M. D. J., In Interest of

• Decision Date: 11 October 1979
• Docket Number: No. 9631,9631
• Citation: 285 N.W.2d 558
• Parties: In the Interest of M. D. J., a child. Steven E. BAY, Petitioner and Appellee, v. M. D. J., a Child, and V. M., his Guardian ad Litem, Respondents and Appellants. Civ.
• Court: North Dakota Supreme Court

Page 558

285 N.W.2d 558

In the Interest of M. D. J., a child.

Steven E. BAY, Petitioner and Appellee, v. M. D. J., a Child, and V. M., his Guardian ad Litem,

Respondents and Appellants.

Civ. No. 9631.

Supreme Court of North Dakota.

Oct. 11, 1979.

John E. Jacobson, State's Atty. for Mercer County, Stanton, for petitioner and appellee.

Benjamin C. Pulkrabek, Mandan, for respondents and appellants.

VANDE WALLE, Justice.

M. D. J., a juvenile, has appealed from the findings of fact and order of disposition entered April 23, 1979, by the Mercer County juvenile court, which found M. D. J. to be a delinquent child because he had committed the delinquent act of murder. M. D. J. was placed under the care, custody, and control of the Superintendent of the North Dakota State Industrial School for a period of two years commencing from the date of the order. We affirm.

This court's scope of review, under the Uniform Juvenile Court Act, Chapter 27-20, N.D.C.C., pursuant to Section 27-20-56, has been held to be equivalent to the former procedure of trial de novo. In Interest of D. S., 263 N.W.2d 114 (N.D.1978). Although appreciable weight is given to the juvenile court's findings of fact, this court is not bound in this matter by the "clearly erroneous" rule found in North Dakota Rules of Civil Procedure 52(a). McGurren v. S. T., 241 N.W.2d 690 (N.D.1976).

Reviewing anew the evidence presented in this case we find that on December 29, 1978, at approximately 5:15 a. m., Deputy Sheriff Steven Bay received a radio message to the effect that some people at an address in Hazen, North Dakota, had been shot but that they were alive and sitting up. No names were given to the officer at that time. Bay immediately drove to Hazen. When he arrived at the scene he checked for footprints in the 5 to 8 inches of newly fallen snow but found none leading from the house. He met Officer Nodland and Deputy Sheriff Peterson, who had also been informed of the incident, at the front of the house and requested that they station themselves there while Bay attempted entry by the back door. No further conversation occurred between the officers at that time. Bay was concerned about further shootings and asked the ambulance people, who had recently arrived, to wait outside until called.

With his gun drawn and ready, Bay knocked on the back door. He was dressed in his uniform, which was covered by a parka, but the parka was open, revealing his badge. Bay also had a badge on his cap. Through a glass in the door he saw M. D. J. and his sister, M. E. J.

The girl gestured entry, and Bay entered. He met M. D. J. just inside the back door. Bay asked M. D. J., "Where are your parents?"

M. D. J. replied, "They are upstairs." He paused and then added, "I shot them."

Bay then took M. D. J. into custody and led him toward the front door. The other officers were then let into the house and M. D. J. was left with Officer Nodland while Bay and Peterson hurried upstairs. They found M. D. J.'s parents in their bed. His father was already dead, but his mother still had a weak pulse. She was carried out to the waiting ambulance but died before she reached the hospital.

In the meantime, Nodland kept M. D. J. in custody while he searched the downstairs for other people. He found five more children in addition to M. D. J. and M. E. J. Nodland asked M. D. J. where the gun was and was told it was upstairs under the mattress on M. E. J.'s bed. M. D. J. then showed the gun to Nodland and Bay. The gun and shells were later removed by another officer. The house was secured and M. D. J. was taken to the Mercer County sheriff's office.

In the afternoon, a written statement was obtained from M. E. J. in which she stated that M. D. J. had told her the gun was under her mattress. Later, a search warrant was issued and the house was searched for further weapons, M. D. J.'s pajamas, the bedsheets, and several other items. M. D. J. was charged with delinquency based upon two counts of murder. Prior to the hearing, M. D. J. moved to suppress his statement concerning the shooting of his parents and the location of the pistol. The statement was deemed admissible by the juvenile court. Admission of the pistol into evidence was initially suppressed, but it was later admitted after the petitioner was allowed to complete the record to the juvenile court's satisfaction. The juvenile court found M. D. J. to be guilty of the delinquent act of murder and ordered him to be placed under the care, custody, and control of the Superintendent of the North Dakota Industrial School for a period of two years commencing with the date of the order. M. D. J. has now appealed from this determination of the juvenile court.

