State In Interest of B. T.

• Decision Date: 16 November 1976
• Citation: 145 N.J.Super. 268,367 A.2d 887
• Parties: STATE of New Jersey In the Interest of B.T. et al., Juveniles-Appellants.
• Court: New Jersey Superior Court — Appellate Division

Page 268

145 N.J.Super. 268

367 A.2d 887

STATE of New Jersey In the Interest of B.T. et al Juveniles-Appellants.

Superior Court of New Jersey Appellate Division.

Argued Oct. 25, 1976.

Decided Nov. 16, 1976.

Richard M. Glassner, Newark, for appellant B.T. (Stein, Bliablias & McGuire, Newark, attorneys; Kenneth J. McGuire, Newark, on the brief).

Stanford M. Singer, Asst. Deputy Public Defender, for appellant W.W. (Stanley C. Van Ness, Public Defender, attorney).

Rapkin, Chessin & Carrion, Paterson, for appellant E.S., submitted on briefs of other appellants.

Zulima V. Farber, Asst. Prosecutor, for respondent (Joseph C. Woodcock, Jr., Bergen County Prosecutor, attorney).

Before Judges CARTON, KOLE, and LARNER.

The opinion of the court was delivered by

LARNER, J.A.D.

This appeal presents for review the determination of the Bergen County Juvenile and Domestic Relations Court that three juveniles over the age of 16 charged with homicide should be tried as adults pursuant to the provisions of N.J.S.A. 2A:4--48 and R. 5:9--5(b). The juveniles assert several grounds in support of their contention that the waiver of jurisdiction and transfer for adult prosecution constituted reversible error.

The first contention asserted by appellants is that the nature of the transfer hearing deprived them of due process of law in two respects: (1) admission in evidence of statements of W.W. and D.C. ¹ obtained by police without Miranda warnings, and (2) infringement of their right of confrontation because of their inability to cross-examine the declarants whose statements inculpated the other juveniles.

The statement of W.W. ² may or may not be excluded as to him at a plenary trial wherein his guilt would be at issue, depending upon the court's finding as to voluntariness, sufficiency of the Miranda warnings and the effectiveness of waiver of counsel. See Michigan v. Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974); State v. Graham, 59 N.J. 366, 283 A.2d 321 (1971). Similarly, the admissibility of the statements of W. and C. against the other defendants at a joint trial might be legally suspect on the basis of the right of confrontation under the Sixth and Fourteenth Amendments and the problems explored in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and State v. Young, 46 N.J. 152, 215 A.2d 352 (1965).

However, these constitutional guarantees arising from the question of admissibility of evidence at a trial on the merits do not apply to a preliminary jurisdictional hearing which simply determines whether the accused is to be tried in one court or another. Such a hearing is a preliminary proceeding to determine the propriety of transfer under the statutory criteria. The portion of the hearing relating to probable cause can be analogized to the probable cause hearing prior to indictment or the determination of a grand jury to indict. In either of these instances, rules of evidence and constitutional guarantees involving the trial process are inappropriate. Since the result of a preliminary judicial proceeding as involved herein does not adjudicate the guilt of the accused, the type of permissible evidential material used by the court in reaching its conclusion is not circumscribed by the limited evidential rules applied at trial. See State v. Ferrante, 111 N.J.Super. 299, 268 A.2d 301 (App.Div.1970); State v. Price, 108 N.J.Super. 272, 260 A.id 877 (Law Div.1970). See also Fed.R.Crim.P. 5.1(a); James v. State, 254 So.2d 838, 839 (Fla.Dist.Ct.App.1971), cert. den., 409 U.S. 985, 93 S.Ct. 334, 34 L.Ed.2d 249 (1972).

The demands of due process at such a preliminary stage of the proceedings are no more extensive than to afford the accused a fair hearing where he is represented by counsel and has an opportunity to be heard and present evidence. See Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). Such rights are guaranteed in this State with respect to a transfer hearing. State v. Van Buren, 29 N.J. 548, 150 A.2d 649 (1959); R. 5:9--5(b); R. 5:3--3(a). Otherwise, the full panoply of rules and rights guaranteed to defendants at trial by virtue of the several constitutional amendments urged by defendants have no relevancy or application.

