State v. Carmichael

• Decision Date: 27 June 1973
• Docket Number: No. 72-871,72-871
• Parties: , 64 O.O.2d 1 The STATE of Ohio, Appellee, v. CARMICHAEL, Appellant.
• Court: Ohio Supreme Court

Page 1

35 Ohio St.2d 1

298 N.E.2d 568, 64 O.O.2d 1

The STATE of Ohio, Appellee, v. CARMICHAEL, Appellant.

No. 72-871.

Supreme Court of Ohio.

June 27, 1973.

Syllabus by the Court

1. A hearing under R.C. 2151.26 is a preliminary stage of the juvenile judicial process and contemplates that the court should have considerable latitude within which to determine whether it should retain jurisdiction.

2. What constitutes 'reasonable grounds' for relinquishing jurisdiction under R.C. 2151.26(A)(3) is within the sound discretion of the court, after an 'investigation' is made.

At approximately 6:00 p. m. on June 25, 1971, Donald L. Reed, proprietor of the Henry Street Market in the city of Columbus, Ohio, was shot once, and died. Shortly thereafter, Charles E. Carmichael, a juvenile, age 17 years and three months, was arrested and charged with the crime of murder, first degree. On July 6, 1971, the Franklin County prosecutor's office filed a motion in the Juvenile Court requesting that court to relinquish jurisdiction for the purpose of criminal prosecution of Charles E. Carmichael as an adult. On September 14, 1971, pursuant to R.C. 2151.26, the accused was committed, temporarily, to the Ohio Youth Commission for investigation, including a mental and physical examination at the Juvenile Diagnostic Center. He was examined by two psychiatrists, two psychologists, one physician, and one psychiatric social worker (who also testified at the hearing), and was returned on October 1, 1971, to the Franklin County Juvenile Court. All the foregoing personnel prepared their individual reports, which were delivered to the court on October 4, 1971. It is undisputed that these reports were available to counsel from that date to December 7, 1971, some two months later when the hearing on the motion to transfer jurisdiction was conducted.

Three witnesses testified at that hearing.

1. Joseph Henry Sowell, age 20, a friend of Carmichael, testified that he was at the scene and saw the weapon in Charles' hand immediately after the death shot was fired. He was cross-examined.

2. Nobuhisa Baba, a pathologist, testified as to the cause of death, and was also cross-examined.

3. James K. McGeachin, a psychiatric social worker.

At that hearing, the aforesaid reports and a 'Diagnostic Summary,' prepared by the psychiatric social worker and signed by the chief psychiatrist at a staff conference, were admitted in evidence, as one exhibit, after they had been identified by the psychiatric social worker. Defense counsel objected to the admission, stating that the entire document was hearsay and that he had the 'right to cross-examine every examining psychologist and psychiatrist whose summary or whose opinion or conclusions are contained in this report.' However, defense counsel did not cross-examine this witness, even though the court invited cross-examination on two separate and distinct occasions. Nor did defense counsel present any evidence whatsoever upon the conclusion of the prosecutor's presentation. The record discloses that defense counsel took the position of offering nothing, relying solely upon his conclusion that the state had failed to go forward with its burden of proof and that the only evidence offered was hearsay.

The court disregarded the summary of the social workers and concluded that Carmichael was 'not amenable to care and rehabilitation in any facility designed for care and supervision of delinquent children' and that 'the safety of the community would require he be placed under legal restraint for that period beyond his maturity.' Thus, the court transferred the matter to the Common Pleas Court of Franklin County for appropriate action by the grand jury of that county. Subsequently, Carmichael was found to be indigent, and defense counsel was appointed to represent him in the Common Pleas Court.

Defense counsel then appealed the transfer order to the Court of Appeals, which affirmed the judgment of the Juvenile Court.

The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

George C. Smith, Pros. Atty., and Miles C. Durfey, Columbus, for appellee.

Willis E. Wolfe, Jr., and Richard S. Donahey, Columbus, for appellant.

CELEBREZZE, Justice.

The appellant in this cause directs the full thrust of his argument at the alleged use of hearsay evidence in the report from the Ohio Youth Commission Juvenile Diagnostic Center. While it is true that the psychiatrists and psychologists did not appear to testify concerning their examinations of Charles E. Carmichael, it is equally true that they were never called, nor was any effort made to call them by defense counsel, even though counsel had access to those documents for more than two months prior to the hearing. Nor did counsel, if he intended to make an issue of his client's 'amenability to care or rehabilitation' in a children's facility, call any witnesses or even indicate to the court that he had investigated or had any knowledge of testimony relevant to this issue, or would investigate it if permitted.

The issue before the Juvenile Court at the time was the transfer of the accused from its jurisdiction under R.C. 2151.26.

R.C. 2151.26, at the time in question, read as follows:

'(A) After a complaint has been filed alleging that a child is delinquent by reason of having committed an act which would constitute a felony if committed by an adult, the court at a hearing may, before hearing the complaint on its merits, transfer the case for criminal prosecution to the appropriate court having jurisdiction of the offense, after making, in order, the following determinations:

'(1) The child was fifteen or more years of age at the time of the conduct charged;

'(2) There is probable cause to believe that the child committed the act alleged;

'(3) After an investigation including a mental and physical examination of such child made by the Ohio youth commission, a public or private agency, or a person qualified to make such examination, that there are reasonable grounds to believe that:

'(a) He is not committable to an institution for the mentally retarded or mentally ill;

'(b) He is not amenable to care or rehabilitation in any facility designed for the care, supervision, and rehabilitation of delinquent children;

'(c) The safety of the community requires that he be placed under legal restraint, including, if necessary, for the period extending beyond his majority.

'(B) Notice in writing of the time, place, and purpose of such hearing shall be given to his parents, guardian, or other custodian and his counsel at least three days prior to the hearing.

'(C) No child, either before or after reaching eighteen years of age, shall be prosecuted as an adult for an offense committed prior to becoming eighteen unless the case has been transferred as provided in this section. Any prosecution that is had in a criminal court on the mistaken belief that the child was over eighteen years of age at the time of the commission of the offense shall be deemed a nullity and the child shall not be considered to have been in jeopardy on the offense.

'(D) Upon such transfer the juvenile court shall state the reasons therefor and order such child to enter into a recognizance with good and sufficient surety for his appearance before the appropriate court for such disposition as such court is authorized to make for a like act committed by an adult. Such transfer terminates the jurisdiction of the juvenile court with respect to the delinquent acts alleged in the complaint.'

There is no complaint concerning error with respect to the hearing court's procedure until we arrive at paragraph (3) above.

Counsel for Carmichael had no objection to the referral nor apparently to anything contained in the reports. The objection was to the introduction of the report upon the basis of hearsay. After a careful analysis of the reports incorporated in the exhibit, the hearing court made the following statement before reviewing the exhibit:

'The Court: The court is of the opinion that the statute requires that an investigation be made * * *. This, of course, however does not limit your right to call or cross-examine all...