R. R. P., In Interest of, 37812

• Citation: 545 S.W.2d 351
• Decision Date: 23 November 1976
• Docket Number: No. 37812,37812
• Parties: In the Interest of R. R. P., a child under 17 years of age, Appellant. . Louis District, Division. Three
• Court: Court of Appeal of Missouri (US)

Page 351

545 S.W.2d 351

In the Interest of R. R. P., a child under 17 years of age, Appellant.

No. 37812.

Missouri Court of Appeals, St. Louis District, Division. Three.

Nov. 23, 1976.

Motion for Rehearing and for Transfer to Supreme Court

Denied Dec. 20, 1976.

Application to Transfer Denied Feb. 14, 1977.

Robert C. Babione, Public Defender, Robert G. O'Blennis, Asst. Public Defender, St. Louis, for appellant.

Joan M. Burger, Patricia Karman, St. Louis, for respondent.

SIMEONE, Judge.

This is an appeal from an order of the Juvenile Court entered on October 14, 1975, finding that appellant, R. R. P., came within the jurisdiction of the juvenile court under the provisions of § 211.031(1)(c) and (d), RSMo, in that he was found to be an accessory after the fact of the offense of attempted robbery. He urges two points on this appeal and prays that the cause be reversed and remanded for a new adjudicatory hearing. For reasons hereinafter stated, we affirm.

This proceeding began with the filing of a petition by the juvenile officer, alleging that R.R.P. came within the provisions of § 211.031(1)(c) and (d) for the reason that on September 25, 1975, he 'feloniously, unlawfully, and willfully' attempted to 'rob, steal, take and carry away the personal property of John Chapman.' Other allegations sufficient to charge attempted robbery were also made. The petition informed the juvenile that he acted 'contrary to Section 560.120 (robbery in the first degree), and 556.150 (attempt) Missouri Revised Statutes.' The petition prayed that the court inquire into the matter and make such orders as required. An attorney was appointed for R. R. P. and eventually an adjudicatory hearing was held before a commissioner.

At the hearing, the victim, John Darryl Chapman, a young man of twenty, testified that at about 7:30 in the evening on September 25, 1975, he was walking home having 'cut through' Tower Grove Park and while on Arsenal Street '(t)hree people (males) jumped me and asked me for my money.' One was tall and two were short. One was also 'kinda fat.' 'They asked me for ten dollars and I told them I didn't have it.' Chapman testified that R. R. P. asked him for money. All three of them then wanted to start a fight. Chapman walked away and went into a nearby alley. In the alley they started to chase him, caught him, and two of them knocked him down and 'tried to go in my pocket.' When he was on the ground, '(t)his one kicked me,' referring to the appellant, R. R. P. Chapman also testified that on that evening R. R. P. was wearing a '(b)lue knited (sic) cap and orange tea (sic) shirt.' Chapman said R. R. P. kicked him 'twice.' No property was taken and Chapman was not injured. Chapman ran, went home, rested for awhile, went 'back out' and 'flagged down' a police officer. Chapman gave a description of the three males and indicated that one was a '(t) all male, (wearing a) blue cap, orange shirt.' On cross-examination Chapman first stated that he got a 'good look' at appellant's face, but then indicated that he identified him by the clothes he was wearing. But on re-direct he again stated that R. R. P. kicked him twice and that R. R. P. was very close to him and he 'got a look at his face.' He recognized him from 'his face, as well as his clothes.'

After Chapman informed the police of the events, Officer Allen C. Morris of the Metropolitan Police received a 'description placed on the air of three subjects wanted for an attempted robbery. . . .' The officer was in his patrol car and observed a person, later identified as R.R.P., standing in front of a supermarket near the place where the assault occurred. The youth was wearing a 'blue knit type cap and a(n) orange tea (sic) shirt, and dark trousers.' The officer made a U-turn; R. R. P. entered the store and walked to the rear. The officer got out of the car and followed him. He apprehended the appellant, informed him that a 'description was placed out on the air, and that he matched the description of the subject wanted for assault and attempt(ed) robbery.' Appellant was placed in the rear of the patrol car together with another person who was also detained for the offense. Officer Morris requested that the victim, Chapman, be brought to the scene for 'identification of the suspect.' When Chapman arrived, he identified R. R. P. who was then wearing a blue knit cap and an orange T-shirt. Chapman could not identify the other person who was detained; hence, he was released. Chapman, in his testimony, '(o)nly knew one of them' in the police car and that was R. R. P.

