State in Interest of Aaron, In re

• Decision Date: 19 September 1972
• Docket Number: No. 3960,3960
• Citation: 266 So.2d 726
• Parties: In re STATE of Louisiana in the Interest of Jerry L. AARON, Defendant, Appellant.
• Court: Court of Appeal of Louisiana — District of US

Page 726

266 So.2d 726

In re STATE of Louisiana in the Interest of Jerry L. AARON Defendant, Appellant.

No. 3960.

Court of Appeal of Louisiana, Third Circuit.

Sept. 19, 1972.

W. T. McCain and Robert L. Kennedy, Colfax, for defendant-appellant.

Sam L. Wells, Dist. Atty., Colfax, for plaintiff-appellee.

Before FRUGE , MILLER and DOMENGEAUX, JJ.

MILLER, Judge.

The fifteen year old indigent defendant appeals the adjudication committing him to the juvenile training school for an indefinite period. His appeal to the Louisiana Supreme Court was transferred to this court. State of Louisiana v. Aaron, 262 La. 3, 262 So.2d 349 (1972). We set aside the commitment and remand the case to the Juvenile Court.

The trial testimony was not recorded and there is no statement of facts by the trial judge. The petition filed by the Juvenile Parole and Probation Officer alleged that the juvenile was on parole and had violated the conditions of parole. The prior commitment and conditions of parole are not in the record. There is no reference to a prior commitment or to conditions of parole found in the court minutes. The commitment cannot stand without evidence to establish these essential elements.

We have reviewed the record to consider the allegations of juvenile delinquency as new offenses which might support the commitment. The petition alleged four counts of delinquency. It is apparently conceded that no evidence was presented as to counts three and four. As to count one (excessive unexcused absences from school) it is contended that the witnesses did not have records to show how many absences had been excused and therefore the evidence did not establish defendant's guilt beyond a reasonable doubt. State in Interest of Taylor, 255 So.2d 361 (La.App. 1 Cir. 1971); State in Interest of Hampton, 257 So.2d 459 (La.App. 1 Cir. 1972). As to count two (that defendant failed all subjects while on probation) it is contended that a finding of parole violation based on this finding would violate the juvenile's due process.

The petition upon which this commitment is based was filed January 28, 1972. The court promptly appointed an attorney to represent the juvenile. On February 2, 1972, appointed counsel filed an extensive and detailed motion for a bill of particulars. Answers were filed by the district attorney on February 18, 1972, and supplemental answers were later filed. Trial was held on March 17, 1972 resulting in the commitment to Louisiana Training Institute.

On March 27, 1972 defense counsel filed a motion in arrest of judgment and for a new trial. On April 13, 1972 he perfected two bills of exception making the entire proceedings a part thereof and moved for an appeal to the Louisiana Supreme Court. On May 10, 1972 defense counsel notified the trial judge and the district attorney that he was applying to the Louisiana Supreme Court for writs and a stay order. This application for writs arrived in our court on May 24, 1972 along with the record which was transferred by the Louisiana Supreme Court. Defense counsel requested by letter that the application for writs addressed to the Supreme Court be considered his brief to this court. We treat that application as a brief.

According to an exhibit attached to the brief (the writ application), defense counsel prepared and submitted to the trial judge and district attorney a narrative of the witnesses testimony. There is a statement below the suggested narrative that '. . . the above statement was refused by the presiding judge who also refused to provide a written narrative fact statement.' This statement was not made by the district attorney or the presiding judge. On the contrary, the district attorney stated by brief that 'No attempt has been shown to have been made by counsel for said juvenile to have an agreed Statement of Facts.' Neither counsel appeared for oral argument so we have not questioned counsel concerning this conflict.

LSA-R.S. 13:1579 provides that in juvenile hearings

'. . . stenographic notes or other transcript of the hearings shall be required only if the court so orders and then, at the court's expense, provided, however, that any party to a proceeding may have such transcript made at his own expense.'

The state argues that this statute requires stenographic notes only when the court so orders or when one of the parties undertakes Prior to trial to have the testimony recorded at his own expense. We reject this contention.

