State v. Young

• Decision Date: 23 July 1976
• Docket Number: No. 48186,48186
• Citation: 552 P.2d 905,220 Kan. 541
• Parties: STATE of Kansas, Appellee, v. Michael YOUNG, Appellant.
• Court: Kansas Supreme Court

Page 905

552 P.2d 905

220 Kan. 541

STATE of Kansas, Appellee, v. Michael YOUNG, Appellant.

No. 48186.

Supreme Court of Kansas.

July 23, 1976.

Syllabus by the Court

1. K.S.A. 38-808(b) (Weeks) which allows an adjudicated juvenile not amendable to the care, treatment and training program available through the facilities of the juvenile court to be charged as an adult for subsequent criminal acts is constitutional.

2. A confession is not inadmissible merely because the person making it is a juvenile. The age of the juvenile, the length of the questioning, the juvenile's education, the juvenile's prior experience with the police, and the juvenile's mental state are all factors to be considered in determining the voluntariness and admissibility of a juvenile's confession into evidence.

3. An adjudicated juvenile's request to call his father, prior to interrogation by custodial officers, does not per se constitute an assertion of his right against self-incrimination.

4. The constitution and K.S.A. 38-839 afford no right to the presence of anyone other than a lawyer trained to protect the legal rights of those accused. While the presence or absence of a parent or responsible adult during the interrogation of a juvenile suspect may be a factor affecting the voluntariness of a confession, there is no constitutional right to the presence of a parent.

5. A juvenile is capable of making an admissible voluntary confession, and there is no constitutional requirement that he have the advice of a parent, guardian or other adult.

6. Whether a confession was freely and voluntarily given is based upon a consideration of the totality of the circumstances, and where there is a genuine conflict in the evidence great reliance must be placed upon the finder of fact.

7. In a criminal appeal from a jury verdict which found the juvenile defendant guilty of murder in the first degree, while perpetrating or attempting to perpetrate the felony of aggravated robbery, the record on appeal is examined and it is held: Considering the totality of the circumstances, and particularly the appellant's past experience with law violations which resulted in a prior adjudication by the juvenile court waiving its jurisdiction over the appellant, substantial competent evidence supports the trial court's finding that a confession given by the defendant was freely and voluntarily given, and its subsequent admission in evidence was proper.

M. Warren McCamish, of Maurin, McCamish & Vader, Kansas City, argued the cause, and was on the brief for appellant.

Philip L. Sieve, Chief Asst. Dist. Atty., argued the cause, and Curt T. Schneider, Atty. Gen., and Nick A. Tomasic, Dist. Atty., were with him on the brief for appellee.

SCHROEDER, Justice:

This is an appeal in a criminal action by sixteen-year-old Michael W. Young, (defendant-appellant) from a jury verdict which found him guilty of murder in the first degree (K.S.A. 21-3401) while perpetrating or attempting to perpetrate the felony of aggravated robbery. (K.S.A. 21-3427.)

At issue is the jurisdiction of a district court over a previously adjudicated juvenile, a juvenile's right to counsel and adult advice and the admissibility of a confession when the juvenile was alleged to be under the influence of drugs.

Michael Young was born December 22, 1957. On September 4, 1974, Michael Young was found to be delinquent child not amenable to the care, treatment and training program available through the facilities of the juvenile court. (See, K.S.A. 38-808 (Weeks), now K.S.A. 1975 Supp. 38-808.)

The state's information filed December 13, 1974, alleged that on October 28, 1974, Michael Young and two Negro male companions killed Robert Young during the perpetration or attempted perpetration of an aggravated robbery. (K.S.A. 21-3427.) The record does not disclose many facts concerning the robbery and murder. Suffice it to say the police arrested one Rufus Bolden (a/k/a Six-Fingered Looney) who named Michael as a participant in the crime.

At about 7:30 p. m. on November 20, 1974, the police arrested Michael, then sixteen. Michael testified he asked to call his attorney and his father, but his request was denied. (Testimony on this point will be stated in detail later in the opinion.)

At about 8:15 p. m., the police read a waiver of rights form containing the Miranda warnings. (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694.) Michael then read the form himself and signed his name on the form. Two police detectives testified Michael indicated that he understood the contents of the waiver of rights document and that he was acting voluntarily without threats or coercion. At trial Michael testified the form was read to him; he was asked if he understood; he told the detectives he understood; and believed that he did understand.

