State v. C. J. S.

• Decision Date: 18 March 1980
• Docket Number: No. 14438,14438
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. C. J. S. *

Page 899

263 S.E.2d 899

164 W.Va. 473

STATE of West Virginia v. C. J. S. ^*

No. 14438.

Supreme Court of Appeals of West Virginia.

March 18, 1980.

Dissenting Opinion March 26, 1980.

Syllabus by the Court

1. An aider and abettor is as criminally responsible for a crime as the principal actor.

2. A child who aided and abetted the commission of a robbery involving the use or presenting of firearms may be subject to transfer to criminal court under W.Va.Code, 49-5-10(d)(1).

3. The state has the burden of proving by clear and convincing evidence all the factors in Code, 49-5-10(d) relied upon to obtain transfer of a child from juvenile to adult court. W.Va.Code, 49-5-10(a).

4. Before transfer of a juvenile to criminal court, a juvenile court judge must make a careful, detailed analysis into the child's mental and physical condition, maturity, emotional attitude, home or family environment, school experience and other similar personal factors. W.Va.Code, 49-5-10(d).

William R. DeHaven, Martinsburg, Richard Lorensen, Law Student, for P. E.

Chauncey H. Browning, Jr., Atty. Gen., Lawrence R. Frail, Asst. Atty. Gen., Charleston, for D. E.

HARSHBARGER, Justice:

This appeal by C. J. S., sixteen years old at the time of his alleged offense, challenges his transfer from the juvenile to the criminal jurisdiction of the Circuit Court of Berkeley County. We reverse and remand for a new transfer hearing consistent with this opinion.

On November 16, 1978, a person armed with a handgun robbed Ellinger's Market, a combination store and gas station located in Berkeley County. Several days later our state police were notified by the Albemarle, North Carolina police department that one of three juveniles in custody on a North Carolina charge had given a statement implicating the three in the robbery.

Two troopers went to North Carolina to question the juveniles and returned them to West Virginia. Juvenile petitions were filed against them; the petition against C. J. S. stated that one E. P. robbed Ellinger's Market of $4,966.59, and C. J. S. "did then and there feloniously, wilfully, maliciously, deliberately, and knowingly encite, move, procure, aid, abet, counsel, hire and command the said . . . (E. P.) to do and commit the said felony and robbery in the manner and form aforesaid."

A transfer hearing was held on December 8, 1978 after which the trial judge found that the alleged offenses were crimes of violence and would be felonies if committed by adults; that there was probable cause to believe that E. P. committed the robbery and that C. J. S. aided and abetted; that neither juvenile exhibited evidence of mental disease or physical impairment; that neither was amenable to parental control or discipline; and that his resources and remedies to deal with them were severely limited. Considering all these factors, the court waived its juvenile jurisdiction and transferred the youths to circuit court for prosecution as adults.

C. J. S. argues that there was no finding of fact that he committed robbery as defined in W.Va.Code, 49-5-10(d)(1) and that the state failed to meet Code, 49-5-10(a) and (d) mandates that it prove clearly and convincingly that his mental and physical condition, maturity, emotional attitude, home or family environment, school experience and similar personal factors, allowed transfer.

I.

In 1977, the Legislature amended our juvenile proceedings statute. If a criminal actor is less than eighteen years old at the time of an alleged offense, the case is immediately certified to the circuit court's juvenile jurisdiction. ¹

The same act provides for transfer of certain cases from juvenile jurisdiction back to the criminal side. ² Section 10, dealing with this transfer, was again amended in 1978. We have held, both prior and subsequent to this latter amendment, that such transfers should be the exception and not the rule. State v. Bannister, W.Va., 250 S.E.2d 53 (1978); State ex rel. Smith v. Scott, W.Va., 238 S.E.2d 223(1977). As Justice McGraw wrote in State v. M. M., W.Va., 256 S.E.2d 549, 556-557 (1979), "(t)he decision to try a juvenile as an adult has enormous and lifelong consequences for the child and for society. The right to be treated as a juvenile is a valuable right."

Code, 49-5-10(d) provides, in relevant part:

(d) The court may, upon consideration of the child's mental and physical condition, maturity, emotional attitude, home or family environment, school experience and similar personal factors, transfer a juvenile proceeding to criminal jurisdiction if there is a probable cause to believe that:

(1) The child has committed the crime of treason under section one ( § 61-1-1), article one, chapter sixty-one of this Code; the crime of murder under sections one, two and three ( §§ 61-2-1, 61-2-2 and 61-2-3), article two, chapter sixty-one of this Code; the crime of robbery involving the use or presenting of firearms or other deadly weapons under section twelve ( § 61-2-12), article two, chapter sixty-one of this Code ; the crime of kidnapping under section fourteen-a ( § 61-2-14a), article two, chapter sixty-one of this Code; the crime of first degree arson under section one ( § 61-3-1), article three, chapter sixty-one of this Code . . . and in such case, the existence of such probable cause shall be sufficient grounds for transfer without further inquiry . . . (Emphasis added.)

