State v. Arbeiter

• Decision Date: 12 January 1970
• Docket Number: No. 1,No. 54611,54611,1
• Citation: 449 S.W.2d 627
• Parties: STATE of Missouri, Respondent, v. Joseph Franz ARBEITER, Appellant
• Court: Missouri Supreme Court

Page 627

449 S.W.2d 627

STATE of Missouri, Respondent, v. Joseph Franz ARBEITER, Appellant.

No. 54611.

Supreme Court of Missouri, Division No. 1.

Jan. 12, 1970.

Motion for Rehearing or to Transfer to Court En Banc Denied

Feb. 9, 1970.

John C. Danforth, Atty. Gen., Michael L. Boicourt, Asst. Atty. Gen., Jefferson City, for respondent.

John H. Haley, Jr., James T. Williamson, James P. Finnegan, Jr., St. Louis, for appellant; Haley, Fredrickson, Stubbs & Williamson, London & Greenberg, Burton M. Greenberg, St. Louis, of counsel.

WELBORN, Commissioner.

Appeal from 40-year sentence on jury verdict finding appellant Joseph Franz Arbeiter guilty of murder in the second degree.

Appellant was originally charged by indictment in the St. Louis Circuit Court with first degree murder for the stabbing death of Nancy Zanone in December, 1963. A sentence of life imprisonment on that charge was reversed in State v. Arbeiter, Mo., 408 S.W.2d 26. The basis of the reversal was the admission into evidence at the trial of statements made by the defendant to police officers while the defendant was in police custody. Such statements were held inadmissible because the police had failed to comply with the requirements of the Juvenile Code that the defendant, then 15 years of age and therefore subject to such code, be taken 'immediately and directly before the juvenile court or delivered to the juvenile officer * * *.' Section 211.061, RSMo 1959, V.A.M.S.

After remand of the cause, the circuit attorney moved for the issuance of a subpoena duces tecum to the juvenile court for the production of the records of that court pertaining to the defendant. Over ovjection of defendant, the subpoena was issued and the trial court's order became the subject of a provisional writ of prohibition issued by the court en banc. The petition for the writ alleged, insofar as here pertinent, that the records of the juvenile court are confidential and privileged, under the Juvenile Code (§§ 211.011--211.431, RSMo 1959, V.A.M.S.), and that production of the records in response to the subpoena would violate statutory provisions designed to protect the confidential status of such records, particularly § 211.271, as well as constitutional guaranties against self-incrimination, and to due process and right of counsel.

In State ex rel. Arbeiter v. Reagan, 427 S.W.2d 371, the court en banc quashed the provisional writ in prohibition. Following that decision, and over the continuing objection of defendant, the records of the juvenile court were produced and inspected by counsel for the state and the defendant. The state made copies of the record.

Following such inspection, the state indorsed the name of Donald R. Jones, Juvenile Division, St. Louis Circuit Court, as a witness on the indictment.

The defendant filed a motion to suppress (1) all records of the juvenile court pertaining to the defendant and (2) all testimony as to statements made by defendant to anyone acting on behalf of the juvenile court. The grounds of the motion which constitute the grounds of error now asserted will be discussed hereafter. Following a hearing, the motion to suppress was overruled.

While the motion to suppress was pending, the state, by leave of court, filed an information charging the defendant with murder in the second degree, in lieu of the indictment charging first degree murder.

Wnen the trial began, defendant renewed his objection to the use of any statements taken by juvenile officials from defendant. In the course of the trial, a hearing was held outside the presence of the jury on the issue of the voluntariness of any such statement. The trial court found specifically that a statement made by defendant to Juvenile Officer Donald Jones was voluntary and not rendered inadmissible by the provisions of the Juvenile Code or constitutional objections raised by defendant. Jones was permitted to testify and his testimony is the basis of error urged on this appeal. The testimony of Jones was the only evidence offered connecting defendant with the offense charged.

The state's evidence showed that defendant was taken into custody of S. Louis police officers at approximately 11:00 A.M., December 3, 1963. He remained in police custody until around 9:30 P.M. on that date, when he was delivered by police officers to the intake officer of the juvenile court. The defendant was placed in the juvenile detention facility overninght. Juvenile Officer Jones was assigned to the case and he saw the defendant for the first time on the afternoon of December 4 in the interview room at the juvenile detention facility.

