J.N.W. v. Officer

• Decision Date: 15 February 2022
• Docket Number: WD 84378
• Citation: 643 S.W.3d 618
• Parties: In the Interest of: J.N.W., Appellant, v. JUVENILE OFFICER, Respondent.
• Court: Missouri Court of Appeals

643 S.W.3d 618

In the Interest of: J.N.W., Appellant,

v.JUVENILE OFFICER, Respondent.

WD 84378

Missouri Court of Appeals, Western District.

OPINION FILED: February 15, 2022

Application for Transfer to Supreme Court Denied March 29, 2022

Application for Transfer Denied May 17, 2022

Kathryn Merwald, Kansas City, MO, for appellant.

Kenneth C. Hensley, Raymore, MO, for respondent.

Before Special Division: Cynthia L. Martin, Chief Judge, Presiding, Gary D. Witt, Judge and W. Brent Powell, Special Judge

Cynthia L. Martin, Judge

J.N.W. appeals from an order entered by the juvenile division of the Circuit Court of DeKalb County ("juvenile court")¹ dismissing his juvenile proceeding and transferring him to a court of general jurisdiction for criminal prosecution as an adult pursuant to section 211.071.² J.N.W. asserts that the juvenile court committed error in certifying him as an adult because the evidence did not support that determination and because he was deprived of due process as the judge was not impartial. J.N.W. further claims that he received ineffective assistance of counsel during the certification hearing because counsel failed to object to admission of portions of a police report that constituted inadmissible hearsay and statements by J.N.W. that were subject to suppression. Finding no error, we affirm.

Factual and Procedural History

On October 25, 2020, the Juvenile Officer for the 43rd Circuit ("Juvenile Officer") filed a petition in the juvenile court alleging that J.N.W., who was then fifteen years old, needed care and treatment based on an allegation of abuse and neglect ("petition"). The petition alleged that J.N.W. was in protective custody because he was left without proper care, custody, and support necessary for his well-being when J.N.W.’s mother was arrested after fleeing from police at a high rate of speed with J.N.W. and his sibling in the vehicle.

The next day, the Juvenile Officer filed an amended petition adding an allegation of delinquency ("amended petition"). The amended petition alleged that after J.N.W. was taken into protective custody, he attempted to cause serious physical injury to a Children's Division worker ("victim") by attempting to cut her throat with a knife, and that J.N.W.’s actions would be assault in the first degree if he were an adult. The juvenile court held a detention hearing and found probable cause existed to believe that J.N.W. committed the acts alleged in the amended petition. The juvenile court placed J.N.W. under the juvenile court's jurisdiction, and ordered J.N.W. detained.

As authorized by section 211.071.1, the Juvenile Officer filed a motion for certification to allow prosecution of J.N.W. under the general law as an adult ("motion for certification"). A certification hearing was required by section 211.071.1 because the amended petition alleged that J.N.W. committed the offense of assault in the first degree. The motion for certification alleged that J.N.W. may not be a proper subject to be dealt with under the juvenile code³ because the alleged offense was serious; was vicious, forceful, and violent; and was an offense against a person.

On November 12, 2020, the Juvenile Officer filed a written report as required by section 211.071.6 summarizing information relevant to determining whether to certify J.N.W. as an adult ("certification summary"). The certification summary noted that J.N.W. is a resident of Maryland, and that J.N.W.’s history of offenses or experience with the juvenile justice system was unknown. The certification summary noted that the Juvenile Officer had no information about J.N.W.’s "sophistication and maturity in consideration of his home and environmental situation, emotional condition, and pattern of living." The certification summary included a recommendation that the juvenile court deny the motion for certification because the Juvenile Officer believed that commitment of J.N.W. to the custody of the Division of Youth Services for either an indeterminate or determinate period of time was a reasonable disposition. The certification summary asserted that commitment of J.N.W. to the custody of the Division of Youth Services would secure proper supervision of, and rehabilitative treatment for, J.N.W. in his best interest, and would provide for the safety of the victim and of the community.

