State v. Terry

• Decision Date: 17 September 1997
• Docket Number: No. 96-1123,96-1123
• Citation: 569 N.W.2d 364
• Parties: STATE of Iowa, Appellee, v. Mario T. TERRY, Appellant.
• Court: Iowa Supreme Court

Page 364

569 N.W.2d 364

STATE of Iowa, Appellee, v. Mario T. TERRY, Appellant.

No. 96-1123.

Supreme Court of Iowa.

Sept. 17, 1997.

Linda Del Gallo, State Appellate Defender, and John P. Messina, Assistant State Appellate Defender, for appellant.

Thomas J. Miller, Attorney General, Thomas S. Tauber, Assistant Attorney General, William E. Davis, County Attorney, and Michael Walton, Assistant County Attorney, for appellee.

Considered by McGIVERIN, C.J., and HARRIS, LARSON, LAVORATO, and SNELL, JJ.

LAVORATO, Justice.

The defendant, Mario Terry, appeals from his convictions and sentences for attempted murder and first-degree burglary. Terry appeals on two grounds. First, the district court erred in placing the burden of proof on him to prove good cause necessary to transfer jurisdiction of his case to the juvenile court. See Iowa Code § 232.8(1)(c) (Supp.1995). Second, his confession was obtained in violation of his statutory right to counsel and was therefore improperly admitted at trial. See Iowa Code § 232.11 (1995). We find the first claim without merit and the second claim not properly preserved for our review. We affirm.

I. Background Facts.

Harold Mitchell was the target of the alleged attempted murder and burglary in this case. Mitchell is the stepfather of fifteen-year-old Jessica Springsteen. Mario Terry, a sixteen-year-old juvenile, was Springsteen's boyfriend.

According to statements the police obtained through interrogation of the juveniles, Terry and Springsteen plotted to either "beat up" or "kill" Mitchell. The planned assault apparently was motivated in part by Mitchell's disapproval of Springsteen's relationship with Terry and Mitchell's banning Terry from the household.

On November 16, 1995, Terry, Springsteen, and a third juvenile--Thomas Hull--arrived at the Mitchell home around 7 p.m. Springsteen knocked on the door and asked to enter. Mitchell told Springsteen she could come in if she left her friends outside. Springsteen said she wanted to speak with Terry first. Mitchell then shut the door. At the time, Mitchell and his five-year-old son were at the kitchen table working on a car model.

Several minutes later, Springsteen opened the door and entered the home with Hull and Terry. All were armed: Springsteen with a martial arts weapon; Hull with a baseball bat; and Terry with a crowbar. The juveniles then confronted and attacked Mitchell, who was able to fend them off and flee to an upstairs bedroom with his son. The juveniles left the home and were later arrested by the police. Mitchell suffered minor injuries from blows to his back inflicted by Terry either by fists or the crowbar.

II. Background Proceedings.

Later, the State charged Terry in three counts: (1) attempted murder, (2) first-degree burglary, and (3) conspiracy. See Iowa Code §§ 707.11, 713.3, 706.4.

Two pretrial proceedings are relevant to this appeal.

Terry moved to suppress his confession to a police interrogator. Following an evidentiary hearing, the district court, Judge Edward B. de Silva, Jr., overruled the motion.

Terry also moved to transfer his case to the juvenile court pursuant to Iowa Code section 232.8(1)(c) (Supp.1995). The motion came before the district court, Judge C.H. Pelton. The parties presented arguments regarding the burden of proof. Judge Pelton ruled that the burden was on Terry to prove good cause to transfer the case to the juvenile court. A hearing on the merits of the transfer motion was rescheduled.

Following a hearing on the merits of the transfer motion, the district court, Judge Bobbi M. Alpers, denied the motion.

A jury found Terry guilty on all three charges.

The district court, Judge James E. Kelley, sentenced Terry to concurrent, indeterminate twenty-five-year terms of incarceration on the attempted murder and burglary convictions. See Iowa Code §§ 707.11, 713.3, 902.3, 902.9(1). The court did not enter judgment and sentence on the conspiracy conviction. See id. § 706.4 (prohibiting sentence and conviction for both conspiracy and the underlying public offense).

III. Burden of Proof in Reverse Waiver Proceedings Under Iowa Code Section 232.8(1)(c).

A. Applicable law. Iowa Code section 232.8(1)(c) provides:

Violations by a child, age sixteen or older, which subject the child to the provisions of section 124.401, subsection 1, paragraph "e" or "f," or violations of section 723A.2 which involve a violation of chapter 724, or violation of chapter 724 which constitutes a felony, or violations which constitute a forcible felony are excluded from the jurisdiction of the juvenile court and shall be prosecuted as otherwise provided by law unless the court transfers jurisdiction of the child to the juvenile court upon motion and for good cause.