Jones testified:

'As soon as the matron opened the door I walked in and I said, 'Hi, Joe. My name is Mr. Jones. I am going to be your Juvenile Officer.' Joe answered in a low voice, 'Hi.' I asked, simply to clarify both in his mind and my mind, I asked him if he knew why he was being detained, and he said in a very low voice, 'Yes.' And I said, 'Why, Joe?' And Joe said, 'Cause I hurt that woman.'

'He didn't go on, so I pursued it further, and I said, 'Joe, what did you do to that lady?'

'Joe said, and it's not too clear in my mind which he said, but he said either, 'I cut her,' or 'I stabbed her.' I paused and I said, 'Joe, do you know that the lady died?' And he said, 'Yes,' and began crying.'

He also testified that defendant made a further statement which gave details of the encounter with the woman, defendant's stabbing her and his hiding the knife which he used.

Appellant's objection to this testimony is based upon both statutory and constitutional grounds. We consider the statutory grounds first. That attack is based upon paragraph 3 of § 211.271, RSMo 1959, V.A.M.S., which at the time of defendant's trial provided:

'Evidence given in cases under sections 211.011 to 211.431 is not lawful or proper evidence against the child for any purpose whatever in a civil, criminal or other proceeding except in subsequent cases under sections 211.011 to 211.431 (the Juvenile Code).'

Appellant contends that this provision prohibited the use in the criminal trial of the statements to Jones because Jones obtained the statements as a deputy juvenile officer, incorporated them in a 'Social Investigation' report which was submitted to the judge of the juvenile court and admitted in evidence at the hearing on December 26, 1963, following which the judge concluded that the defendant was not a proper person to be dealt with under the Juvenile Code.

The state's position is: '(1) voluntary statements by Arbeiter, in the presence of Jones, were not made before a juvenile judge or as testimony in a juvenile case, but were part of the social investigation undertaken by Juvenile Officer Jones, and hence, not evidence in a juvenile case; (2) said admissions were not evidence in a juvenile case, because the juvenile court did not accept the case by disposing of the issue of guilt or innocence, but merely certified appellant to be tried in the criminal courts as an adult.'

The state offers no authority in support of these propositions, stating merely: 'Unfortunately, there are no Missouri cases which define the scope of 'evidence given in cases under sections 211.011 to 211.431. '' Nor does the state's brief refer to the numerous authorities relied upon by appellant in support of his position. Obviously, those cases are primarily from other jurisdictions and did not deal with statutes precisely like that of Missouri. However, we cannot ignore the persuasive effect of such authority and therefore must consider appellant's cited cases in some detail.

Appellant does cite the Missouri case of State v. Cox, 263 S.W. 215, in which, under a provision of the former juvenile law (§ 2591, RSMo 1919, § 211.010, RSMo 1949) similar to that here relied upon, the court held that testimony given by a person the subject of a juvenile court proceeding could not be used to impeach that person's testimony in a criminal case. Unquestionably that case involved the use of evidence presented to the juvenile court in the form of oral testimony of the juvenile and the application of the statute was clear. The other Missouri case cited, State v. Coffman, 360 Mo. 782, 230 S.W.2d 761, involved attempted use of disposition of a juvenile court proceeding to impeach the juvenile as a witness in a related criminal proceeding. This again was directly in face of the statutory prohibition against the use of the 'disposition' of a juvenile child as evidence against the child. § 211.010, RSMo 1949, supra.

A leading case in support of appellant's position here is Harling v. United States, 111 U.S.App.D.C. 174, 295 F.2d 161, decided in 1961 by the United States Court of Appeals for the District of Columbia. In that case, the court held that principles of 'fundamental fairness' precluded the use in a criminal proceeding of 'damaging oral statements made by appellant while in police custody when he was seventeen years old and before the Juvenile Court had waived its 'original and exclusive jurisdiction. " 295 F.2d 161. In so holding, the court stated (295 F.2d 163--164):

'It would offend these principles to allow admissions made by the child in the non-criminal and non-punitive setting of juvenile proceedings to be used later for the purpose of securing his criminal conviction and punishment. Such a practice would be tantamount to a breach of faith with the child, since he cannot be charged with knowledge of either his privilege against self-incrimination or the Juvenile Court's power to waive its jurisdiction and subject him to criminal penalties. Moreover, if admissions obtained in juvenile proceedings before waiver of jurisdiction may be introduced in an adult proceeding after waiver, the juvenile proceedings are made to serve as an adjunct to and part of the adult criminal process. This would destroy the Juvenile Court's parens patriae relation to the child and would violate the non-criminal philosophy which underlies...