Marshall v. State

• Citation: 282 S.E.2d 301,248 Ga. 227
• Decision Date: 29 September 1981
• Docket Number: No. 37551,37551
• Parties: MARSHALL v. The STATE.
• Court: Georgia Supreme Court

Page 301

282 S.E.2d 301

248 Ga. 227

MARSHALL v. The STATE.

No. 37551.

Supreme Court of Georgia.

Sept. 29, 1981.

Irvan A. Pearlberg, Marietta, for John Lincoln Marshall.

Thomas J. Charron, Dist. Atty., James F. Morris, Asst. Dist. Atty., Marietta, Arthur K. Bolton, Atty. Gen., Russell N. Sewell, Jr., Asst. Atty. Gen., Atlanta, for the State.

MARSHALL, Justice.

Defendant John Lincoln Marshall, a juvenile, appeals from his convictions in Cobb Superior Court of murder and rape, for which he received two concurrent life sentences. The sole issue before us is whether the trial court erred in overruling his motion to suppress his in-custody confession, allegedly made before there had been a compliance with the requirements of Georgia juvenile law concerning detention. See Code Ann. § 24A-1402(a) (Ga.L.1971, pp. 709, 723; 1973, pp. 882, 885; 1977, pp. 1237, 1238). We affirm.

1. The appellant first contends that there was a failure of compliance with the provisions of Code Ann. § 24A-1402, supra, by his being taken first to a police station, rather than one of the four dispositions stipulated in § 24A-1402(a). However, it has been held in several cases that such a deviation may be reasonable under the circumstances and not per se a violation of the Juvenile Code. See, e. g., Miller v. State, 240 Ga. 110, 239 S.E.2d 524 (1977); Williams v. State, 238 Ga. 298(1), 232 S.E.2d 535 (1977); C.R.T. v. State of Ga., 148 Ga.App. 628, 252 S.E.2d 58 (1979); R. J. v. State of Ga., 143 Ga.App. 213(1a), 237 S.E.2d 691 (1977). Here, the appellant was advised on two different occasions of his right to be questioned at a place other than the police station, and he and his mother signed a written waiver of this right on an "advice of rights to juveniles" form. ¹ Moreover, § 24A-1402(a)(4) permits a juvenile suspected of committing a delinquent act to be brought before superior court if the act is one over which said court has concurrent jurisdiction. The testimony here was that the appellant was taken by the police station for the purposes of "booking" him for murder and rape (under warrants for which he had been arrested) and securing hair samples to be used as evidence. He was then taken directly to the Youth Development Center for detention, as required by Code Ann. §§ 24A-1402(a)(4) and 24A-1403, and as the police had informed his mother that they would do. Accordingly, the deviation by the police station was a necessary and proper procedure, hence not a violation of the provisions of the Juvenile Code.

2. The appellant further contends that there was a failure of compliance with the Juvenile Code provisions for detention in that his mother was not permitted to accompany him to the police station. It is true that a number of cases refer to the "right" of the juvenile's parents to be present during proceedings under the Juvenile Code. See, e. g., Crawford v. State, 240 Ga. 321, 325(1), 240 S.E.2d 824 (1977); Daniels v. State, 226 Ga. 269, 273, 174 S.E.2d 422 (1970). There is no provision in the Juvenile Code requiring that one or both parents be present during the questioning. This contended requirement seems to have originated with In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). That case was a delinquency adjudication hearing, rather than one, as here, where the juvenile was arrested under warrant and charged with a capital felony. Thus, In re Gault does not stand for the proposition that the presence of a parent is constitutionally required to make an in-custody statement admissible. (The police testified that the interrogation of the appellant was desired to be done outside her presence because of the sensitive nature of the subject to be discussed.)

