Jeannette L., In re

• Decision Date: 01 September 1986
• Docket Number: 1033,Nos. 1032,s. 1032
• Citation: Jeannette L., In re, 523 A.2d 1048, 71 Md.App. 70 (Md. App. 1986)
• Parties: , 38 Ed. Law Rep. 615 In re JEANNETTE L. In re SHIRLEY P. ,
• Court: Court of Special Appeals of Maryland

Page 70

71 Md.App. 70

523 A.2d 1048, 38 Ed. Law Rep. 615

In re JEANNETTE L. In re SHIRLEY P.

Nos. 1032, 1033, Sept. Term, 1986.

Court of Special Appeals of Maryland.

April 14, 1987.

Laurie I. Mikva, Asst. Public Defender, Baltimore, for appellant, jeannette L.

Gary S. Offutt, Asst. Public Defender, Baltimore, for appellant, Shirley P.

Alan H. Murrell, Public Defender, Baltimore, on the brief, for appellants.

Deborah Chasanow, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Jillyn K. Schulze, Asst. Atty. Gen., Baltimore Arthur A. Marshall, Jr., State's Atty. for Prince George's County and Jeffrey L. Harding, Asst. State's Atty. for Prince George's County, Upper Marlboro, on brief), for appellee.

Argued before GILBERT, C.J., and KARWACKI and POLLITT, JJ.

GILBERT, Chief Judge.

These two appellants request, among other things, that the judgments against them be reversed because they received that for which they asked, a jury trial. Usually asking for and receiving a trial by jury is not a ground for appeal. Yet, when the request is made of a juvenile court, a forum where jury trials are not held, does the grant of the request constitute reversible error? Other issues raised by one or both of the appellants "run the gauntlet" from an attack on the constitutionality of Md. Educ. Code Ann. § 7-301(e)(2) to questioning the sufficiency of the evidence.

THE FACTS

The appellants, Jeannette L. (Mrs. L.) and Shirley P. (Mrs. P.) have several things in common: Each is the mother of school-age children; each was charged in the juvenile court with violating the State's Education Article in that the children did not attend school regularly; each demanded and received a jury trial in the juvenile court of Prince George's County; each was convicted by the jury and ultimately received suspended fines and sentences; each was placed on probation, and each appealed.

The record reflects that at the time of trial Mrs. L.'s daughters were twelve and ten years old, respectively. The older daughter was absent from school 86.5 days between September 11, 1985, and April 25, 1986. The younger daughter was absent from school 70 days between October 8, 1985, and April 28, 1986. Mrs. L. did not testify.

Her older daughter told the jury that the reasons she stayed home from school were her grandmother's death her great-aunt's hospitalization, her own hospitalization because of mononucleosis and her subsequent recuperation, rumors being spread at school about the reason for her hospitalization, and a rash and welts on her arm.

The younger daughter related to the jurors that she missed school because she helped her terminally ill grandfather, was hospitalized for a hip infection, had various sicknesses and colds, and could not get to school when the bus did not stop for her.

Mrs. P. also has two daughters. The daughters are eleven months apart in age. Nevertheless, on the trial date they were both fifteen years old.

Mrs. P. testified that the reasons for the daughters' nonattendance at school were her state of health, lack of cooperation from her children, and her inability to control their conduct. She also said that her daughters were often sick, citing such ailments as a sore mouth after having a cavity filled, a cut finger, and earaches. She permitted the children to stay home since she had no transportation and could not pick them up from school if they wanted to come home at midday.

Mrs. P.'s older daughter was absent from school 71 days between September 1985 and February 22, 1986. Her younger daughter, during the same time frame, was absent 76 days.

The petitions that were filed in the juvenile court ¹ against the two women alleged that each of them did:

"a. induce or attempt to induce ... a child subject to the compulsory attendance law of the State as defined in Section 7-101 [sic] of the Education Article of the Annotated Code of Maryland, to be unlawfully absent from school on [a stated number of days]. ²

b. employ or harbor ... a child subject to the compulsory attendance law of the State as defined in Section 7-301 of the Education Article of the Annotated Code of Maryland, thereby causing the child to be unlawfully absent from school on [a stated number of days].

c. From [a given date to another given date] have control over ..., a child who was six (6) years or older and under sixteen (16) years of age and who is subject to the compulsory attendance laws of the State as defined in Section 7-301 of the Education Article of the Annotated Code of Maryland, and failed to see that the child attended school or received instruction...."

Mrs. L. and Mrs. P. were tried separately. Each moved for a jury trial. Over the State's objection, the trial judge granted the motion and empaneled a jury.

