Samuel M., In re

• Decision Date: 09 March 1982
• Docket Number: No. 125,125
• Citation: 441 A.2d 1072,293 Md. 83
• Parties: In re SAMUEL M.
• Court: Maryland Court of Appeals

Page 83

293 Md. 83

441 A.2d 1072

In re SAMUEL M.

No. 125.

Court of Appeals of Maryland.

March 9, 1982.

Michael R. Braudes, Asst. Public Defender (Alan H. Murrell, Public Defender, Baltimore, on the brief), for appellant.

Stephen B. Caplis, Asst. Atty. Gen (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before SMITH, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ., and J. DUDLEY DIGGES (Retired), Specially Assigned, Judge.

SMITH, Judge.

Petitioner Samuel M. challenges the validity of Maryland Code (1974, 1980 Repl.Vol.) § 3-817(c), Courts and Judicial Proceedings Article, in his effort to avoid trial under the regular criminal procedure. He claims it is "unconstitutional insofar as it imposes a presumption of guilt for purposes of waiver of juvenile jurisdiction." ¹ We disagree.

A petition filed in the Circuit Court for Prince George's County claimed that Samuel M. was delinquent. The specific delinquent acts alleged were assault with intent to rob, assault and battery, an attempt to steal property having a value of less than $300, and molesting and threatening a student with bodily harm on school grounds in the immediate vicinity of a school in violation of Code (1978) § 26-101(b), Education Article. ² The State's Attorney for Prince George's County asked that juvenile jurisdiction be waived. The judge said after a hearing and argument:

"The Court in considering the question of waiver of jurisdiction has five criteria that it must consider. These criteria must be considered each in relation to the other. There is no mathematical score. There is no quantitative score.

"The age of the child. He is sixteen and a half years of age. He is charged with an offense which is a serious crime against a person. Had he been charged with robbery rather than attempted robbery, of course the matter would not be here because since he is sixteen and a half years of age, the matter would be tried in the first instance in the adult court.

"Therefore, that militates neither for or against waiver. It simply means that the State does have facilities to deal with someone who is his age on capital offenses, and there are life offenses and for the crime of armed robbery.

"Mental and physical condition of the child. The Court does note from the report that he does have some health problems including asthma, including vision problems, having traits of sickle cell anemia.

"The Court just by looking at him, however, is able to say that he can be handled either in the adult facility or juvenile facility. Therefore, the question there is again one that can be resolved in either court.

"The nature of the offense and alleged participation in it. I have been handed the police report. His alleged participation in it is speculative at best. It does seem to be a great deal of circumstantial evidence but, of course, the statute requires me to assume for the purposes of this hearing that he has committed the offense for which he is charged. So, on the surface again this is a serious offense which can be handled either in the adult facility or the juvenile facility.

"Public safety. If in fact he committed this offense, this is a major consideration which would militate in favor of waiver, I would think, because the robbery was on school property which upsets our entire school system which causes everyone who has children in the school system and everyone who deals with the public schools great concern.

"So, as in most of the cases, the question is whether or not he is amenable to treatment. He is not a typical sixteen and a half year old boy. He is a young man who has had trouble in his life, some attributable to him, some not attributable to him.

"I notice from this report he was placed by Catholic Charities in the home of Mr. and Mrs. Gilbert. The allegation is that he left there taking two rings. Again, I am not giving particular importance to that except from the standpoint of dealing with the issue of whether or not he is amenable to treatment.

"He was at our most secure facility, the Maryland Training School, for a period of 30 days where he would be given the opportunity to see what the Training School was like, see what incarceration was like. That apparently has had little, if any, effect on him.

"Frankly, I think that because of his sophistication, he is not amenable to treatment. The Court will waive its exclusive jurisdiction to the adult court." (Emphasis added.)

The juvenile appealed to the Court of Special Appeals. In order that we might address this issue of public importance, we issued the writ of certiorari ex mero motu prior to argument in the intermediate appellate court.

