantial deference is given to the trial court's determinations regarding the admissibility of evidence, which will not be disturbed absent an abuse of discretion." Int. of D.S.H. v. Greene Cnty. Juv. Officer , 562 S.W.3d 366, 369 (Mo. App. S.D. 2018) (quoting Dodson v. Ferrara , 491 S.W.3d 542, 552 (Mo. banc 2016) ). An abuse of discretion exists where "the trial court's ruling is so unreasonable and arbitrary that it shocks the sense of justice and is clearly against the logic of the surrounding circumstances." Alberswerth v. Alberswerth , 184 S.W.3d 81, 100 (Mo. App. W.D. 2006) (citing Eltiste v. Ford Motor Co. , 167 S.W.3d 742, 757 (Mo. App. E.D. 2005) ).

We review the admission of evidence for prejudice, not mere error. D.S.H. , 562 S.W.3d at 369 (citing White v. R.L. Persons Constr., Inc. , 503 S.W.3d 339, 345 (Mo. App. S.D. 2016) ).

2. Analysis

At Appellant's certification hearing, Pugh testified to his understanding of the charges against Appellant. Pugh's testimony was based upon his review of charging documents and police reports prepared by others. Pugh explained Appellant had been charged with "robbery in the first degree, a Class A felony, and resisting arrest, which is a class E felony." Pugh added he understood Appellant was apprehended following "a long high-speed chase." Appellant objected because Pugh, who never talked to the victim or the arresting officers, lacked firsthand knowledge of the crimes. Appellant's trial counsel argued Officer Pugh could only testify to the charges themselves. The court overruled the objection, allowing Pugh to describe the events in greater detail, including his understanding the carjacking involved the use of a weapon and the victim identified Appellant as a participant. Over a continuing objection to "any and all hearsay statements" made by Pugh, he described Appellant's mother's statements about Appellant's behavior at home. Pugh also testified to Appellant's academic performance based on academic records for which there was no business records affidavit to satisfy the business records hearsay exception. Section 490.692. Testimony regarding the GPS records was also unaccompanied by a business records affidavit.

Appellant argues the juvenile court's reliance on hearsay evidence regarding the facts of the offense, Appellant's behavior at home, his academic performance, and whereabouts ascertainable through GPS tracking information to certify Appellant as an adult creates the definite and firm impression a mistake has been made.

Appellant notes a certification hearing is a critically important proceeding. Kent v. United States , 383 U.S. 541, 560, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). Appellant also notes Missouri law provides children special rights and immunities in criminal prosecution. State ex rel. D.V. v. Cook , 495 S.W.2d 127, 128 (Mo. App. W.D. 1973). Appellant argues this protection should be extended to prohibit reliance on hearsay evidence at certification proceedings to protect a juvenile's right to due process and fairness.

Appellant conceded at oral argument he can cite no authority prohibiting hearsay at a certification hearing. However, Appellant argues certification hearings are analogous to proceedings terminating parental rights, at which hearsay is inadmissible. D.S.H. , 562 S.W.3d at 371. Appellant also argues certification hearings are similar to probation revocation hearings, where applicable due process rights forbid reliance upon hearsay to revoke probation. In re Carson , 789 S.W.2d 495, 495 (Mo. App. S.D. 1990). Appellant urges the minimal due process required at juvenile certification proceedings "should require more" than these other proceedings.

The State does not dispute Pugh's testimony contained hearsay. The State instead asserts juveniles have no right to be treated in the juvenile justice system because children deemed improper subjects for this system, at the juvenile court's discretion, may be prosecuted under the general law. A.D.R. , 603 S.W.2d at 579. Section 211.071. Because there is no right to proceeding under the juvenile law, the State argues, the full panoply of constitutional rights is not applicable in a certification proceeding.

The State cites Judge Zel Fischer's dissent in D.E.G. v. Juv. Officer of Jackson Cnty . for the proposition the general rules of evidence do not...