Thus, we find no basis for the assertion that defendants were deprived of due process of law.

With the disposition of the foregoing constitutional issues we next consider the trial judge's finding that the statutory criteria were satisfied so as to warrant the order of transfer. The pertinent portion of the applicable statute provides:

The juvenile and domestic relations court may, without the consent of the juvenile, waive jurisdiction over a case and refer that case to the appropriate court and prosecuting authority having jurisdiction if it finds, after hearing that:

a. The juvenile was 16 years of age or older at the time of the charged delinquent act;

b. There is probable cause to believe that the juvenile committed a delinquent act which would constitute homicide, treason if committed by an adult or committed an offense against the person in an aggressive, violent and willful manner * * *

c. The court is satisfied that adequate protection of the public requires waiver and is satisfied there are no reasonable prospects for rehabilitation of the juvenile prior to his attaining the age of majority by use of the procedures, services and facilities available to the court. (N.J.S.A. 2A:4--48)

The Legislature has vested the Juvenile Court with the discretionary power to direct a transfer, and as a consequence, that court's judgment can only be overturned upon an appellate finding that the decision was arbitrary as a mistaken exercise of discretion. See State v. Tuddles, 38 N.J. 565, 572, 186 A.2d 284 (1962); State v. Van Buren, supra, 29 N.J. 548 at 559, 150 A.2d 649.

The record reveals that as of the time of the hearing in January 1976, B.T. ³ was approximately 17 1/2 years old, W. approximately the same age and E.S. ⁴ a few months younger.

On December 15, 1975 Robert Cooper, an employee of the Garfield Target Range in Garfield, New Jersey, was found dead, lying in a pool of blood at the range with six bullets in his body. The bullets used were described as the type used for target practice at pistol ranges. Two glass display cabinets had been broken into and 23 weapons were missing.

As a result of police investigation S. and W. were interrogated and they led the police to several locations where 12 handguns, one rifle and ammunition were recovered. Some were in a green bag hidden in a lot behind W.'s place of abode; another was found in the basement of the same building pursuant to an anonymous tip and one was hidden under W.'s bed. Other guns were found in S.'s attic. All were identified as property stolen from the range. A search of the home where T. resided with his parents produced an additional handgun belonging to the range and two other unconnected handguns. In all, only 14 of the 23 missing weapons were recovered.

W. related in his statement that he had gone to the target range with T. earlier on the fatal day of December 15. They were denied access because they did not have appropriate identification. They then asked S. to drive them to the range in his father's car. On the way, one of them said that 'they were going to get guns.' When they arrived at the range S. gave a false driver's license, issued to a cousin who was then living in Puerto Rico, to W. and T. who entered the range while S. and C. remained in the car. T. and W. were able to rent, though the use of the false license, a .38-caliber revolver with a green handle and proceeded to shoot a few rounds at the target. During this time the range employee, Cooper, commenced shooting in the next stall.

Suddenly T. took a step back, shot Cooper in the head and took three or four more shots at the victim (the latter fact is supported by circumstantial evidence). Thereafter W. and T. returned and T. threw a green duffel bag into the car trunk. C. testified that T. pointed a gun at him in the car and said, 'nobody knows anything, everybody keep their mouth shut.' On the return trip T. threw the gun with a green handle into the river, stating that he did so because that gun was marked.

On the basis of the foregoing operative facts, the trial judge found that there was probable cause to believe that the three juveniles committed a delinquent act which would constitute homicide if committed by an adult. Implicit in this finding was the determination on a probable cause basis that T. committed the actual killing and that W. and S. aided and abetted in the killing and the robbery or larceny which motivated the same.

We conclude that there was a substantial evidential basis for the finding of probable cause and therefore affirm the court's determination on that statutory criterion.

W. and S. assert that their role in the crime as developed by the evidence is not one which authorizes waiver of jurisdiction for adult prosecution. They argue that the statute does not encompass the charge of homicide through the route of aiding and abetting or committing a felony, and that the absence of evidence that they personally perpetrated the killing...