The quoted language is ambiguous. Section 1579 provides that '. . . any party to a proceeding may have such transcript made at his own expense.' The preparation of a transcript is a step removed from the recording of testimony. The testimony is recorded at trial. Preparation of a transcript is accomplished at a later date. Since there is no requirement that the request for a transcript be lodged prior to trial, we hold that a request for a transcript made after trial must be honored. Here the request was made when the entire proceedings were made part of the juvenile's bill of exceptions.

This interpretation of § 1579 is supported by LSA-R.S. 13:1586 and 1587 which respectively provide in part:

'The court shall make or have made and keep records of all cases brought before it . . .'

'The judge of the court may employ such stenographic, secretarial and other personnel as may be deemed necessary to make the functions of the court effective and provide adequate service . . .'

We note that the ambiguity in LSA-R.S. 13:1579 was removed by a 1972 amendment and now provides that:

'. . . The hearings shall be reported or recorded by stenographic notes or a mechanical or electronic recording device. . . .'

The requirement in LSA-R.S. 13:1579 (as written prior to the 1972 amendment) that testimony be recorded is in keeping with the requirements of due process in juvenile cases as outlined in the landmark case of In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). Many of the due process safeguards theretofore applied only in adult criminal cases were extended to juvenile cases. Among these were the rights to notice of the charges, right to counsel, right to confrontation and cross-examination, and the privilege against self incrimination. The court specifically stopped short of extending to juveniles the right to have a transcript and the right to appellate review. It did so however, with the admonition that

'failure to provide an appeal, to record the proceedings, or to make findings or state the grounds for the juvenile court's conclusion may be to throw a burden upon the machinery for habeas corpus, to saddle the reviewing process with the burden of attempting to reconstruct a record, and to impose upon the Juvenile Judge the unseemly duty of testifying under cross-examination as to the events that transpired in the hearings before him.' 387 U.S. at 58, 87 S.Ct. at 1460.

In a concurring opinion, Justice Harlan stated that due process in juvenile proceedings required a written record so that an adequate review could be had. According to Justice Harlan, '. . . the court must maintain a written record, or its equivalent, dequate to permit effective review on appeal or in collateral proceedings.' 387 U.S. at 72, 87 S.Ct. at 1467.

The thrust of Gault was that '. . . neither the bill of rights nor the fourteenth amendment is for adults alone.' 387 U.S. at 13, 87 S .Ct. at 1436. The court's failure to hold that due process for juveniles required a transcript and the right to appellate review, resulted not from the view that these were not essential to a fair hearing. Indeed, the opposite is persuasively suggested by the above quotations. The court did not rule on this issue. In Gault there was a record to review and the case was decided on other grounds. It was noted that the right to appellate review of state decisions had not been required under the fourteenth amendment. See 387 U.S. at 58, 87 S.Ct. 1428 wherein Griffin v. People of State of Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956) was cited.

While it is true that the United States Supreme Court has not held that due process requires the states to provide a right to appellate review, it was held in Griffin that where a state provides an appeal process, it may not discriminate against people on the basis of poverty. The court held that Griffin was substantially prejudiced in his appeal because he was denied a transcript of the record.

The reasoning supporting the requirement that testimony be recorded and a transcript furnished to indigent adults is appropriate to indigent juveniles.

In re Brown, 439 F.2d 47 (3 Cir., 1971), in language reminiscent of that in Griffin, supra, held that although a state appeal system is not constitutionally required; once established, the right to appeal must be extended to juveniles as well as to adults. If the right to equal protection of the laws compels states to provide appeals to juveniles where appeals are provided for adults; then the same constitutional compulsion which led to Griffin (i.e., the ban on discrimination based on poverty insofar as it relates to effectively appeal), requires that the incidents of an effective appeal, including a record from which a transcript can be drawn, be made available to juvenile defendants.

The state also contends that the appeal should be dismissed because appellant failed to include recorded testimony or a statement of facts. LSA-C.C.P. Art. 2131 and decisions in civil cases support this contention. Clark v. Richardson, 157 So.2d 325 (La.App. 3 Cir. 1963); Mid-City Investment Co. v. Young, 238 So.2d 780 (La.App. 1 Cir. 1970). This is answered by the Louisiana Supreme Court's refusal to apply the rules of either criminal or civil procedure 'by inference or implication' to appeals from juvenile courts. In re Diaz, 211 La. 1015, 31 So.2d 195 at 196 (1947). We are not disposed to...