K. W. B., In Interest of

• Decision Date: 01 October 1973
• Docket Number: No. KCD,KCD
• Citation: K. W. B., In Interest of, 500 S.W.2d 275 (Mo. App. 1973)
• Parties: In the Interest of K.W.B., a child under seventeen years of age. 26307.
• Court: Missouri Court of Appeals

Page 275

500 S.W.2d 275

In the Interest of K.W.B., a child under seventeen years of age.

No. KCD 26307.

Missouri Court of Appeals, Kansas City District.

Oct. 1, 1973.

Clifton E. Curtis, David Wm. Kierst, Jr., The Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant.

Michael E. Reardon, Law Student Certified under Mo. Sup. Ct. Rule 13, representing Juvenile Officer, Robert Popper, Supervising Atty., Tom Day, Pros. Atty., Jackson County, Kansas City, for respondent.

Before WASSERSTROM, P.J., and SHANGLER and SWOFFORD, JJ.

SHANGLER, Judge.

The appeal of K.W.B., a juvenile of 15 years of age, is from an order which placed him in a juvenile institution in Jackson County and which, additionally, imposed a suspended commitment to the Missouri Training School for Boys. ¹ The order, in effect, re-placed appellant in the same county institution to which he had been adjudicated, and then released in the continuing jurisdiction of the juvenile court, under a prior petition.

This appeal results from the exercise of jurisdiction upon allegations of conduct against appellant which, if committed by an adult, would be the felony of robbery in the first degree. It was specifically alleged that K.W.B., in concert with others, assaulted with a deadly weapon one Joe Cannova at his tavern in Kansas City, Missouri, and robbed him of money.

The hearing on the petition was in two phases, adjudicatory and dispositional. On the initial adjudicatory phase, Joe Cannova testified that at about 9:00 P.M. on February 10, 1972, he was tending bar when four males entered the tavern. One of them pointed a handgun at Cannova and ordered him to lie on the floor behind the bar. Meanwhile the men moved along picking up change from the top of the bar and took some money from the purse of a woman who was in the bar with her husband. The husband identified himself as a police officer, drew his revolver, and the robbers fled. He was shot in the pursuit. At the juvenile court hearing Cannova was the only witness called who was present at the robbery. He was unable to identify K.W.B. as a participant.

At an unspecified time that same evening, K.W.B. was picked up by Kansas City police officers and taken to the Youth Unit at department headquarters. At a time also unspecified, Charles Gardner, a Deputy Juvenile Officer on night intake duty at the Jackson County Juvenile Court, was requested by the police to come to the Youth Unit. The record does not indicate at what time Gardner arrived at police headquarters, nor is the sequence of events thereafter clear, but interrogation of the juvenile followed, his signed waiver of rights to an attorney and to remain silent was obtained, as well as his confession to the robbery. At the adjudicatory hearing the juvenile objected to the confession on the ground that the waiver was not validly made. The rest of the adjudicatory phase was given over to the determination of that issue.

The evidence in support of the waiver came from Charles Gardner, the deputy juvenile officer. He conceived the reason for his presence at the police department was to give the juvenile the Miranda warnings so that the police could then take his statement. The warning and waiver form which the boy eventually signed recited:

I have been advised that I have a right to remain silent; that any statement I make may be used as evidence against me in court; that I have a right to the presence of an attorney, either retained by me or one appointed for me without cost to me, and that he can be present while I am being questioned.

I have also been told that I can stop making a statement at any time but am willing to make such a statement and do not want a lawyer.

On direct examination Gardner testified that he went over the contents of the waiver form with the juvenile, sentence by sentence, and that the juvenile, who had been given a copy with which to follow the explanation, gave no indication that he did not understand it. Nor did the boy at any time indicate that he wanted a lawyer. Upon further examination, however, Gardner acknowledged that the boy had difficulty reading and examining the waiver, that he spent half an hour--'an extremely long time--in explaining to (K. W. B.), line for line, word for word' the contents of the document. Gardner also acknowledged, under questioning of the court, that he became aware of the boy's difficulty when K.W.B. could not read the copy of the waiver Gardner had furnished him. Gardner expressed his opinion, however, that K.W.B. understood the rights warning before signing the waiver, but did not explain the basis for his conclusion. Nor did he say what his explanation of rights consisted of other than the verbatim reading of the printed waiver form.

