Redman v. State

• Decision Date: 21 May 1979
• Docket Number: No. CR79-33,CR79-33
• Citation: 580 S.W.2d 945,265 Ark. 774
• Parties: Michael REDMAN and Milton Redman, Jr., Appellants, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 945

580 S.W.2d 945

265 Ark. 774

Michael REDMAN and Milton Redman, Jr., Appellants, v. STATE of Arkansas, Appellee.

No. CR79-33.

Supreme Court of Arkansas, In Banc.

May 21, 1979.

Robert S. Blatt, Fort Smith, for appellants.

Steve Clark, Atty. Gen. by Ray E. Hartenstein, Asst. Atty. Gen., Little Rock, for appellee.

FOGLEMAN, Justice.

This appeal comes from a judgment revoking suspension of sentences of appellants imposed upon them in 1974 on charges of burglary and grand larceny and revoking probations granted on a separate charge of burglary. They were sentenced to five years in the Department of Corrections on each of the charges of burglary and grand larceny, but four years of the concurrent sentences were suspended upon condition of their good behavior. On the charge of burglary, they were placed on probation for five years, conditioned upon their good behavior. The petition for revocation was filed by the state on August 31, 1978. It was based upon the allegations that appellants had violated the terms of their probation and of the suspension of their sentences by committing burglary in Sebastian County on August 30, 1978. An amended petition was filed in November, 1978. It added an additional basis for revocation, that is, charges of burglary and theft of property on October 20, 1978, in Crawford County. Both petitions were granted. As a result, appellants were sentenced to terms of 21 years on revocation of their probations. They were sentenced to terms of four years on each count on the original burglary and grand larceny charges. The sentences on the latter charges were to run concurrently, but they were consecutive to the sentences on the revocation of probation. The pleas of appellants on the charges resulting in the original sentences had been nolo contendere. The three points alleged for reversal, as stated by appellants, are:

I

THE TRIAL COURT ERRED IN DENYING DEFENDANT MILTON REDMAN, JR.'S MOTION TO SET ASIDE HIS ORIGINAL PLEAS ON THE GROUND THAT HE DID NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY ENTER THE PLEAS BECAUSE HE WAS ONLY 13 YEARS OF AGE IN 1974 WHEN THE PLEAS WERE ENTERED.

II

THE TRIAL COURT ERRED IN FINDING THAT THE DEFENDANT, MICHAEL REDMAN, VIOLATED HIS PROBATION AND SUSPENDED SENTENCES BY BEING INVOLVED IN AN ALLEGED BURGLARY IN SEBASTIAN COUNTY, LAVACA, ARKANSAS, BECAUSE THE STATE FAILED TO PROVE THE DEFENDANT'S INVOLVEMENT BY A PREPONDERANCE OF THE EVIDENCE.

III

THE TRIAL COURT ERRED IN ADMITTING INTO EVIDENCE TESTIMONY OF DAVID MATCHETT ABOUT THE OUT-OF-COURT IDENTIFICATION OF A BONE HANDLE HUNTING KNIFE AND A .22 PISTOL CYLINDER PIN FOUND IN THE POSSESSION OF DEFENDANT, MICHAEL REDMAN ALLEGEDLY TAKEN IN A BURGLARY, WITHOUT THE ITEMS BEING OFFERED OR ADMITTED IN EVIDENCE BECAUSE THE EVIDENCE WAS HEARSAY AND VIOLATED THE DEFENDANT'S RIGHT OF CONFRONTATION.

I

Milton Redman, Jr. was 13 years old when the original sentences were imposed. He was represented by the public defender, who conducted plea negotiations with the prosecuting attorney. As a result of these negotiations, the prosecuting attorney agreed to sentencing Milton to the juvenile training school. This sentence was agreeable to the trial judge, but not to Milton, who wanted to serve his sentence at the place to which his older brother was to be committed. Milton now contends that his pleas on the charges, resulting in the probation and suspension of sentence, were not knowingly, intelligently and voluntarily entered.

This ground for reversal is urged on the basis that withdrawal of the pleas should have been permitted to correct a manifest injustice. A motion for withdrawal of the pleas of nolo contendere was filed by Milton after the first petition for revocation had been filed. Milton's motion is based solely upon the allegation that he was under the age of 15 years and did not have the capacity, because of his age, to enter the pleas of nolo contendere on the original charges. We should say at the outset that we do not consider Ark.Stat.Ann. § 41-617 (Repl.1977), barring the conviction of a person for an offense if he was less than 15 years of age at the time of its commission, to be a retroactive declaration of the public policy of this state, at the time of Milton's probation and the suspension of his sentences. This was approximately 18 months prior to the effective date of § 41-617. It is argued on appeal that, even though this statute was not in effect at that time, it should have been. Obviously, the General Assembly did not think so, and we are in no position to give the act retroactivity, when the legislative branch did not do so. The presumptions against retroactivity are too great. See Snuggs v. Board of Trustees of Arkansas State Employees Retirement System, 241 Ark. 402, 407 S.W.2d 933; Chism v. Phelps, 228 Ark. 936, 311 S.W.2d 297, 77 A.L.R.2d 329.