As grounds for reversal, M. D. J. contends:

1. The juvenile court erred in failing to suppress M. D. J.'s statement which indicated that he had shot his parents.

2. The juvenile court erred in failing to suppress admission of the murder weapon.

3. The juvenile court judge was not a neutral and impartial judge, but instead was an advocate for the State.

4. The juvenile court erred in failing to give M. D. J. credit for time spent in custody prior to the disposition of this case.

I

We consider first the contention that the juvenile court erred when it failed to suppress M. D. J.'s statement that he had shot his parents.

M. D. J. argues that, pursuant to the Uniform Juvenile Court Act, particularly Section 27-20-26(1), N.D.C.C., ¹ he was entitled to representation by counsel and that at the time he admitted to Officer Bay that he had shot his parents a proceeding under the Uniform Juvenile Court Act had begun. M. D. J. further relies upon the decision in Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), that statements elicited by the police during interrogation may not be used against a defendant at a criminal trial where the police investigation was no longer a general inquiry but had begun to focus upon a particular individual. In support of his position that a "proceeding" within the meaning of the Juvenile Court Act had begun at the time Officer Bay asked him where his parents were, M. D. J. cites In the Interest of R. W. B., 241 N.W.2d 546 (N.D.1976). R. W. B. involved the termination of parental rights, and this court held that before proceeding with an initial interview with a representative of the investigating social service agency, parents involved in termination-of-rights proceedings are entitled, pursuant to Section 27-20-26(1), N.D.C.C., to benefit of counsel.

In R. W. B., the parents had made statements to an investigator from the county social service center before they were advised of their right to counsel and before they had obtained the services of counsel. This court held that those statements were improperly admitted into evidence because the questions asked by the investigator were designed to elicit evidence of child abuse and that the parents were entitled to be advised of their right to counsel pursuant to Section 27-20-26(1), N.D.C.C., at the time the investigation had focused upon them. ²

The decision in R. W. B. relied upon In re J. Z., 190 N.W.2d 27 (N.D.1971), also involving termination of parental rights, in which this court noted that a party is entitled to counsel at all stages of any proceeding under the Juvenile Court Act and that termination-of-parental-rights proceedings are a part of the Act. In J. Z., the parents were interviewed by the juvenile supervisor and were not represented by counsel, nor were they advised of a right to counsel. The parents' statements were admitted into evidence. This court held that the parents should have been advised of their right to counsel and should have been afforded the opportunity of consulting with a lawyer before proceeding with the initial interview with the juvenile supervisor because the juvenile supervisor was functioning as a law-enforcement officer "gathering evidence, on the one hand, and, on the other, determining whether there would be court proceedings to terminate parental rights." 190 N.W.2d at 32. ³

We do not find R. W. B. or J. Z. applicable to the factual situation here present, for in R. W. B. this court stated:

"We express no opinion, however, on the necessity for advising a parent of the right to counsel where the investigation involves only the initial screening of the complaint (such as where investigators visit the parent's home based upon an anonymous complaint) or an initial determination of whether sufficient evidence exists to substantiate such complaint. See In re J. Z., supra, 190 N.W.2d at 32." 241 N.W.2d at 556.

And in J. Z.,, this court stated:

"During this initial interview with the parents, the juvenile supervisor was proceeding under N.D.C.C. Sec. 27-20-06 which empowers him in that capacity to make investigations, to receive and examine complaints and 'charges of * * * deprivation of a child for the purpose of considering the commencement of proceedings * * *.' He was not simply screening a complaint to determine if there was jurisdiction or if there was no evidence substantiating the complaint. Rather, he was functioning as a law enforcement officer gathering evidence, on the one hand, and, on the other, determining whether there would be court proceedings to terminate parental rights." 190 N.W.2d at 32.

We are not faced with answering the question left unanswered in R. W. B., i. e., whether or not a person must be advised of a right to counsel where the investigation involves only the initial screening of the complaint against him. Here, there was no complaint against M. D. J. The evidence clearly indicates, without contradiction, that at the time Officer Bay approached the residence he knew only that there had been a shooting. He did not know who had been shot or who had done the shooting. He was unfamiliar with the family. There had been a heavy snowfall that night and there were no footprints in the new snow outside the...