We recently dealt with another aspect of § 3-817 in the case of In re Randolph T., 290 Md. 97, 437 A.2d 230 (1981). At that time we examined some of the earlier Maryland cases relative to waiver of juvenile jurisdiction. We referred in n.4 at --- to the evolution of the Maryland statute pertaining to juvenile offenses. We also examined the due process holdings in juvenile matters by the Supreme Court in such cases as In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); and Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966).

Citing In re Randolph T, petitioner recognizes that the purpose of the waiver proceeding (or "transfer" proceeding as it is known in many states) is to determine whether or not the child is a fit subject for juvenile rehabilitative measures. Referring, among others, to certain of the cases which we reviewed in In re Randolph T., he also recognizes that not all of the factors need be resolved against the juvenile in order to justify a waiver. He contends, however, citing Manley v. Georgia, 279 U.S. 1, 49 S.Ct. 215, 73 L.Ed. 575 (1929); Mahoney v. Byers, 187 Md. 81, 87, 48 A.2d 600 (1946); and 1 Wharton's Criminal Evidence § 94, at 159 (13th ed. C. Torcia 1972), that "(o)n grounds of denial of due process, 'an irrebuttable or conclusive statutory presumption is ordinarily held unconstitutional.' " He goes on to claim:

"The irrebuttable presumption of guilt in waiver hearings is invalid because the overall test for waiver is so constructed that the presumption alone will inevitably weigh heavily in favor of waiver, a disposition which the applicable case-law recognizes as carrying the potential for 'dire consequences'. Specifically, the presumption alone will frequently cause the factors of public safety and the nature of and child's participation in the crime to be resolved in favor of waiver. ² Because the law is clear that waiver is permissible even if all of the statutory criteria do not favor it, it will accordingly be permissible to waive juvenile jurisdiction even if the State has not demonstrated that the child is not amenable to juvenile rehabilitative measures, which is theoretically the most important factor."

He adds in n.2:

"In the instant case, the presumption alone caused the hearing judge to conclude that the public safety 'is a major consideration which would militate in favor of waiver, ....' "

It will be noted that this argument does not correctly set forth the findings of the judge.

As an appendix to its decision in Kent, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84, the Supreme Court suggested the following criteria to be used in determining whether to waive jurisdiction over a child and transfer him to the regular criminal procedure:

"1. The seriousness of the alleged offense to the community and whether the protection of the community requires waiver.

"2. Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner.

"3. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons especially if personal injury resulted.

"4. The prosecutive merit of the complaint, i.e., whether there is evidence upon which a Grand Jury may be expected to return an indictment ....

"5. The desirability of trial and disposition of the entire offense in one court when the juvenile's associates in the alleged offense are adults who will be charged with a crime in the (criminal court).

"6. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude and pattern of living.

"7. The record and previous history of the juvenile ....

"8. The prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile (if he is found to have committed the alleged offense) by the use of procedures, services and facilities currently available to the Juvenile Court." 383 U.S. at 566-67, 86 S.Ct. at 1059-60.

It is of interest that S. Davis, Rights of Juveniles § 4.3, at 4-14 (1981), comments, "A comprehensive survey of some 207 juvenile courts in the country showed that two factors were cited by the courts as weighing most heavily in the decision to waive jurisdiction: the seriousness of the offense and the past history of the juvenile." He further states:

"One of the criteria suggested by the Supreme Court in Kent was the prosecutive merit of the complaint, i.e., whether there is probable cause to believe the child committed the offense charged. A number of states, however, require a finding of probable cause or 'reasonable grounds' as an additional requirement for waiver, quite apart from the non-amenability finding. In A Juvenile v. Commonwealth the Supreme Judicial Court of Massachusetts said: 'Although we hold that an evidentiary hearing is not constitutionally mandated, we believe that the preferable approach, in light of the importance of a decision to transfer a juvenile, is for there to be a determination of probable cause at the transfer hearing.' (Emphasis added.) It should be noted that present Massachusetts law requires a determination of probable cause to be made at...