It is also urged that since, under the common law, one 13 years old was presumed to be incapable of discerning good from evil, it necessarily follows that such a person is incapable of understanding the consequences of a plea of guilty. We do not agree with this argument. Furthermore, we are convinced that this appellant fully understood the effect of his pleas of nolo contendere. The statutory bar against prosecution of one of tender years for a criminal offense, existing at the time of the pleas, applied to one under 12 years of age. See Ark.Stat.Ann. § 41-112 (Repl.1964). We have never held that one above the age at which there is a want of criminal capacity was incapable of knowingly, intelligently and voluntarily incriminating himself or that the youth of an accused prevented his waiving constitutional rights. See, e. g., Jackson v. State, 249 Ark. 653, 460 S.W.2d 319; Mosley v. State, 246 Ark. 358, 438 S.W.2d 311; Curtis v. State, 255 Ark. 428, 500 S.W.2d 767. The common law presumption that one under the age of 14 years does not have the capacity to commit a crime is rebuttable and the prosecution can overcome it by clearly establishing the capability of such a youth to appreciate the nature and consequences of his acts and the mental capacity to know right from wrong in reference to the particular offense charged. The presumption against the capability of distinguishing good and evil is also rebuttable and it prevails only until the contrary is affirmatively shown by the evidence. It is also significant that the strength of the presumption decreases as the age of the youth approaches 14. Little v. State, 261 Ark. 859, 554 S.W.2d 312, cert. den. 435 U.S. 957, 98 S.Ct. 1590, 55 L.Ed.2d 809 (1978). We will be guided by these principles in determining the capacity of one of tender years to enter a plea of guilty or nolo contendere.

It is clear from this record that Milton had sufficient mental capacity to voluntarily, knowingly and intelligently enter his pleas of nolo contendere and that he did so enter them. The record of the proceedings on June 13, 1974, when the pleas of appellants were accepted and they were sentenced consists of 22 pages. The proceedings were conducted with the meticulous care characteristic of the judge who accepted the pleas. At the outset, Judge Wolfe addressed appellants and the adults accompanying them. This record discloses the following:

THE COURT: It is important that both of you young men stop and feel free to say, "Judge, what does that mean?" or "What does this say?"

I want to say again to you please don't hesitate to stop me and say, "Now, Judge, let me get this straight." I haven't asked your father or your grandmother. In your judgment do you feel that your sons and grandsons understand these papers?

MR. REDMAN: I believe they do.

MRS. REDMAN: I believe they do.

At the time the pleas were entered, appellants appeared with the public defender, their father and their grandmother. Milton said that his parents had plenty of time to talk to the public defender. He said that he understood that his attorney had told the court that he desired to enter a plea, that plea negotiations had been carried on between the public defender and the prosecuting attorney and that the prosecuting attorney's recommendation was not binding on the court. He was able to state and understand the terms of the sentences that his attorney had advised him would be imposed, if the court found the prosecuting attorney's recommendation to be reasonable. He said that he fully understood what would happen to him if he pleaded nolo contendere. He admitted that he had signed a comprehensive "Plea Statement Nolo Contendere," that he understood that by signing that paper he was telling the court that he understood everything on it and that there were no words on that paper that he didn't understand. He said that he had gone over a paper entitled "Statement of the Court Respecting Statutory Probation" with his attorney, that he understood it and was willing to accept its terms. He also said that he understood the content, and was willing to accept the conditions of a paper entitled "Statement of the Court Respecting a Suspended Sentence." He said that he had no questions about any of those papers and that he had been afforded plenty of time to go over the written "nolo contendere statement." He stated that he understood that the court was accepting the plea and said he had nothing to say before the sentences were pronounced and that he had no other questions about the proceeding. Milton's signatures on the statements mentioned were witnessed by the public defender.

Milton was 14 years of age on November 20, 1974. He was in the eighth grade at school, and was attending school when his pleas were accepted. He had passed the seventh grade and had never been required to repeat a grade. He testified at the revocation hearing about his previous pleas. He recalled having talked with the public defender, his father and his grandparents about the plea. He remembered the questions asked him by the sentencing judge. He acknowledged that he...