McDowell v. State
| Decision Date | 12 December 1983 |
| Docket Number | No. 1182S435,1182S435 |
| Citation | 456 N.E.2d 713 |
| Parties | Kimberly McDOWELL, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Charles F. Leonard, Deputy Public Defender, Fort Wayne, for appellant.
Linley E. Pearson, Atty. Gen. of Ind., Jay Rodia, Deputy Atty. Gen., Indianapolis, for appellee.
Defendant-Appellant Kimberly McDowell was convicted by a jury in the Allen Superior Court of Murder, Ind.Code Sec. 35-42-1-(2) (Burns 1979), and class A felony Arson, Ind.Code Sec. 35-43-1-1(a)(1) (Burns Supp.1983). The trial court subsequently found that the two convictions were merged and accordingly sentenced Appellant to one term of thirty years imprisonment. Appellant now directly appeals and raises the following two issues for our review:
1. whether the Juvenile Court abused its discretion by waiving jurisdiction thereby permitting Appellant to be tried in the Superior Court as an adult; and
2. whether the Superior Court abused its discretion by finding Appellant competent to stand trial.
The Allen Juvenile Court had exclusive original jurisdiction over the instant case pursuant to Ind.Code Sec. 31-6-2-1 (Burns 1980) since the State's Petition to Adjudge Delinquency was filed on August 3, 1981. We note that said statute was amended effective September 1, 1981, to divest the juvenile court of jurisdiction over an individual for an alleged violation of Ind.Code Sec. 35-42-1-1 (murder) if said individual was at least sixteen-years-old at the time of the alleged offense. Ind.Code Sec. 31-6-2-1(d) (Burns Supp.1983) Ind.Code Sec. 31-6-2-4 (Burns 1980) controlled the waiver of jurisdiction by the instant juvenile court. That statute provided in pertinent part as follows:
"(a) Waiver of jurisdiction refers to an order of the juvenile court that waives the case to a court that would have jurisdiction had the act been committed by an adult. Waiver is for the offense charged and all included offenses.
* * *
(c) Upon motion of the prosecutor and after full investigation and hearing, the juvenile court shall waive jurisdiction if it finds that:
(1) The child is charged with an act that would be murder if committed by an adult;
(2) There is probable cause to believe that the child has committed the act; and
(3) The child was ten years of age or older when the act charged was allegedly committed; unless it would be in the best interests of the child and of the safety and welfare of the community for him to remain within the juvenile justice system." (emphasis added).
The following is a summary of the evidence presented during Appellant's waiver hearing. At the outset, both parties stipulated that Appellant was over sixteen-years-old when the instant offenses were committed. They also stipulated that the victim, fourteen-year-old Tabatha Mohler, died from asphyxiation due to severe smoke inhalation. On July 21, 1981, the Fort Wayne residence of Robert Muller caught fire and burned. Firemen found Mohler, one of the twelve occupants in the house, dead in her bed. Two firemen observed a blond-headed girl on a blue bicycle riding away from the fire. Appellant has blond hair. A man testified that he was with Appellant several hours after the fire and smelled gasoline on her clothes. A juvenile detained at the Wood Youth Center between July 11 and July 17, 1981, said that Appellant wrote a note to her during their coincidental detainments which indicated that Appellant was going to burn her foster parents' home. Robert Muller had been Appellant's foster father since March, 1981. Another of Muller's foster children testified that Appellant told her that she hated Muller and planned to kill him with a knife. A chemist and certified fire inspector testified that the fire at the Muller residence was incendiary in nature and was caused by the use of an accelerant. Additional evidence was presented which focused on Appellant's family history, behavior problems and deafness. Although a Psychologist, Sherwin Kepes, stated that long term incarceration without counseling would hurt Appellant, he did not know whether Appellant would repeat the conduct she was accused of. Appellant's Exhibit J contains a lengthy evaluation of Appellant prepared by Kepes which reveals Appellant's problems with deafness, her mother's inability to control her, her actions when frequently running away, her failure to attend school and her inability to understand or to rationally adjust to her emotional impulses. Also included in the evidence was the Allen Juvenile Court's November 3, 1978, order adjudging Appellant to be a delinquent child based on a number of juvenile code violations.
After its waiver hearing, the Allen Juvenile Court entered the following order:
Appellant now does not contend that the Juvenile Court erred by finding sufficient evidence showing her age, the nature of her alleged criminal acts and probable cause to believe that she committed the crimes for which she was charged. Appellant instead argues that the Juvenile Court abused its discretion by failing to find sufficient evidence indicating that it was in Appellant's best interest and in the best interests of the safety and welfare of the community for her to be retained within the juvenile justice system. Appellant points out that certain evidence was...
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