Iowa Code § 232.8(1)(c) (Supp.1995) (emphasis added).

As Terry points out, this provision is a change in the law that exempts certain classes of alleged juvenile offenders from the initial jurisdiction of the juvenile court. The emphasized language, however, does allow the district court to transfer a juvenile within the exempted class to juvenile court jurisdiction when "good cause" warrants the transfer.

The new procedure is commonly referred to as "reverse waiver" because it operates in the opposite or reverse manner from the process usually applicable with juvenile offenders. Generally, juvenile offenders are first subject to the jurisdiction of the juvenile court; they are then subject to being transferred to district court jurisdiction for prosecution as an adult. See id. §§ 232.8(3) (Supp.1995), 232.45 (1995). Under section 232.8(1)(c), the "reverse" procedure applies: the qualifying juvenile begins in district court for prosecution as an adult and is then subject to transfer to juvenile court.

Terry was subject to the initial, direct jurisdiction of the district court for prosecution as an adult for two reasons. First, he was sixteen at the time of the alleged incident. Second, two of his charges--attempted murder and first-degree burglary--are forcible felonies. Iowa Code section 702.11 classifies first-degree burglary as a forcible felony. Attempted murder--although not specifically listed as a forcible felony--qualifies as a forcible felony because it is a felonious assault, and felonious assaults are by definition forcible felonies. See id. § 702.11; State v. Powers, 278 N.W.2d 26, 29 (Iowa 1979) (holding attempt to commit murder is a felonious assault and therefore a forcible felony).

B. The merits. Terry contends the district court erred in placing the burden on him to prove good cause for the transfer of the case to the juvenile court. He points out that for transfer of jurisdiction motions Iowa Code section 232.45(6)(c) expressly imposes on the State the burden to prove that the juvenile should be prosecuted as an adult. In contrast, section 232.8(1)(c) is silent on who has the burden of proof as to "good cause" to transfer jurisdiction to the juvenile court. In the absence of clear legislative intent to the contrary, Terry thinks the burden of proof under section 232.8(1)(c) should remain with the State.

Terry puts forth policy and fairness arguments to support his position. He asserts the policy behind the allocation of the burden of proof under section 232.8(1)(c) is identical to the policy behind such allocation under section 232.45(6)(c): to minimize the risk of mistake, miscalculation, and misjudgment when youthful offenders are involved. Further, in fairness, the State with its awesome power to determine the fate of the accused is not harmed by bearing the burden of proof on the transfer question.

Because Terry raises an issue of statutory interpretation, our review is for errors at law. State v. Johnson, 528 N.W.2d 638, 640 (Iowa 1995).

In interpreting statutes, we strive to determine and give effect to legislative intent. Id. In enacting section 232.8(1)(c), we think the legislature intended to place the burden of proof on the juvenile to show good cause for a reverse waiver. The legislature certainly knew what to say when it intended to place the burden on the State in waiver proceedings. For example, for waiver of jurisdiction to the district court, section 232.45(6)(c) expressly requires the State to "establish[ ] that there are not reasonable prospects for rehabilitating the child...." Because the legislature did not use similar language in the reverse waiver procedure of section 232.8(1)(c), we can assume the legislature did not intend to place that burden on the State.

Our assumption follows black letter law when a statute is silent on the allocation of burden of proof: a party making a motion ordinarily has the burden to support it. In re Matzen, 305 N.W.2d 479, 481 (Iowa 1981). In Matzen the juvenile moved to suspend delinquency proceedings and that she be placed on probation pursuant to Iowa Code section 232.46(1). Id. at 480. Section 232.46(1) pertinently provides that

[a]t any time after the filing of a petition and prior to entry of an order of adjudication ... the court may suspend the proceedings on motion of the county attorney or the child's counsel, enter a consent decree, and continue the case under terms and conditions established by the court.

Iowa Code § 232.46(1).

In placing the burden on the juvenile to show the appropriateness of the proposed consent decree, this court in Matzen said:

We are convinced the burden is on the juvenile to show the appropriateness of his or her proposed consent decree. She made the motion. It is hornbook law that ordinarily the burden rests on the movant to support his or her motion. 60 C.J.S. Motions and 0rders § 37(5) (1969); cf. Iowa R.App. P. 14(f)(5) ("Ordinarily the burden of proof on an issue is upon the party who would suffer loss if the issue were not established.").

Matzen, 305 N.W.2d at 481.

Several courts with reverse waiver statutes have reached the same conclusion. For example, in Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101 (...