At the adjudicatory hearing R. R. P. testified in his own behalf. He admitted being with two other persons that evening on Grand Avenue. He stated he was with 'Robert D_ _ and a kid named Steve.' When Chapman came out of the park, 'Rober told Steve that he (Chapman) had ten dollars, and to go and get him . . .' The two ran across the street, and Steve 'ran and kicked him. That's when he (Chapman) went in the alley and Robert, and Steve went in the alley. I stayed on Grand.' After that, R. R. P. saw Robert run out of the alley and he and Robert 'ran up Grand' and 'walked back down.' It was at that point that 'Robert D_ _ said he was cold because (sic) he had a short sleeve shirt on, and I (R. R. P.) changed clothes with him . . ..' When appellant saw Officer Morris make the U-turn, he stated that 'I realized that's why Robert wanted to change clothes with me, so I got scared, and went in the A & P when he got me.' It was R.R.P.'s testimony that he was not wearing a blue cap and orange T-shirt but rather was wearing a blue jean jacket and that he traded clothes with Robert because Robert was cold. The officer apprehended R. R. P. and Robert, placed them in the rear of the patrol car, and Chapman identified R. R. P. but could not identify Robert. Robert was released, but R. R. P. was held.

On cross-examination, R. R. P. admitted he had a 'pretty good idea' what Robert and Steve were up to when they ran in the alley, and admitted that even though he knew that Robert 'had possibly beat up or robbed John Chapman' he still traded clothes with him. He admitted that when identified by Chapman he did not inform the police that he was not wearing his own clothes, but did so at the district station. While at the district station the officer made a phone call to R. R. P.'s mother who informed him that he had been wearing a blue jean jacket.

At the end of the adjudicatory hearing, the court announced:

'Based on the testimony offered . . . it is the finding of the Commissioner that the juvenile comes within the provisions of subdivision C & D of paragraph 1 of section 211.031 . . . and finds this beyond a reasonable doubt by reason of being an accessory after the fact of--'

At that point defense counsel interrupted and the following occurred:

(Defense Counsel): '--I don't think you can find him guilty of anything--anything other than what was found. That would be for the Court of Appeals to decide.'

THE COURT: 'That's exactly the situation. I'm not so sure I don't agree with you . . . Certainly the articles of adult law would definitely agree with you. I find it difficult, within the context of these facts, to acquit your client, and it seems the best way to deal with your client is to deal with your client on the basis of what he says he's responsible for; which is accessory after the fact of assault with intent to rob. The Court of Appeals may not share my rather broad approach to this, but so long as the statues (sic) say this is a Court of Equity I will--' (Defense Counsel): '--but, I believe the Court says, due process is--that's when there is--when a juvenile is being adjudicated for the same thing that an adult would, would normally be a crime for an adult or is on trial for the same offense, all of the--generally, all of the rights that are accorded to the adult, except for the right of a jury, would accrue to the benefit of the juvenile, and I believe one of the benefits is that you can't be convicted of a crime or (you are?) not charged with--'

The Commissioner thereupon recommended that R. R. P. be placed under the care of the Division of Youth Services, but suspended the order and placed R. R. P. under court supervision in his mother's home on condition that he (1) comply with the official rules of court supervision, (2) meet with the deputy juvenile officer, (3) attend school daily, (4) maintain a curfew and (5) enroll in the 'restitution' program of the court. This recommendation was adopted and approved by the judge of the juvenile court. It is from this order R. R. P. has appealed.

Appellant makes two points. He contends that the trial court erred (1) in finding 'beyond a reasonable doubt that the juvenile was guilty of being an accessory after the fact of assault with intent to rob, (because) the juvenile was not given sufficient notice in advance that he was being charged as an accessory after the fact of assault with intent to rob' and (2) in finding him guilty of being an accessory after the fact 'in that the only evidence of the crime was circumstantial and that the circumstantial evidence failed to preclude all reasonable theories of defendant's innocence.'

As the first point he argues that Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) holds that due process requires that the juvenile be given notice of the alleged misconduct with particularity sufficiently in advance so that he may have a reasonable opportunity to prepare a defense. He argues that there was no indication that he would be tried 'as other than a principal' and that the petition did not indicate that he was 'acting in concert with anyone.' He also argues that in the criminal process an accessory after the fact commits a separate and distinct offense from the crime of the principal, State v. Key, 411 S.W.2d 100, 103 (Mo.1967), and cannot be charged or punished as a principal offender, State v. Umble, 115...