(4) A child, sixteen years of age or over, has committed an offense of violence to the person which would be a felony if committed by an adult . . . . (Emphasis added.)

We do not agree with C. J. S. that aiding and abetting an armed robbery is a separate crime from committing an armed robbery and that he is therefore not subject to transfer. Although the elements of proof for aiding and abetting are different and the crimes require separate treatment in indictments, ³ an aider and abettor has consistently been held to be as criminally responsible for a crime as the criminal actor. The former is a principal in the second degree, the latter a principal in the first degree. State ex rel. Brown v. Thompson, 149 W.Va. 649, 142 S.E.2d 711 (1965), cert. denied, 382 U.S. 940, 86 S.Ct. 392, 15 L.Ed.2d 350, and cases cited therein. Judge Haymond's extensive analysis of the problem made clear that:

(A) person is guilty as a principal in the second degree when he aids and abets the actual perpetrator or the principal in the first degree, in the commission by such perpetrator of a common law offense which is also a statutory crime . . . . Id., 149 W.Va. at 654, 142 S.E.2d at 715.

An aider and abettor has committed the crime as much as the principal in the first degree, and is subject to the same punishment as the principal felon. ⁴

Applying a similar juvenile transfer statute in New Jersey, ⁵ the Appellate Division of the Superior Court of New Jersey found that a juvenile charged as an aider and abettor to an armed robbery could be transferred. State in Interest of R.L.P., 159 N.J.Super. 267, 387 A.2d 1223 (1978). We agree with the reasoning, also found in State in Interest of B. T., 145 N.J.Super. 268, 276, 367 A.2d 887, 891 (1976), that an aider and abettor is equally as guilty as a principal and "as amendable to the transfer process as his cohort . . . ."

The order entered included a finding that there was probable cause to believe C. J. S. aided and abetted the robbery. ⁶ Therefore he may be transferred. ⁷

II.

The first paragraph of Code, 49-5-10(d) supra, requires a court to consider a child's mental and physical condition, maturity, emotional attitude, home or family environment, school experience and similar personal factors before transfer.

Here is the court's total effort to comply with this requirement:

DEFENSE COUNSEL: "Your honor, I believe that one of the considerations of the Court that the Court can consider is the child's mental and physical condition, et cetera, as set forth in the statute."

THE COURT: "The way I read the statute, it's manditory (sic) that I do so. Is (are) Mr. and Mrs. (S.) here?"

COUNSEL: "Yes, they are." ⁸

Q: "Has (C. J. S.) ever suffered from any mental disease?"

A: "If you're talking about drugs, yes, if drugs is (sic) considered-included under physical, certainly that's physical affects physical and mental."

Q: "Do you recall whether he was on drugs at the time of this offense?"

A: "I assume he was, because he had been for several weeks. Yes."

Q: "He had been for several weeks?"

A: "Yes. Uh huh."

Q: "He has not been going to school, has he?"

A: "No, he has not."

Q: "Has he is it not true he has demonstrated a lack of maturity?"

A: "Yes, that's true."

Q: "And as far as homelife goes, is he obedient and respectful of both of you?"

A: "He hasn't been anywhere as obedient as he should have been in the past few months."

Q: "And you associate that with drugs also?"

A: "Yes, I do, your Honor."

Q: "All right. I gather he has not been attending school?"

A: "That's right, correct."

Q: "Do you know whether he has been working?"

A: "He had worked for a very short period about eight days and laid off or . . . ."

Q: "All right. Do you know who if anybody influenced him, with respect to the use of drugs?"

A: "I think there is a whole scheme of that sort of thing among young people."

Q: "And did you ever ever see him take drugs?"

A: "No, I never saw him take them, but I could see the evidence afterwards."

Q: "All right. Any other inquiry, gentlemen?"

The court then conducted a similar inquiry of the parents of the second juvenile, E. P. There were no expert witnesses; no physicians or psychologists testified; no school records were assessed.

The state has the burden of establishing by clear and convincing proof all the factors and grounds relied upon to obtain transfer. A cursory inquiry is insufficient.

No long term interest is served by a pro forma adherence to lofty legislative principles. Hearings without substance, moving mechanically to a preconceived result while reciting ...