Smith v. State

• Decision Date: 04 April 1978
• Docket Number: 6 Div. 125
• Citation: 368 So.2d 298
• Parties: James Randall SMITH v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 298

368 So.2d 298

James Randall SMITH v. STATE.

6 Div. 125.

Court of Criminal Appeals of Alabama.

April 4, 1978.

Rehearing Denied May 2, 1978.

Judith S. Crittenden, Birmingham, for appellant.

William J. Baxley, Atty. Gen., and Barry V. Hutner, Asst. Atty. Gen., for the State, appellee.

BOWEN, Judge.

This is an appeal from a conviction for rape and a twelve year sentence. At trial and on appeal the appellant is represented by court appointed counsel.

On January 18, 1975, the prosecutrix went to Robby's Game Room in Tarrant City, Alabama. Around 10:00 o'clock that night a friend of hers introduced her to the appellant. The appellant and three other male youths were going to take the friend of the prosecutrix to her home and offered to take the prosecutrix home. The prosecutrix accepted the ride with her friend and her new acquaintances.

The four young men took the two girls to a wooded area where each male, including the appellant, raped the prosecutrix. The appellant physically and repeatedly struck the prosecutrix about her face in an effort to subdue her and force her to submit to the sexual assaults of himself and his friends.

Tony Smith, one of three youths who raped the prosecutrix, testified for the appellant. He stated that the prosecutrix told him that night that she had taken twelve "hits" of "speed" and was high. She voluntarily went "parking" with them into the wooded area to drink some beer and, after they stopped, voluntarily went "walking around" with the appellant and another youth, Charles Darwin. Smith testified that after the prosecutrix returned to the car she voluntarily had sex with him. He did not notice any bruises or swollen areas on her face that night.

I

The appellant contends that he was placed in double jeopardy by his trial because of the findings and adjudications made in juvenile proceedings in Family Court which preceded his trial as an adult in the Circuit Court of Jefferson County.

The appellant's contentions necessitate a review of the procedure followed in this case. On January 21, 1975, a complaint was filed in the Family Court of Jefferson County charging that the appellant, a fourteen-year-old child, was "delinquent" in that he did rape the prosecutrix.

An "adjudicatory hearing" was held in the Family Court of Jefferson County at which time the complaints were read to the appellant who entered a plea of "truth", admitting the allegations of each complaint. On that basis the judge of the Family Court entered the following order.

"This cause coming on to be heard, and the said child being present in court, and his father, mother and attorneys being present with him, and the court having first explained the nature of the proceedings to each of them; said child admits the allegations contained in the petition filed herein. Having heard the evidence in this cause, including the following witnesses, ______ and having considered same, and it appearing to the court that said child is a delinquent child, male, under 16 and about 14 years of age, and in need of the care and protection of this court as alleged in the petition; it is therefore ordered, adjudged and decreed by the court that the said child is a ward of this court, and it further appearing to the court that it is to the child's best interest, the said child is hereby committed to Juvenile Hall and this case is continued to April 4, 1975, at 2:00 P.M. for disposition."

On April 4th a "transfer hearing" was had and the appellant was ordered transferred to the jurisdiction of the Circuit Court to be treated as an adult. The record reflects that:

"Upon hearing the sworn testimony, including that of Patricia Ann McCrary, Vickie Triplett, Joan Mims, and James Dupree, the records and exhibits admitted in evidence, the oral arguments of the attorneys and careful consideration of the same, and

"Upon it being shown that said child was placed on probation by this court on April 5, 1974, that he was discharged from probation on August 16, 1974, that he was found delinquent due to an act of homicide on December 23, 1974, at which time he was committed to the Alabama Boys Industrial School from which he escaped on January 10, 1975, and on this date he has admitted to two charges of Rape and two charges of Assault and Battery which displayed a severe lack of self-control over his emotions and behavior,

"The Court is convinced that said minor cannot be made to lead a correct life and cannot be properly disciplined under the Juvenile Court Laws, the matter is hereby transferred to the Criminal Division of the Tenth Judicial Circuit of Alabama as provided by Title 62, Section 325, Code of Alabama 1940, recompiled 1958."

The May 1975 session of the Grand Jury returned an indictment against the appellant. Upon arraignment the appellant pled not guilty.

