LLJ v. State

• Decision Date: 30 April 1999
• Citation: 746 So.2d 1052
• Parties: L.L.J. v. STATE.
• Court: Alabama Court of Criminal Appeals

746 So.2d 1052

L.L.J. v. STATE.

CR-97-1518.

Court of Criminal Appeals of Alabama.

April 30, 1999.

P. Leigh Sansone, Bessemer, for appellant.

Bill Pryor, atty. gen., and Frances R. Clement, asst. atty. gen., for appellee.

LONG, Presiding Judge.

The appellant, L.L.J., appeals from the juvenile court's order transferring her to the circuit court for prosecution as an adult on the charge of attempted murder.

During the probable-cause phase of the appellant's transfer hearing, J.M. testified that at around 1:00 p.m. on November 14, 1997, she and the appellant left school with C.A. and another juvenile. The four juveniles drove to the appellant's house in a pickup truck and parked in the driveway next door. J.M. testified that the appellant and C.A. then entered the appellant's house; she said she and the other juvenile remained in the truck. J.M. stated that as she sat in the truck, she heard a noise that sounded like a door slamming and then saw the appellant and C.A. running out of the appellant's house toward the truck, screaming. J.M. testified that when she asked the appellant what had happened, the appellant told her that she had shot her mother. The four juveniles drove to a pay telephone, where they telephoned 911 for assistance for the appellant's mother. They then drove to J.M.'s house.

J.M. testified that later on the day of the shooting, the appellant gave her several letters and told her to throw them away. One of the letters, which the appellant had addressed to C.M., discussed planning the shooting. J.M. testified that she later turned the letters over to the police.

Jim Rice, a sergeant with the Birmingham Police Department, testified that he was called to the appellant's house following the shooting. When he arrived at the scene, the appellant's mother, who had been shot in the face, was being tended to by paramedics. Sergeant Rice testified that on November 16, 1997, two days after the shooting, the appellant turned herself in to the police department. The appellant arrived at the police station accompanied by a friend and the friend's mother. Sergeant Rice stated that after the appellant had waived her juvenile Miranda rights, she gave a statement admitting that she had shot her mother "because her mother was mean to her." (R. 92.) In addition, said Sergeant Rice, the appellant told him that she and C.A. had planned to kill their parents and that this plan had originated with C.A. According to Sergeant Rice, the appellant stated that she got the gun she used to shoot her mother from C.A. the day before the shooting.

Sergeant Rice testified that on November 16, 1997, J.M. gave him several letters written by the appellant, which J.M. told him the appellant had given to her and told her to destroy. The appellant's mother testified at the hearing and identified the handwriting on the letters as the appellant's. At the conclusion of this phase of the transfer hearing, the juvenile court found that there was probable cause to believe that the appellant had committed the offense of attempted murder.

At the dispositional phase of the transfer hearing, Dan Sudd, a juvenile probation officer with the Jefferson County Family Court, testified that he was assigned to review the appellant's case. Sudd testified that after conducting an investigation into the appellant's background and into the incident, and upon considering the relevant statutory factors, it was his opinion that the appellant should be transferred to the circuit court for prosecution as an adult. In this regard, Sudd stated:

"[I]t would be in [the appellant's] best interest to keep it in the juvenile court. But the place and where it occurred, who it occurred to and the manner in which it occurred, I think she is definitely a threat to the safety of the community. And after taking a lot of things under consideration and several discussions with [the appellant], I just think the safety of the community just overshadows much more. And I feel that this case should be transferred to the criminal court for adult prosecution."

(R. 116.) The written report prepared by Sudd was also admitted into evidence. In that report, Sudd wrote, in part:

"[The appellant] presents a virulent threat to the safety of the community if the allegations made by her accuser are true. Her likelihood of benefiting from any treatment within the juvenile justice system is questionable."

(C. 47.) Sudd also provided testimony concerning the appellant's various disciplinary and truancy problems at school. In addition, Sudd recounted several incidents the appellant had been involved in while in detention, including having in her possession prohibited items; instigating disputes; placing Nazi, Ku Klux Klan, and satanic symbols on letters she had written; and, in one of those letters, asking a friend to beat up someone the appellant was angry with and to send her a photograph of the victim after the beating.

