In re J.F.T., 7475.

• Decision Date: 04 June 1974
• Docket Number: No. 7475.,7475.
• Parties: In the Matter of J. F. T., Appellant.
• Court: D.C. Court of Appeals

320 A.2d 322

In the Matter of J. F. T., Appellant.

No. 7475.

District of Columbia Court of Appeals.

Argued March 20, 1974.

Decided June 4, 1974.

Arthur Lowy, Washington, D. C., appointed by this court, for appellant.

E. Calvin Golumbic, Asst. Corp. Counsel, Washington, D. C., with whom C. Francis Murphy, Corp. Counsel, and Richard W. Barton, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellee.

Before NEBEKER, PAIR and HARRIS, Associate Judges.

NEBEKER, Associate Judge:

This appeal from a delinquency proceeding presents primarily the question whether the delinquent's custodial confession to a burglary, larceny, and malicious destruction of property was properly admitted into evidence. The motion to suppress that confession was oral and imprecise. From the pretrial hearing record it is apparent that the motion was based on assertions that "the statement was [not] voluntarily given, and that the respondent [did not] knowingly waive his right to counsel." During the hearing, the only other more particular assertion to surface was that the delinquent had a right to the presence of his mother during questioning. Primary reliance was placed on a "per se" rule, reportedly adopted by some other trial court judges, that no juvenile can validly waive rights and thereby voluntarily incriminate himself absent the presence of a parent or an attorney. We treat three less significant issues at the end of this opinion, and affirm.

This 15-year-old delinquent previously had been charged in nine separate proceedings. After an apprehension in 1972 (thirteen months before the instant arrest), the delinquent, upon advice as to his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), refused to speak to this same arresting officer. In the instant case, when appellant was arrested at his mother's home at about 5:15 a. m., he was under a partial commitment order whereby he knew he was to return to custody. The arresting officer told appellant's mother, "We are taking him back to [the institution]".

Upon this arrest, and after having been first warned at the home by the arresting officer in the presence of his mother, the youth indicated that he understood his rights. He was again warned by a Youth Division officer after his arrival at the police station. Before this last warning, that officer stated he was going to "advise him of his rights". The delinquent responded that he already "knew them, and [the officer] didn't have to do that." A second warning or recitation was given in any event. Instead of indicating a willingness to answer all or any questions, the delinquent indicated a desire to be selective. He wrote "some" on the waiver form in response to whether he would answer questions. Within a few minutes, the delinquent stated, "You know I did it, don't you? You have my fingerprints".

The record does not reveal the precise context in which the challenged confession was forthcoming. We do know, however, that it was freely given without request for counsel, presence of a parent, or an indication of a change of mind. We also know from the mother's testimony that when the police arrived at her home she saw them through a window and immediately said to her son, "[C]ome on, give yourself up." The mother also added that "he got his clothes on and I led him to the door."

At the outset, we reject a so-called "per se" rule arbitrarily holding any juvenile's statement involuntary absent the presence of a parent or counsel. It must be recognized that some juveniles who commit criminal acts are essentially as sophisticated, or more so, in matters of this kind as many just over the age limit. In delinquency proceedings particularly, it is essential to balance the constitutional rights which relate to possible loss of liberty with the recognized modern approach and policy of care and treatment for the criminally-bent youth. This balancing cannot assume a legal incapacity to waive those rights without sacrificing, in many cases like this one, the vital interests underlying the policies and goals of the juvenile court system. Cf. Harling v. United States, 111 U.S.App.D.C. 174, 177, 295 F.2d 161, 164 (1961); Pee v. United States, 107 U.S.App.D.C. 47, 274 F.2d 556 (1959). Indeed, the authority cited in footnote 12 of Judge Bazelon's Harling opinion assumes that waiver of rights by juveniles is possible. Id. at 176 n. 12, 295 F.2d 163 n. 12. Persuasive cases support the notion. See United States v. Miller, 453 F.2d 634 (4th Cir. 1972); Cotton v. United States, 446 F.2d 107 (8th Cir. 1971); West v. United States, 399 F.2d 467 (5th Cir. 1968); United States v. Vitek, 395 F.2d 478 (7th Cir. 1968).

We must, then, decide whether the trial judge properly admitted this confession under all the circumstances revealed. In doing so, we are aware that it is contended:

The record also does not show affirmatively, as it must, that the Juvenile Court Judge found "that by reason of `age, education, and information, and all the pertinent facts' the minor [was] able to [and did] make an intelligent waiver." McBride v. Jacobs, 101 U.S.App.D.C. 189, 247 F.2d 595 (D.C.Cir., 1957) (Per Curiam). Because of this, the respondent's cause should be remanded for another hearing on the totality of the circumstances surrounding the making of his confession . . . . [Brief for Appellant at 10.]

Contrary to this contention, the written order of the trial judge reveals an awareness of the need to consider such factors. That order also demonstrates a careful consideration of factors militating for as well as against admissibility of the confession. The degree of experience with law enforcement was significant. See Rosser v. United States, D.C.App., 313 A.2d 876 (1974); Hawkins v. United States, D.C. App., 304 A.2d 279 (1973). So also was a history of the youth's refusal to answer questions during a previous arrest, and the fact that in this instance there was a willingness to answer "some" questions. Age was considered but, in this case, not deemed determinative either way. While noting the absence of the mother at the police station, the trial court judge also observed that she was told that she could be with her son during the critical period, and that...