On the day the case was scheduled for trial defense counsel filed a Plea of Autrefois Convict and a Motion to Quash the indictment, both pleadings raising a defense of former jeopardy.

Relying on Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the thrust of the appellant's argument is that he was first convicted and adjudged guilty of the rape in Family Court and thereafter again tried and convicted in Circuit Court.

Testimony was presented on the plea and the motion. John Fox, a deputy public defender, represented the appellant in Family Court. He testified that an "Adjudicatory Hearing" was held in that court. That hearing is for the purpose of taking pleas either a "true" or a "not true" plea. A "true plea" is the same as a guilty plea in "adult court", and an admission of the charges pending against the minor. Testimony may also be taken at an adjudicatory hearing and some people refer to is as a "trial".

At the hearing on the motion to transfer, testimony was taken as to whether the appellant could be made to lead a "correct life".

The Deputy District Attorney who represented the state in the Family Court testified that the purpose of an adjudicatory hearing is to determine the guilt or innocence of the defendant or the truth or absence of truth of the allegation of the petition. At the appellant's adjudicatory hearing, the allegations of the petition were read to him and he admitted to all the charges involved, which was the equivalent of a guilty plea. After this hearing the state filed a Motion to Transfer the appellant to Circuit Court to be treated as an adult.

Additional testimony on this issue was presented on the hearing of the Motion for new trial. Jim Shaw had been retained by the parents of the appellant to represent their son in Family Court. He testified that at the transfer hearing

"Patricia McCrary and Vickie Triplett and they testified as to the alleged rapes and what had happened to them. They also Mrs. Mims of ABIS (Alabama Boys Industrial School) testified as to what she would recommend as to how he should be treated and she recommended that he be placed in the positive learning center as soon as it reopened."

This testimony was presented although the appellant had already entered a plea of guilty to the charges.

"Then there was James Dupree, Director of Positive Learning Center, also testified that he would be willing to accept Randy (the appellant) into this facility. The only question that was before Judge Bell when I was representing Randy was whether or not Randy was to be kept within the Juvenile Court process or to be sent to Circuit Court. There was no question of whether or not he was guilty at that point left open."

Following the hearing and argument on the issue of jeopardy, the trial judge overruled the plea and the motion and put the appellant to trial.

In Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the United States Supreme Court held that to subject a defendant to an adjudicatory proceeding whose object is to determine whether the juvenile has committed acts that violate a criminal law as distinguished from a proceeding limited to the question of transfer, and then, instead of sentencing, transfer him to an adult trial, amounts to double jeopardy. Breed does not preclude separate juvenile and adult proceedings but closely limits the issues which may be considered in the first proceeding. If the juvenile court determines that the juvenile has actually violated a criminal law, adjudges the juvenile delinquent and unfit for treatment as a juvenile and transfers him to the Circuit Court for treatment as an adult offender, jeopardy has attached under the doctrine announced in Breed, and the juvenile would be placed in double jeopardy by trial in the Circuit Court. The juvenile court is only authorized to make a finding of probable cause concerning the specific act leading to the delinquency petition before transferring the juvenile for trial in Circuit Court. Boyd v. State, Ala., 341 So.2d 680 (1977). See also Government of Virgin Islands v. Smith, 558 F.2d 691 (3 Cir. 1977). Any adjudicatory finding of delinquency in the juvenile court that the juvenile had violated a criminal statute would cause jeopardy to attach. Breed, supra; Boyd, supra.

Before deciding whether an adjudicatory finding was made in the Family Court, we must first determine whether Breed v. Jones is applicable under the facts of this case. While the appellant's juvenile hearing was held before Breed was decided, his criminal trial occurred after.

On March 14, 1975, the appellant admitted the charge of rape and was adjudged delinquent by the Family Court. On April 4th, that court transferred the appellant to the Criminal Division of the Circuit Court. An indictment was returned against the appellant on May 9, 1975.

On May 27, 1975, the United States Supreme Court decided Breed v. Jones, supra. The court made no comment with respect to retroactivity. The defense of former jeopardy announced in Breed was rejected by the Circuit Court and the appellant was tried and convicted in November of 1975.

Since May 27,...