State v. Wade

• Decision Date: 12 January 1976
• Docket Number: No. 58159,58159
• Citation: 531 S.W.2d 726
• Parties: STATE of Missouri, Respondent, v. Dirk Allen WADE, Appellant.
• Court: Missouri Supreme Court

Page 726

531 S.W.2d 726

STATE of Missouri, Respondent, v. Dirk Allen WADE, Appellant.

No. 58159.

Supreme Court of Missouri, En Banc.

Jan. 12, 1976.

As Modified On Denial of Rehearing Feb. 9, 1976.

Stanley E. Goldstein, Dan Hayes, Hayes & Heisler, Clayton, for appellant.

John C. Danforth, Atty. Gen., Paul Otto, Asst. Atty. Gen., for respondent.

DONNELLY, Judge.

Appellant, Dirk Allen Wade, was convicted of first degree murder by a jury in the City of St. Louis. He was sentenced to life imprisonment on October 27, 1972. He filed his notice of appeal on November 3, 1972. We retain jurisdiction on the basis of our order entered April 9, 1973, following our decision in Parks v. State, 492 S.W.2d 746 (Mo. banc 1973). We reverse and remand.

Ernest Gutzmann was shot between 1:00 and 1:30 a.m. on the morning of October 24, 1970, near the corner of Union Boulevard and Harney Avenue in St. Louis, Missouri. He died from the gunshot wound on October 30, 1970.

Appellant was indicted for the murder of Ernest Gutzmann on April 27, 1971. He filed a motion to suppress statements on May 17, 1971. Evidence adduced at the pretrial hearing on this motion to suppress showed that appellant was arrested at 4:10 p.m., December 29, 1970, in connection with a robbery. Appellant was transported to the Sixth District police station. The arresting officers testified that on the way to the station appellant was questioned about his age; that he responded that his birth date was January 24, 1953; and that in response to a statement by one of the officers, appellant agreed that he was seventeen. He was, at the time of the arrest, sixteen years of age.

While being transported to the police station, appellant was informed of his constitutional rights and indicated that he understood them.

Upon arriving at the Sixth District station at 4:25 p.m., appellant was taken to an interrogation room. Two other officers (Qualls and Murphy) joined the two arresting officers (Hoyer and Happe) in the interrogation room. After approximately half an hour of interrogation, the officers asked appellant if he had anything to say about other crimes. According to the officers' testimony, appellant stated that he had shot a man at the corner of Union and Harney. At this point, the homicide division was called in.

Officers Tumminello, Hummert and Dowd from the homicide division arrived at the Sixth District station at 5:15 p.m. and questioned appellant for approximately fifteen minutes. These officers had been informed by the Sixth District officers that appellant was seventeen years old and did not inquire further about his age. Before these officers questioned appellant, they again informed him of his constitutional rights and informed him that he was a suspect in the shooting death of Ernest Gutzmann. Appellant then made an oral statement to the officers implicating himself in the Gutzmann crime. Following this statement, the homicide detectives took appellant to Central Headquarters. A records check there revealed that appellant was sixteen years of age. Officer Tumminello immediately called appellant's mother and had appellant conveyed to the Juvenile Center.

The State's evidence consisted primarily of Officer Tumminello's testimony regarding the confession appellant made to him. This confession was never reduced to written form. Appellant contends that the confession is inadmissible because of noncompliance with § 211.061(1), RSMo 1969. This section reads as follows:

'1. When a child is taken into custody with or without warrant for an offense, the child together with any information concerning him and the personal property found in his possession, shall be taken immediately and directly before the juvenile court or delivered to the juvenile officer or person acting for him.'

A 'child' is a person 'under seventeen years of age.' § 211.021(2), RSMo 1969. The jurisdiction of the juvenile court attaches from the moment the child is taken into custody. § 211.131(3), RSMo 1969.

Appellant contends that these sections render inadmissible any statement given by him between arrest and delivery to the juvenile authorities.

The State contends that appellant wilfully misrepresented his age to the officers and thereby 'waived his right' to be turned over to the juvenile authorities before questioning.

Appellant relies on State v. Arbeiter, 408 S.W.2d 26 (Mo.1966). In Arbeiter a fifteen-year-old boy was taken into custody and questioned by police before being taken to the juvenile authorities pursuant to § 211.061(1). The officers in Arbeiter knew the defendant was fifteen but felt it was not necessary to comply with § 211.061(1). This Court reversed the conviction on the grounds that the statements given before the defendant was taken to the Juvenile Center were inadmissible.

