Pima County Anonymous, Juvenile Action No. J 24818-2, In re

• Decision Date: 15 October 1973
• Docket Number: No. 10894,10894
• Citation: 515 P.2d 600,110 Ariz. 98
• Parties: In the Matter of the Appeal in PIMA COUNTY ANONYMOUS, JUVENILE ACTION NO. J 24818--2.
• Court: Arizona Supreme Court

Page 600

515 P.2d 600

110 Ariz. 98

In the Matter of the Appeal in PIMA COUNTY ANONYMOUS, JUVENILE ACTION NO. J 24818--2.

No. 10894.

Supreme Court of Arizona, In Banc.

Oct. 15, 1973.

Rehearing Denied Nov. 21, 1973.

Howard A. Kashman, Former Pima County Public Defender, Edward P. Bolding, Pima County Public Defender by Eleanor Daru Schorr, Former Deputy Public Defender and Richard Van Duizend, Deputy Public Defender, Tucson, Fred Klein, Third Year Law Student University of Ariz., for appellant.

Gary K. Nelson, Atty. Gen., Phoenix by Howard L. Fell, Asst. Atty. Gen., Rose Silver, Former Pima Co. Atty., Dennis DeConcini, Pima Co. Atty. by Fred Belman, Deputy Co. Atty., Tucson, for appellee.

HAYS, Chief Justice.

This appeal arises from the April 13, 1971, order of the Juvenile Division of the Superior Court of Pima County, Juvenile Court No. 24818--2, declaring appellant to be a delinquent; and from the denial on June 17, 1971, of appellant's motion for a new trial, and in the alternative to alter or amend judgment. Thereafter, on request of the Court of Appeals, Division Two, this court took this case as a direct appeal.

Between March 4 and March 7, 1971, a series of daylight attempted robberies and robberies took place in the vicinity of Nash Elementary School. The victims ranged between the ages of eight and twelve years old. The items involved included cash not exceeding $2.00, a bike lock and some keys. None of the victims could provide a detailed description of their assailant but a few common facts were given by all of the victims. The assailant was a white male, junior high school age, riding a red bicycle, wearing a red T-shirt, and using a switchblade knife.

Due to these incidents, the police established a mobile stake-out surveillance of the area. Involved in this stake-out were two officers, one of whom was a school resource officer for Amphitheater Junior High School and Nash Elementary School.

On March 8, 1971, one of the detectives observed the juvenile, appellant herein, on two occasions. The first observation placed the juvenile by a building under construction. The second occasion occurred just five minutes later and placed the juvenile as heading towards an area of a hotel in the immediate vicinity of the first sighting. The detective then left his unmarked car and ran towards the juvenile and caught up with him in the coke machine area.

At this point, the juvenile was ordered off his bicycle and was searched by the detective. The juvenile was asked where the knife was, to which he responded that he did not have a knife, nor did the search produce one. The juvenile was also questioned as to where he was going and why he was absent from school. The juvenile responded that he was going to a nearby gas station to have his bicycle fixed. The detective then asked the juvenile to accompany him to his car so that they could proceed to Nash Elementary School. From testimony at the hearing, it is clear that the detective took the juvenile into custody as a possible suspect in the robberies.

Upon arrival at Nash School, the juvenile was placed in the reception room outside the principal's office. The detective then requested that the robbery victims be called into the office. In substance, each victim was asked to walk into the room and inform the detective if there was anyone there that they knew. Each of the victims complied with this request and each identified the juvenile in question as the assailant.

The juvenile was subsequently charged with five counts of armed robbery, one count of assault with a deadly weapon and one count of theft. The theft count was dismissed in the trial court's minute entry of April 12, 1971, and order of April 13, 1971, and the assault charge was reduced to simple assault. At the adjudicatory hearing of April 8--9, 1971, counsel for the juvenile made a continuing objection to the use of the testimony of those witnesses who participated in the identification at Nash School. The county attorney attempted to validate the in-court identification by propounding a series of hypothetical questions that required the witnesses to block out from their memories the identification at the school. In defense, the juvenile offered the testimony of a relative as to his whereabouts on one of the days involved.

On April 12, 1971, by a minute entry and by an order filed April 13, 1971, the juvenile was declared a delinquent. Counsel for the juvenile moved for a new trial or in the alternative to alter or amend judgment. This motion was denied by the court by a minute entry on June 17, 1971. The dispositional hearing was held on July 9, 1971, and the juvenile was placed on probation by an order filed July 12, 1971.