The police detectives described Michael as a little apprehensive and evasive at first. However, when the police said Rufus Bolden had implicated him in the robbery-murder, Michael decided to confess and tell the police how the robbery-murder had occurred. A written statement taken by the police was read, corrected and signed by Michael at 9:17 p. m. The statement described Michael's role in the robbery, how he hit one person on the head with a hammer, and where the murder weapon could be found. Michael's statement indicated the murder weapon, a pistol, was at 6th and 'Hiawatha', which Michael changed to 'Hallock' and initialed 'M.W.Y.' The police went to the Hallock address Michael gave them and found the murder weapon.

Michael testified at the time of his arrest and interrogation he was under the influence of marihuana, reads and quaaludes. The police admitted Michael told them this, but they did not think he was under the influence of the drugs.

The trial court admitted the confession finding Michael was fully competent, understood what he was doing, and made the statement.

At the trial on March 13, 1975, the jury found Michael guilty of murder in the first degree. Appeal has been duly perfected.

The appellant contends the district court lacked jurisdiction over him because the record does not show the exclusive original jurisdiction of the juvenile court was properly waived.

The juvenile code waives jurisdiction in two specific areas. K.S.A. 1975 Supp. 38-806, applicable here, provides in part:

'(a) Except as provided in K.S.A. 21-3611 and K.S.A. (1975 Supp.) 38-808(b) and unless jurisdiction is by statute specifically conferred upon some other court or courts, the juvenile court of each county of this state shall have:

'(1) Exclusive original jurisdiction in proceedings concerning the person of a child living or found within the county who appears to be delinquent, miscreant, wayward, a traffic offender, a truant or dependent and neglected, as defined in K.S.A. (1975 Supp.) 38-802.'

K.S.A. 21-3611 deals with aggravated juvenile delinquency. It provides punishment under this state's general criminal laws for certain acts committed by any person confined in the state juvenile institutions. This court has recently construed this statute to be constitutional against due process and equal protection attacks. (State v. Sherk, 217 Kan. 726, 538 P.2d 1399.) (See also, Le Vier v. State, 214 Kan. 287, 520 P.2d 1325; Seibert v. Ferguson, 167 Kan. 128, 205 P.2d 484; and Burris v. Board of Administration, 156 Kan. 600, 134 P.2d 649.)

The juvenile code also waives jurisdiction by the statutory language of K.S.A. 38-808(b) (Weeks). The part material to our decision reads:

'. . . Any finding by a juvenile court hereunder, that a child would not be amenable to the care, treatment and training program available through the facilities of the juvenile court, may, if the order so provides, thereafter attach to any future act by such child which is cognizable under the juvenile code as an act of delinquency or miscreancy, and jurisdiction over such child shall be vested in any court of appropriate jurisdiction of the county of such child's residence or of the county wherein he may be found.' (Now K.S.A. 1975 Supp. 38-808 (c).)

Here the appellant was found to be a delinquent child not amenable to the care, treatment and training program available through the facilities of the juvenile court on September 4, 1974, prior to the offense with which he is here charged. The journal entry disclosing the jurisdiction of the juvenile court was waived for future acts provides:

'IT IS THE FURTHER JUDGMENT AND ORDER OF THE COURT that pursuant to K.S.A. 38-808(b) that this certification Order stating that said minor is not amenable to the care, treatment and training program available through the facilities of the Juvenile Court SHOULD AND DOES HEREBY ATTACH TO ANY FUTURE ACT BY SAID MINOR which is cognizable under the Juvenile Code as an act of delinquency or miscreancy, and jurisdiction of said child shall be vested in any court or appropriate jurisdiction of the County of said minor's residence or of the County wherein he may be found.'

The record on the motion to suppress the confession of the appellant discloses the journal entry of September 4, 1974, was marked State's Exhibit No. 3 and used to interrogate police Detective James Parks, who was familiar with its contents. Furthermore, the appellant admitted in his testimony that he appeared in juvenile court on September 4, 1974, and was not 'certified as an adult on that date.' Under these circumstances the appellant's contention on appeal that the journal entry was not introduced in evidence at the trial, and could not be found in the juvenile court, is at most technical, because the validity of the adjudication in the juvenile court on September 4, 1974, is not challenged in any respect, and all parties treated the Exhibit as having been admitted in evidence throughout the trial. The journal entry is fully set forth in the supplemental record on appeal.

Given the clear language of both K.S.A. 38-808(b) (Weeks) and the...