K.W.B. was questioned on his waiver of rights. It was his testimony that although the Miranda warnings were read to him, he did not understand them. He signed the waiver after about one-half hour of interrogation and explanation. In response to the court's inquiries, K.W.B. said that he did not read the waiver statements he had signed because he could not read. In further response, he said he did not understand that he did not have to make a statement or that any statement made could be used against him, and was not informed that he would be furnished counsel if he did not have one. He answered the court further that Gardner had told him he could have a lawyer or his mother present at the interrogation, and K.W.B. told him he would rather have his mother. (Gardner had testified that the boy told him he did not want his mother present or an attorney either.) Gardner left the interrogation room for a few minutes, apparently to telephone K.W.B.'s mother, and during his absence the police continued to question the boy. When Gardner returned he told the boy his mother was not coming but gave no reason. Evidently, soon afterwards, K.W.B. signed the written waiver form.

The boy's mother testified that Gardner called her at home on February 10, 1972 at about 11:00 P.M. and asked her to come to the station. Gardner's request, she said was not for her presence at the waiver of rights, but to pick up her son. She did not refuse to come, but told Gardner that she did not have a way to get there. She had no neighbors and her sister, her only relative, worked at night. She testified that she did not understand the charge against her son was serious; had she known, she would have gotten there by some way. She thought that Gardner would send someone for her if her presence was important.

Gardner had no recollection of the details of his conversation with K.W.B.'s mother. At first, he expressed doubt that he had called her at all. He then testified that he would have telephoned her as a matter of standard procedure. It was the standard procedure to call the parent of a child in custody, explain the offense, and ask the parent to be present. Once, Gardner testified that he was 'pretty sure' the mother had refused to come to the station. Thereafter, however, he testified repeatedly that he had no recollection of the particulars of his conversation with K.W.B.'s mother. He could not recall whether she had refused to come, nor whether she had told him she had no way to the station, nor whether he had either offered or refused her transportation.

At the adjudication of the waiver issue, under questioning of the court, it became apparent that the juvenile was suffering from dyslexia, an inability to read understandingly due to an impairment of the central nervous system. ² It developed also that Gardner, the deputy juvenile officer conducting the waiver interrogation, had the same affliction and so did his children, but that they had become equipped to read through special training. Gardner recognized K.W.B.'s reading difficulty, but was certain nonetheless that the boy 'understood what he was doing' when he signed the waiver.

The court determined that K.W.B. had made a valid waiver of rights and that his confession was freely and voluntarily given. The confession was the only evidence at the hearing which linked K.W.B. to the assault and robbery.

The first contention made by appellant is that in the totality of the circumstances the Miranda warnings given to K.W.B. were inadequate and thus the confession was admitted in violation of his Fifth, Sixth and Fourteenth Amendment rights. Cognately, the argument is made that the proponents of the juvenile court petition failed their burden to prove that K.W.B. voluntarily, intelligently, and understandingly waived his right to counsel and privilege against self-incrimination.

In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), determined that where a juvenile court proceeding may result in loss of liberty to a juvenile, l.c. 55(33, 34), 87 S.Ct. l.c. 1458, 'the constitutional privilege against self-incrimination is applicable . . . as it is with respect to adults'. The court also recognized the relevance of the Miranda rules (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)) in determining the validity of the process by which the trial admissions of a juvenile are obtained. In re Gault, supra, 387 U.S. l.c. 44(22), 56(35, 36), 87 S.Ct. 1428. While the concern of the Gault court was with the procedures and constitutional rights applicable at the adjudicatory phase of juvenile court proceedings, there is logical reason why the rationale which applies the guarantee against compulsory self-incrimination in the light of Miranda to the trial itself should apply to the pre-trial investigatory phase of the juvenile process as well. A coerced confession affects the integrity of the fact-finding process in court. Thus the requirement of Miranda for adequate warnings to protect against self-incrimination and that advisement of right to counsel be given a suspect under custodial interrogation was designed to protect the fairness of the trial itself. Miranda v....