State v. Gullings

• Decision Date: 14 July 1966
• Citation: 244 Or. 173,416 P.2d 311
• Parties: The STATE of Oregon, Respondent, v. Gerald Lee GULLINGS, Appellant.
• Court: Oregon Supreme Court

Page 311

416 P.2d 311

244 Or. 173

The STATE of Oregon, Respondent, v. Gerald Lee GULLINGS, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted May 4, 1966.

Decided July 14, 1966.

Orlin R. Anson, Portland, argued the cause for appellant. On the brief were Corcoran & Anson, Portland.

Hollie Pihl, Dist. Atty., Hillsboro, argued the cause for respondent. With him on the brief was Richard Smurthwaite, Deputy Dist. Atty., Hillsboro.

Before McALLISTER, C.J., and SLOAN, GOODWIN, DENECKE, HOLMAN, SCHWAB and HAMMOND, JJ.

HOLMAN, Justice.

The defendant was convicted of the crime of burglary and has appealed. At the time of the commission of the crime and defendant's detention by the authorities he was seventeen years of age. A deputy sheriff, armed with a detention warrant issued by the juvenile court, took the defendant into custody at school. There was evidence from which the trial court could and did find that the deputy sheriff promptly and effectively advised defendant that any information secured could be used against him a criminal prosecution for burglary, that he was entitled to an attorney at government expense, and that he had an absolute right to remain silent. Thereafter, defendant immediately made incriminating admissions to the officer of his participation in the burglary. Defendant was taken from school to his home where he produced from his automobile a pair of binoculars taken in the burglary. His parents were not at home. He was then taken to the sheriff's office where he almost immediately signed a written confession which was found by the trial judge to have been voluntarily made. There was no protracted period of custodial questioning. Subsequently defendant was remanded to adult court for trial. ¹

Defendant's principal claim of error on appeal is that his confession was erroneously admitted into evidence. He contends that he was within the exclusive jurisdiction of the juvenile court at all times prior to his remand to adult court and that any confession secured during this period of time is inadmissible.

The basic concept of the Oregon law relating to juveniles ² was stated to be, by its framers in their report ³ to the Governor and the Legislature of the state, as follows:

'* * * juveniles who have offended against the law or who find themselves in need of protection should be dealt with through a specialized procedure in a court which, when possible, has a judge specialized in dealing with children. The procedure is civil, not criminal, and equitable in that the remedies may be flexible and based upon 'conscience' and judgment, rather than upon more or less rigid rules of law.

'The most important respect in which the juvenile code departs from traditional legal machinery is that a child under 18 who has violated a law is dealt with, not by indictment and trial according to the criminal law, but by petition in a civil proceeding before the juvenile judge. Furthermore, the object of the proceeding is not reformation through punishment, but reformation through education, either in the child's own home, in an adoptive or foster home or in a private or public agency or training school.'

The Parens patriae theory of juvenile treatment implicit in this statement is necessarily based upon a close relationship between the child and the representatives of the court. The desired result is the child's trust and confidence in the representatives of the court and a full disclosure by the child to them. Until such a condition exists, the chances for successful and meaningful treatment on a Parens patriae basis are minimal. The essence of such treatment is the establishment of an informal non-adversary atmosphere which is the antithesis of adult criminal procedure. For these reasons the child is not charged with crime and therefore is not entitled to those rights which are necessary for the protection of an accused where the state is an adversary seeking criminal sanctions. The relationship and its consequences are described as follows in the case of Holmes' Appeal, 379 Pa. 599, 109 A.2d 523 (1954):

'Appellant's able counsel have urged upon us as upon the Superior Court, many claims of illegality and deprivation of constitutional rights in connection with the proceedings before the Municipal Court. Such claims, however, entirely overlook, in our opinion, the basic concept of a Juvenile Court. The proceedings in such a court are not in the nature of a criminal trial but constitute merely a civil inquiry or action looking to the treatment, reformation and rehabilitation of the minor child. Their purpose is not penal but protective,--aimed to check juvenile delinquency and to throw around a child, just starting, perhaps, on an evil course and deprived of proper parental care, the strong arm of the State acting as parens patriae. The State is not seeking to punish an offender but to salvage a boy who may be in danger of becoming one, and to safeguard his adolescent life. * * *' 379 Pa. at 603, 109 A.2d at 525.

It would be inconsistent to allow admissions made by the child in a noncriminal, nonpunitive and nonadversary trustful Parens patriae atmosphere to be used to secure criminal sanctions against him. The following is a statement from Harling v. United States, 111 U.S.App.D.C. 174, 295 F.2d 161 (1961):

'It is, of course, because children are, generally speaking, exempt from criminal penalties that safeguards of the criminal law * * * have no general application in juvenile proceedings. Aside from the requirements of expressly applicable statutes, the principles of 'fundamental fairness' govern in fashioning procedures and remedies to serve the best interests of the child. 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. * * *' 111 U.S.App.D.C. at 176, 295 F.2d at 163.

If information secured by juvenile authorities is indiscriminately used as a basis for imposing criminal responsibility, juvenile courts cannot legitimately complain if traditional criminal constitutional standards are required of them in all their proceedings. Such a result would naturally be self-defeating since there is little room for the Parens patriae relationship to operate within the narrow confines of standards evolved for use in the adversary criminal setting.

A few courts believe the incompatibility between criminal and juvenile proceedings is so great as to require, regardless of the circumstances under which they are secured, that admissions and confessions received prior to remand must be absolutely barred from use in a criminal prosecution after remand. Harling v. United States, supra. The prohibition was required not only by 'fundamental fairness' to the child but also to preserve the independence and integrity of the juvenile system. Edwards v. United States, 117 U.S.App.D.C. 383, 330 F.2d 849, 850--851 (1964).

Presuming that federal constitutional Fifth and Sixth Amendment rights are granted, ⁴ we believe that an absolute prohibition is not required so long as it is made clear to the juvenile that criminal responsibility can result and that the questioning authorities are not operating as his friends but as his adversaries. In the present case we believe this was made abundantly clear to the defendant. ⁵ The officer had been adequately trained and apparently was aware in advance that there was a possibility of a remand. His testimony indicated he was careful and specific in informing the defendant of the possible consequences.

We do not believe the two factors which were the concern of the court in Harling and Edwards, supra, require prohibiting the use in adult proceedings of all information secured by police before remand. No 'principles of fundamental fairness' are offended when the information is secured in a setting that is so patently adversarial as to be understood by the child. The Parens patriae relationship does not exist between police and child but between court and child. Police are in the business of solving transgressions against the welfare of society and the apprehension of those who are responsible therefor. They are not engaged in the rehabilitation of the child and the treatment of his emotional and family problems where the free exchange of information and a close relationship is so important. The use of information secured by police will not, in our opinion, tend to make more difficult the establishment of a close relationship between juvenile workers and the child.

Nor is the integrity of the juvenile court threatened so long as constitutional due process is required whenever the police secure information which is subsequently used against the child is an adult prosecution. If information has been secured from a juvenile under the court's jurisdiction without regard for constitutional safeguards and such information is later used in an adult prosecution, the integrity of the juvenile court may be threatened. The juvenile court would then be nothing more than an adjunct to unlawful police practices.

We are not unaware that in the present case the defendant was taken into police custody by a detention warrant issued by the juvenile court. Nor are we unaware that ORS 419.573 provides that jurisdiction of the juvenile court attaches in any event from the time a child is taken into custody by the police. These are beside the point. The important factor is whether defendant could legitimately believe a protective confidential relationship existed between himself and the police. It is difficult in all...