Appellant presents three issues for resolution: that appellant has been denied the right to an impartial finder of fact by the juvenile court's involvement in the accusatory process; that the arrest of appellant on March 8, 1971, was illegal and any evidence derived therefrom is inadmissible; and that the hypothetical questions propounded by the county attorney in order to validate the in-court identification are not permissible under State v. Dessureault, 104 Ariz. 439, 454 P.2d 981 (1969).

Appellant's attack on the involvement of the juvenile court in the accusatory process rests upon the Equal Protection and Due Process Clause of the Fourteenth Amendment of the United States Constitution and Article II, Section 4, and Article VI, Section 26 of the Arizona Constitution. The effect of these provisions is to guarantee to all who are brought before the bar of justice, a fair and impartial trial by a fair and impartial judge. With that premise we cannot disagree for such a right '. . . is a valuable substantive right originating in the common law and recognized by statute in both criminal and civil cases.' Marsin v. Udall, 78 Ariz. 309, 312, 279 P.2d 721, 723 (1955). Appellant concludes that the supervisory relationship between the juvenile court judge and the court staff violate the premise that an impartial trier of fact is indispensable to the integrity of the adjudicatory process. With that conclusion we cannot agree.

The juvenile court system was originally conceived as an attempt to perform a rehabilitative function. By not treating the juvenile as a criminal, there was the possibility of preventing a future life of crime. Accordingly, rules of procedure were relaxed in order to achieve this rehabilitative goal. Over a period of years, the question arose as to whether the juvenile was receiving the worst of both worlds. Neither adequate facilities and staff nor time available for rehabilitation, nor rules of procedure could be equated with the fundamentals of due process of law. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), seemingly answered that question. Thus, Gault, Supra, mandated certain changes in procedure in order to comply with due process requirements. Yet, there is nothing in Gault to foreclose the possibility that the rehabilitative function and due process could function together. The juvenile code of this state, we believe, has made the two compatible and functional.

We have read many of the cases cited to us by appellant. Certain categories arise in which the right to an impartial finder of fact has been violated. First, those cases in which the judge has become so personally involved as to be rendered unfit. In Mayberry v. Pennsylvania, 400 U.S. 455, 91 S.Ct. 499, 27 L.Ed.2d 532 (1971), the defendant repeatedly insulted the trial judge and interrupted the trial. The court held that in a criminal contempt charge a defendant should be given a public trial by a judge not vilified by the contemnor. (See also Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), where the trier of fact was both the victim of appellant's statement and the prosecutor that brought charges seeking dismissal). This category is not applicable for describing the juvenile justice system in this state. Furthermore, when a party feels that the juvenile judge is or may be biased against him, an affidavit of bias and prejudice may be filed pursuant to A.R.S. § 12--409. Such an affidavit can be used to disqualify the juvenile judge. Anonymous v. Superior Court in and for Pima County, 14 Ariz.App. 502, 484 P.2d 655 (1971).

A second line of cases deals with the situation where the prosecutorial and adjudicatory functions become intertwined. In Figueroa Ruiz v. Delgado, 359 F.2d 718 (1 Cir., 1966), the Commonwealth of Puerto Rico provided no prosecutors in the District Court, and the judge introduced the government's evidence and conducted cross-examination for the government. See also Wong Yang Sun v. McGrath, 339 U.S. 33, 70 S.Ct. 445, 94 L.Ed. 616 (1950). Again, the Juvenile Code of this state does not allow the duties of the judge to merge with the duties of the prosecutor. A.R.S § 8--233.

A third category of cases concerns situations in which the trier of fact has participated in a preliminary finding of fact. In In re Murchison, 349 U.S. 133, 75 S.Ct. 623, 99 L.Ed. 942 (1955), the United States Supreme Court found that a single judge grand jury was such a part of the accusatory process that the judge '. . . cannot be, in the very nature of things, wholly disinterested in the conviction or acquittal of those accused.' 349 U.S. at 137, 75 S.Ct. at 626. This line of cases strikes at prejudgment of the trier of fact prior to a particular case's being adjudicated. American Cyanamid v. F.T.C., 363 F.2d 757 (6 Cir., 1966), also raised the issue of prejudgment. There, the F.T.C. brought charges against certain drug companies. These charges were based, to some extent, on a report issued by a Senate subcommittee. One of the F.T.C. members had been chief counsel to the subcommittee and had helped in preparing and drafting the report. The plaintiff sought disqualification of that F.T.C. commissioner and the court agreed. The...