The state called two expert witnesses to testify concerning psychological evaluations that they had performed on the appellant. Dr. Kyle Echols, a child psychiatrist, testified that he had evaluated the appellant and had diagnosed her as having a "conduct disorder [with] adolescent onset." (R. 238.) He stated that there was not a good treatment available for this disorder, that the appellant's "prognosis would be poor," and that "the chances for significant improvement as far as responding to some psychiatric intervention would not be particularly promising." (R. 244.) The written psychological report prepared by Dr. Echols was admitted into evidence. Dr. Gypsy Abbott, a professional adolescent counselor, testified that she had performed two psychological tests on the appellant: an IQ test, the results of which indicated that the appellant's IQ was 73 and that she had a possible learning disability, and the Minnesota Multiphasic Personality Inventory, which Dr. Abbott stated indicated that the appellant had emotional problems. The written report prepared by Dr. Abbott and reflecting her psychological evaluations of the appellant was admitted into evidence.

During the dispositional phase of the transfer hearing, the appellant called Dr. Robert Lyman to testify on her behalf as an expert in the area of child psychology and on the rehabilitation facilities available through the juvenile court system. Although the juvenile court certified Dr. Lyman as an expert, the court refused to allow Dr. Lyman to testify, on the ground that he had not personally interviewed the appellant.

At the conclusion of this phase of the transfer hearing, the juvenile court granted the state's motion to transfer the appellant to the circuit court for prosecution as an adult.

I.

The appellant, who was 15 years old at the time of the offense, contends that the juvenile court erred by admitting her statement to police into evidence during the probable-cause phase of her transfer hearing because, she says, she did not knowingly, voluntarily, and intelligently waive her juvenile Miranda rights before making the statement.

In Ex parte Smith, 611 So.2d 1023 (Ala. 1992), the Alabama Supreme Court stated:

"When the State offers in evidence a juvenile's statement, it must show that the juvenile made the statement after being advised of his rights under Rule 11[(B)], Ala.R.Juv.P. Ex parte Whisenant, 466 So.2d 1006 (Ala.1985); Carr v. State, 545 So.2d 820 (Ala.Cr.App.1989). Rule 11[(B)] requires that a juvenile be given the standard Miranda warnings and also requires that he be told that he has the `right to communicate with [his counsel, parent, or guardian if they are not present] and that, if necessary, reasonable means will be provided for him to do so.'

"`Miranda [v. State of Arizona] holds that "[t]he defendant may waive effectuation" of the rights conveyed in the warnings "provided the waiver is made voluntarily, knowingly and intelligently." 384 U.S. [436], at 444, 475, 86 S.Ct. [1602], at 1612, 1628 [16 L.Ed.2d 694 (1966)]. The inquiry has two distinct dimensions. Edwards v. Arizona, [451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981)]; Brewer v. Williams, 430 U.S. 387, 404 [97 S.Ct. 1232, 1242, 51 L.Ed.2d 424] (1977). First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the "totality of the circumstances surrounding the interrogation" reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.'

"Moran v. Burbine, 475 U.S. 412, 421, 106 S.Ct. 1135, 1140-41, 89 L.Ed.2d 410 (1986)

.

"`The United States Supreme Court has specifically held that the "totality of the circumstances" test is applicable when determining the admissibility of a juvenile's confession:

"`"This totality-of-the-circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved.... The totality approach permits—indeed it mandates—inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile's age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights."`

"Carr, 545 So.2d at 822 (Ala.Cr.App. 1989), quoting Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979)."

611 So.2d at 1024-25.

In O.M. v. State, 595 So.2d 514 (Ala.Cr. App.1991), writ quashed, 595 So.2d 528 (Ala.1992), this court recognized:

"`[w]here, on the issue of the voluntariness of a confession, evidence offered by the defendant conflicts with that offered by the State, it

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