S.L.H., In Interest of

• Decision Date: 16 July 1992
• Docket Number: No. A92A0152,A92A0152
• Parties: In the Interest of S.L.H., a child.
• Court: Georgia Court of Appeals

Page 43

422 S.E.2d 43

205 Ga.App. 278

In the Interest of S.L.H., a child.

No. A92A0152.

Court of Appeals of Georgia.

July 16, 1992.

Reconsideration Denied July 31, 1992.

Certiorari Denied Nov. 16, 1992.

Harry N. Gordon, Dist. Atty., Audrey A. Butler, Asst. Dist. Atty., for appellant.

Shoemaker & Associates, Curtis G. Shoemaker, Athens, for appellee.

ANDREWS, Judge.

The State appeals the order of the juvenile court granting the plea in bar of S.L.H., premised solely on alleged violation of the prohibitions of OCGA § 16-1-8(a)(2).

Although no transcript of the proceedings at issue has been provided for our review, the transcript of the hearing on the plea in bar reveals that a juvenile petition alleging that S.L.H. was delinquent by virtue of having committed acts which, if done by an adult, would have been aggravated assault, armed robbery, and theft by taking of a motor vehicle. A first hearing was held and the case continued for a week because new counsel was appointed for S.L.H.

On May 31, 1991, at the second hearing, both sides announced ready; all witnesses were sworn; and the first witness took the stand. This witness had been charged with crimes in superior court for the same acts forming the basis of S.L.H.'s delinquency petition. The juvenile court therefore asked the witness only preliminary questions about his status and apparently determined that the witness' counsel should be present despite the fact that the witness had agreed to testify after being advised of his Fifth Amendment rights. However, because the witness could not tell the court if he had legal representation, the judge gave the State one hour to make this determination and contact counsel. A timely determination could not be made and the State understood the judge to rule that the witness would not be allowed to continue with his testimony despite the waiver of his Fifth Amendment rights. The State therefore moved for a continuance which the judge granted over the objection of S.L.H. The judge apparently stated the case was "continued or adjourned by the court to be reconvened" to allow the State to resolve the issue with the witness.

During the hearing on the plea in bar, the juvenile court labelled as "accurate" the State's summarization of the events at the original proceeding, including the State's assertion that the witness was ready to testify, but the juvenile court "felt that we did need to speak to his counsel to be aware of what Fifth Amendment rights would be of the [witness]" and that "it was merely ... a continuation of [the hearing at which the witness was called] and was not one where [the juvenile court] entered some type of adjudication." The juvenile court also described the events as "we stopped for awhile. Now we're picking it up again." But later the court indicated that, without the testimony of this witness, he did not believe the State had a case that day, since another individual also charged and represented by counsel had decided not to testify. The juvenile court concluded at the hearing on the motion that the State "asked for a continuance ... either you needed to fold your tent and leave and say, we're going to dismiss it or you've got to ask for a continuance because you can't prove your case."

The delinquency hearing reconvened 39 days later, on July 9, 1991, when the hearing on the plea in bar was held on S.L.H.'s claim that it was a violation of OCGA § 16-1-8(a)(2) to hear the matter after it was continued. The juvenile court dismissed the case based on that section on the ground that it had been "terminated improperly."

It must first be determined whether OCGA § 16-1-8(a)(2), which speaks of "prosecution," "crime," "conviction," and "acquittal," is applicable to juvenile proceedings.

OCGA § 15-11-38(a) provides that "[a]n order of disposition or other adjudication in a proceeding under this article is not a conviction of a crime." Treatment and rehabilitation rather than punishment are the goals when delinquency is established. OCGA §§ 15-11-2(7) & 15-11-1. "The juvenile court is a civil court, not a criminal court.... [O]ne under the prescribed age ... is not prosecuted as a criminal, but is dealt with as the law provides for juveniles who violate the law." K.M.S. v. State of Ga., 129 Ga.App. 683, 684, 200 S.E.2d 916 (1973).

The legislative history of OCGA § 16-1-8, part of which is contained in Marchman v. State, 234 Ga. 40, 42, 215 S.E.2d 467 (1975) reversing Marchman v. State, 132 Ga.App. 677, 681, 209 S.E.2d 88 (1974), gives no indication that it was to apply also to juvenile proceedings. See Ga.Code Ann. § 26-507, Committee Notes. See also the minutes of the meetings of the Criminal Law Study Committee formed in 1961, housed in the State Archives. "[I]t is clear from the entire statute that the General Assembly sought to treat matters of juvenile delinquency as a class of conduct separate and distinct from conventional criminality." T.L.T. v. State of Ga., 133 Ga.App. 895, 897(1), 212 S.E.2d 650 (1975).