The State recognizes the impact on this case of the Arbeiter holding but seeks to distinguish it on the ground that appellant misrepresented his age and thereby 'waived his right' to insist on the provisions of § 211.061(1). In support of this contention, the State cites several cases which hold that a juvenile's misrepresentation of his age constitutes a waiver of his 'right' to be treated as a juvenile.

In United States v. Lovejoy, 364 F.2d 586 (2nd Cir. 1966), there were three codefendants. One was a juvenile (Carter) who misrepresented his age through trial. After a verdict was returned, it was vacated as to Carter, and the two adult defendants sought to set aside their convictions on the grounds that Carter's statement was inadmissible. A federal statute (18 U.S.C. § 5035) required that a juvenile be taken to the juvenile authorities unless jail detention was necessary. The court held that in 'view of the arresting officer's ignorance as to Carter's age, the detention of Carter did not constitute such a violation of this section as to make his statement inadmissible.'

In Penn v. Peyton, 270 F.Supp. 981 (W.D.Va.1967), petitioner was tried and convicted as an adult. Both petitioner and his father misrepresented petitioner's age through trial. After conviction, petitioner sought habeas corpus because no investigation was made to determine if he should be tried as an adult. The court held that he had waived his statutory right to an investigation by his wilful misrepresentation. The court reasoned that to permit a juvenile to insist on being treated as a juvenile after wilfully being tried as an adult would allow juveniles to take their chances in adult courts and, if convicted, to try again in the juvenile system. This was been as an abuse of the Juvenile Code. Another case following this theory is Sheppard v. Rhay, 73 Wash.2d 734, 440 P.2d 422 (Wash.1968). Rhay, was also a case where the juvenile sought relief after trial as an adult.

There are several other cases where courts have refused to afford a juvenile the protections of the Juvenile Code when the juvenile misrepresented his age through a plea of guilty or trial and then sought to set aside the conviction. See State v. Superior Court of Pima County, 7 Ariz.App. 170, 436 P.2d 948 (1968); People v. Henderson, 2 Ill.App.3d 285, 276 N.E.2d 377 (1971); People v. Walker, 19 Ill.App.3d 798, 313 N.E.2d 217 (1974).

The rationale of all these cases is that a juvenile should not be allowed to use the Juvenile Code as both a shield and a sword; that a juvenile should not be allowed to wilfully misrepresent his age, be tried as an adult, and then, if convicted, try again at the juvenile level.

We need not decide in this case the position we would take if presented with a case of continuing misrepresentation which constitutes an abuse of judicial process. In any event, we do not believe the cases cited by the State are directly in point on the question confronting us in this case.

We believe the Juvenile Code recognizes the incapacities of persons under seventeen years of age, and intends that a child shall be provided with the assistance of a juvenile officer or other juvenile court personnel before he is subjected to the rigors of police interrogation. We doubt the capacity of an offender under seventeen years of age to legally effect a waiver of any kind in the absence of such a person.

In State v. Wright, 515 S.W.2d 421, 430, 431 (Mo. banc 1974), this Court stated the rule 'that if, after he has been granted his federal constitutional Fifth and Sixth Amendment rights, a juvenile subject to jurisdiction of the juvenile court makes a voluntary statement to someone other than a juvenile officer or other juvenile court personnel, and if it is made clear to the juvenile that criminal responsibility can result from any statement he makes and that the questioning authorities are operating as his adversaries rather than his friends, such statements are admissible in evidence against the juvenile in a criminal trial.'

The Court then said:

'The rule we adopt does not make juvenile proceedings a mere adjunct to the criminal process nor nullify the juvenile code or its effectiveness. Sec. 211.061 requires that immediately after being taken into custody, the juvenile shall be taken before the juvenile court or delivered to the juvenile officer or person acting for him. Compliance with that statutory requirement protects the juvenile against interrogation before such delivery. Arbeiter (1), supra (408 S.W.2d 26). Thereafter, the juvenile is subject to jurisdiction of the juvenile court and whether he is interrogated by other than juvenile court personnel depends on whether permission is granted for such interrogation by juvenile court personnel. In most juvenile proceedings, this question will not arise. Where it does not, any statement made will be to the juvenile officer or other juvenile court personnel and under § 211.271(3) will not be usable other than in the juvenile court. In more serious crimes, a request by police personnel to interrogate may well be made. When it does, a decision will be made by juvenile authorities, based,...