3. In People v. Lara, 67 Cal.2d 365, 62 Cal.Rptr. 586, 432 P.2d 202 (1967), cert. den., 392 U.S. 945, 88 S.Ct. 2303, 20 L.Ed.2d 1407 (1968), it was held that a minor has the capacity to make a voluntary confession even in a capital case, without the presence or consent of counsel or other responsible adult, with such absence being just one factor or circumstance to consider in determining voluntariness of the confession. See also generally 47 Am.Jur.2d, Juvenile Courts, Etc. 1024, § 50, and the following cases annotated thereunder: King v. State, 36 Md.App. 124, 373 A.2d 292 (1977); Re Appeal in Maricopa County Juvenile Action, 118 Ariz. 284, 576 P.2d 143 (1978); Lee v. State, 561 P.2d 566 (Okl.Cr.1977); Myles v. State, 354 So.2d 842 (Ala.Cr.App.1977); State v. Young, 220 Kan. 541, 552 P.2d 905 (1976); Parker v. State, 351 So.2d 927, 934(10, 11) (Ala.Cr.App.1977); Doerr v. State, 348 So.2d 938 (Fla.App.1977); State in Interest of Campbell, 344 So.2d 711 (La.App.1977).

In Riley v. State, 237 Ga. 124, 128, 226 S.E.2d 922 (1976), we rejected a per se exclusionary rule to confessions and incriminating statements given outside the presence of the juvenile's parents, as had been applied in Freeman v. Wilcox, 119 Ga.App. 325, 167 S.E.2d 163 (1969). We there held that "the question of a voluntary and knowing waiver depends on the totality of the circumstances," to be analyzed by a consideration of nine factors promulgated by West v. United States, 399 F.2d 467, 469 (1968), cert. den. 393 U.S. 1102, 89 S.Ct. 903, 21 L.Ed.2d 795. Following is an analysis of the facts of this case under the criteria of Riley :

(1) Age of the accused. At the time of the questioning, the appellant was three days away from his fifteenth birthday. "(A)ge alone is not determinative of whether a person can waive his rights." Riley, supra, p. 128, 226 S.E.2d 922. Our courts have approved statements from defendants of similar and lower ages. See Williams v. State, 238 Ga. 298, 232 S.E.2d 535 (1977) (14 years); C.R.T. v. State, 148 Ga.App. 628, 252 S.E.2d 58 (1979) (11 years).

(2) Education of the accused. The appellant was in the eighth grade of a school for emotionally disturbed (not mentally retarded) children, and apparently had never had to repeat a grade. There was evidence that he had a grade average of "B"; an IQ of 86 ("almost normal"); a near normal understanding of spoken language; and an ability to give a considered answer to questions, without tending to be overly influenced by what the police may have wanted him to do or say. "A mere showing that one who confessed to a crime may have suffered from some mental disability is not a sufficient basis upon which to exclude the statement." Corn v. State, 240 Ga. 130, 136, 240 S.E.2d 694 (1977) and cits. Our courts have approved statements from defendants with similar and lower IQs. See Miller v. State, 240 Ga. 110, 239 S.E.2d 524 (1977); Williams v. State, 238 Ga. 298, 232 S.E.2d 535, supra; Goodwin v. State, 236 Ga. 339, 223 S.E.2d 703 (1976); Farley v. State, 145 Ga.App. 98, 243 S.E.2d 322 (1978).

(3) Knowledge of the accused as to both the substance of the charge and the nature of his rights to consult with an attorney and remain silent. The juvenile court referee testified that he had advised the appellant of his rights on a number of occasions over the appellant's lengthy history with the juvenile court, and that, based upon that, plus the reading of his rights in connection with the present case, he believed that he understood his rights. The appellant had elected whether or not to be represented by an attorney on previous occasions, and in each appearance in juvenile court he had been the decision maker, doing all the talking and not communicating with his mother other than to look at her from time to time. The appellant was aware of the charges against him by the notoriety of the murder in his community and by being informed in the presence of his mother that he was under arrest for rape and murder and later that he was charged with the murder and rape of the named victim.

The appellant was given permission to have a parent present when he gave a prior statement, as he had requested. Although his mother, who was present during this first statement, first requested prior to the first statement that he be allowed an attorney during the in-custody interrogation, she later signed a waiver including the right to an attorney. She later acquiesced to his giving the statement alone, stating that he could "make up his own mind." He...