However, as this court acknowledged in that case, "From [the Juvenile Court Code] and the decisions we conclude that the juvenile charged with 'delinquency' is entitled by right to have the court apply those common law jurisprudential principles which experience and reason have shown are necessary to give the accused the essence of a fair trial. We must not only furnish the ritual of justice, but we must provide its substance." Id. at 899, 212 S.E.2d 650. (Emphasis supplied.)

Relying on T.L.T., this court in In the Interest of J.H.M., 202 Ga.App. 79, 80, 413 S.E.2d 515 (1991) found that the evidentiary rule in OCGA § 24-4-8 applies to juvenile delinquency proceedings. This conclusion is buttressed by OCGA § 24-1-3, which provides that the rules of evidence apply in all courts and in all trials unless otherwise expressly provided by statute. This rationale is not available for the construction of OCGA § 16-1-8.

That section "sets out in detail when a second prosecution is barred. These are matters of procedure. They prevent an accused from being unduly harassed by or threatened by successive criminal prosecutions." (Emphasis supplied.) State v. Estevez, 232 Ga. 316, 319, 206 S.E.2d 475 (1974). "The 1968 Georgia Criminal Code has expanded the proscription of double jeopardy beyond that provided for in the United States and Georgia Constitutions." Id. at 317, 206 S.E.2d 475.

While the constitutional protections against double jeopardy apply to juvenile proceedings, the additional and expanded statutory protections afforded by OCGA § 16-1-8(a)(2) do not rise to the level of "those common law jurisprudential principles which experience and reason have shown are necessary to give the accused the essence of a fair trial." T.L.T., supra 133 Ga.App. at 898(2), 212 S.E.2d 650. See generally J.H.M., supra, 202 Ga.App. at 81, 413 S.E.2d 515. (Andrews, J., dissenting.)

Judgment reversed.

CARLEY, P.J., and POPE and JOHNSON, JJ., concur.

SOGNIER, C.J., and BEASLEY and COOPER, JJ., concur specially.

McMURRAY, P.J., and BIRDSONG, P.J., dissent.

BEASLEY, Judge, concurring specially.

I agree with the reversal of the judgment. But I concur with Division 1 of Presiding Judge Birdsong's dissent. However, I do not concur in its Division 2, which relates to the application of the statute in this case.

1. First, a note about the dissent's Division 1. The court dismissed the petition after concluding that "the former prosecution ... was terminated improperly." It is notable that the juvenile's "plea in bar," a device used in criminal proceedings, sought dismissal on the grounds of the Fifth Amendment to the United States Constitution and the statute, OCGA § 16-1-8(a)(2). There was no pursuit of, nor ruling on, the federal constitutional claim, so the sole preliminary issue is whether this statute governing criminal procedure applies to proceedings pursuant to OCGA § 15-11-28 on petitions alleging delinquency under OCGA § 15-11-25 in juvenile court.

Although I surmised in Smith v. State, 173 Ga.App. 728, 732, 327 S.E.2d 839 (1985), Beasley, J., concurring specially, that because of the language in OCGA § 16-1-8 and its focus, it did not apply to juvenile delinquency proceedings, I agree with the further analysis and conclusion in this case that it does.

2. Applying OCGA § 16-1-8, the record shows that the proceeding on May 31 on the petition alleging delinquency was not "terminated improperly". It was a delay while the state undertook the court-required investigation into who, if anyone, represented the witness and to have that attorney counsel the witness on his Fifth Amendment rights before he testified. What occurred was akin to the circumstances in Sessions v. State, 131 Ga.App. 379, 206 S.E.2d 99 (1974). A continuance to afford counsel an opportunity to comply with the court's direction was held not to show a termination and attempt to retry the defendant so as to jeopardize her twice.

At the outset of the hearing on the "plea in bar," the court characterized the earlier proceeding to have been "either continued or adjourned by the Court to be reconvened ... I think at that time I said I'd give the State the benefit of an adjournment and to reconvene the case if there is a distinction in those." After the assistant district attorney summarized the earlier proceeding, the court stated: "[W]e stopped for awhile. Now we're picking it up again." The court reiterated that what caused the cessation at that time was that it would not permit the witness to testify before first being advised by counsel regarding the ramifications of self-incrimination.

A trial court has discretion to grant a continuance. Vining v. State, 195 Ga.App. 816, 817 (2), 395 S.E.2d 17 (1990). This extends even after the movant has announced ready at trial, Bennett v. State, 186 Ga.App. 832 (2), 368 S.E.2d 789 (1988), and after issue is joined. Whatley v. State, 162 Ga.App. 106, 290 S.E.2d 316 (1982). The trial...