Mrs. P. was found by the jury to be guilty of count c, "hav[ing] control over ... [but] fail[ing] to see that the child attended school or received instruction." She was sentenced to pay a fine of $500 and serve fifty days in the County Detention Center. The fine and jail term were suspended, and Mrs. P. was placed on supervised probation for two years. ³

The jury determined that Mrs. L. was guilty of counts b and c. She was fined $750 for each count and sentenced to concurrent terms of seventy-five days in the County Detention Center. The jail term and fine were suspended, and she was placed on probation for five years. ⁴

Immediately prior to the imposition of sentence, defense counsel informed the court that the jury trial demands made by Mrs. L. and Mrs. P. should not have been granted. Counsel asserted that when he asked for a jury trial he expected the case to be transferred to the district court, which had concurrent jurisdiction over the subject matter. ⁵ The trial judge observed, as do we, that there currently are no jury trials conducted in the district court. The judge declined to strike the verdict and suggested that appeals be filed.

THE ISSUES

In this Court Mrs. L. has fired a scatter gun at the proceeding in and judgment of the juvenile court. She puts eight questions to us. Mrs. P. has advanced five issues. Some of the matters posed by the two appellants, not surprisingly, are concerned with the same facts and law. We shall, therefore, divide the issues into three categories, i.e., joint, Mrs. L.'s, and Mrs. P.'s.

JOINT ISSUES

I.

Are the judgments of the circuit court, sitting as a juvenile court, invalid because the appellants were tried by a jury?

The appellants aver that the trial court lacked the authority to permit a jury trial. To support their position, the appellants point to Md.Rule 910(a) and to the opinion in the case of In re: Johnson, 254 Md. 517, 255 A.2d 419 (1969).

Maryland Rule 910(a) provides in clear and unambiguous language that hearings conducted by a juvenile court "shall be ... without a jury." (Emphasis supplied.)

The Court of Appeals, speaking through Judge Singley, said in Johnson, 254 Md. at 531, 255 A.2d at 426:

"[T]his Court long has recognized that in Maryland 'juvenile courts are courts of equity for juvenile causes' having 'the power and full right to decide without a jury every question of law and fact which may arise out of the subject matter before it and over which it has jurisdiction....' "

The Court further commented that if jury trials are to be part of the juvenile court system the Legislature will have to so provide. Johnson was decided more than seventeen years ago, and thus far the General Assembly has not required trial by jury in cases over which the juvenile court exercises jurisdiction. See Courts Art., §§ 3-801 to 3-835.

Two years after Johnson the Supreme Court decided McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). Justice Blackmun, writing for the plurality, remarked that "trial by jury in the juvenile court's adjudicative range is not a constitutional requirement." 403 U.S. at 545, 91 S.Ct. at 1986.

The plurality of the high court reasoned that a trial by jury would "remake the juvenile proceeding into a fully adversary process and ... put an effective end to what has been ... an ... informal protective process." 403 U.S. at 545, 91 S.Ct. at 1986. Justice Blackmun penned:

"Since [ In re] Gault [387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) and since Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) ] the great majority of States, in addition to Pennsylvania and North Carolina, that have faced the issue have concluded that the considerations that led to the result in those two cases do not compel trial by jury in the juvenile court. In re Fucini, 44 Ill.2d 305, 255 N.E.2d 380 (1970); Bible v. State, Ind. , 254 N.E.2d 319 (1970); Dryden v. Commonwealth, 435 S.W.2d 457 (Ky.1968); In re Johnson, 254 Md. 517, 255 A.2d 419 (1969); Hopkins v. Youth Court, 227 So.2d 282 (Miss.1969); In re J.W., 106 N.J Super. 129, 254 A.2d 334 (1969); In re D., 27 N.Y.2d 90, , 261 N.E.2d 627 (1970); In re Agler, 19 Ohio St.2d 70, 249 N.E.2d 808 (1969); State v. Turner, 253 Ore. 235, 453 P.2d 910 (1969). See In re Estes v. Hopp, 73 Wash. 2d 263, 438 P.2d 205 (1968); McMullen v. Geiger, 184 Neb. 581, 169 N.W.2d 431 (1969). To the contrary are Peyton v. Nord, 78 N.M. 717, 437 P.2d 716 (1968), and, semble, Nieves v. United States, 280 F.Supp. 994 (SDNY 1968)."

403 U.S. at 549, 91 S.Ct. at 1988.

A reading of the federal and state cases makes it unmistakable that a juvenile offender is not entitled to a jury trial in the juvenile court.

Prior to 1984, the only offense for which an adult could be charged in the juvenile court was that of contributing to a child's delinquency, a need for supervision, or a need for assistance. ⁶ Courts Art., § 3-831.

Whenever an adult is charged under Courts Art., § 3-831, he or she is entitled to move for a waiver of jurisdiction and, as a matter of right, have the case sent to the appropriate court. Courts Art., § 3-804(c); Md.Rule 913 f. ⁷ The statute and rule were designed...