The juvenile court held the statutorily required certification hearing on February 19, 2021. The Juvenile Officer testified about additional information discovered after preparation of the certification summary. The Juvenile Officer testified that J.N.W. had one prior referral in Maryland for assault, which was dismissed for lack of evidence; that J.N.W. had a history of low and failing grades in a prior school due to a lack of effort, not a lack of ability; and that J.N.W.’s school records did not reflect a history of behavioral issues. The Juvenile Officer testified that there was no indication that J.N.W.’s offense demonstrated a pattern of behavior; that J.N.W. had previously been committed to a juvenile institution; or that J.N.W. had previously been placed in protective custody. The Juvenile Officer testified that based on a review of the data from the last five years in the 43rd Judicial Circuit, certifying J.N.W. as an adult would not reflect racial disparity. The Juvenile Officer recommended denial of the motion for certification, given the lack of available information about all of the statutory factors for certification, and based on J.N.W.’s potential for rehabilitation if detained by the Division of Youth Services.

On cross-examination, the Juvenile Officer identified two photographs that were referred to in a police report reviewed by the Juvenile Officer to prepare the certification summary. However, the police report was not offered into evidence. The photographs depicted the knife allegedly used by J.N.W. to assault the victim, and the injury caused by the knife to the victim's throat.

The juvenile court also heard testimony from a community coordinator for the Division of Youth Services about the programs offered to delinquent juveniles; from the detention supervisor at the juvenile center about J.N.W.’s demeanor and behavior since the order detaining him; and from one of J.N.W.’s teachers at the juvenile detention center about J.N.W.’s performance and behavior in the classroom since the order detaining him. The victim was present during the certification hearing, but was not called to testify.

J.N.W. called Dr. James Garbarino ("Dr. Garbarino"), a psychologist specializing in the development of adolescents, to testify. Dr. Garbarino testified that adolescents, like all humans, have two types of thought: cold cognition and hot cognition. Dr. Garbarino testified that cold cognition occurs when a person is in a calm state, and hot cognition occurs when a person is in a situation of intense arousal. Dr. Garbarino testified that, due to brain development, an adolescent is less capable of reasoning during hot cognition so that "[t]here is often a discrepancy between ... what teenagers or adolescents can articulate as value positions or moral judgments and then their ability to implement those in arousing situations." Dr. Garbarino testified that adolescents are less able than adults to regulate their emotions and to control their impulses.

The juvenile court interjected during Dr. Garbarino's testimony, and asked J.N.W.’s counsel, "[W]here are we going with this? Under the statute, I'm to consider about eleven different factors. Which one are you trying to convince me on here?" J.N.W.’s counsel answered that Dr. Garbarino's testimony concerned J.N.W.’s mental state, which was relevant to determining whether J.N.W. was someone who is dangerous to the community and to determining whether J.N.W.’s actions were knowingly vicious. The juvenile court responded, "I'm going to let you proceed, and I'll give it the [credibility] or the weight that I believe that it deserves, okay? But move along."

Dr. Garbarino then testified about his evaluation of J.N.W., explaining that in addition to interviewing J.N.W. via Zoom, at which time Dr. Garbarino administered the Adverse Childhood Experience Scale, he reviewed information sent to him by J.N.W.’s counsel, including the police report regarding the incident with the victim and J.N.W.’s school records. Dr. Garbarino testified that, based on his evaluation of J.N.W. and his review of the provided records, it was his opinion that "[J.N.W.] is not a risk for serious future chronic violent behavior" and that "[J.N.W. would be] better served by dealing with him in juvenile court rather than transferring him," citing J.N.W.’s intelligence, functional family relationships, and lack of history of violent delinquency. Dr. Garbarino testified that he believed that J.N.W. "was in a state of intense fear about the placement of himself and his brother in foster care" because J.N.W.’s mother "had given him many stories about how dangerous it was to go into foster care [and] how much at risk he would be." Dr. Garbarino explained that it was his opinion that, because J.N.W. was in a state of intense fear, "he reacted in a very adolescent way, a very short-term thinking, impulsive, self-protective action which was not a normal criminal motivation" but instead a response to a perceived threat. Dr. Garbarino testified that he believed J.N.W. was amenable to the treatment he would receive in the juvenile system.

At the conclusion of the certification hearing, counsel for both the Juvenile Officer and J.N.W. recommended that the motion for certification be denied. The juvenile court took the case under advisement. However, the juvenile judge stated on the record that he was "troubled by this case:"

I've been a judge for 21 years, I guess, somewhere in that vicinity, and practiced law for about 20 years prior to going on the bench; and during my practice of law, I represented the juvenile office for the 43rd Judicial Circuit for many,

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