T. K. v. State

• Decision Date: 11 May 1972
• Docket Number: No. 3,No. 47037,47037,3
• Parties: T. K. v. STATE of Georgia a
• Court: Georgia Court of Appeals

Page 588

190 S.E.2d 588

126 Ga.App. 269

T. K. v. STATE of Georgia ^a.

No. 47037.

Court of Appeals of Georgia, Division No. 3.

May 11, 1972.

Syllabus by the Court

Although an accused is entitled to counsel at the stage known as 'a detention hearing' under Juvenile Court Code of Georgia, there is no authority for reversing an adjudication of delinquency after a fair trial with legal representation because of lack of counsel at the detention hearing unless it appears that deprivation of counsel at that stage resulted in harm to the juvenile.

Nunn, Geiger & Rampey, D. L. Rampey, Jr., Warner Robins, for appellant.

R. Avon Buice, Dist. Atty., Perry, for appellee.

CLARK, Judge.

This case marks the third appeal to this court on questions of legal rights of juveniles under the new Juvenile Court Code ¹ of Georgia (Ga.L.1971, p. 709 et seq.; Code Ann. § 24A-101 et seq.) which became effective July 1, 1971. Even though we affirm the juvenile court's final decision in this appeal we find it necessary under the enumeration of error raising this question as well as for future guidance to determine whether our new statute entitles an accused to be represented by counsel at the stage known as 'detention hearing.'

In Reed v. State of Ga., 125 Ga.App. 568, 188 S.E.2d 392, we dealt with the notice requirement which the statute expressly makes a prerequisite to the conduct of any 'transfer' hearing in which the juvenile court will consider relinquishing its jurisdiction and transferring the offense to another court for prosecution, e.g., superior court. We there ruled the notice to the accused and the accused's parents must state the specific purpose of the proposed 'transfer' hearing.

In Mack v. State of Ga., 125 Ga.App. 639, 188 S.E.2d 828, this court was called upon to review a finding of delinquency at an 'adjudication hearing' in which the evidence presented below included an incriminating statement by the juvenile to a detective at home in the presence of his mother after having been properly advised of his rights ² in the presence of his mother. The court was also required to consider the extent to which the juvenile court retains dispositional authority once a committal to the Division of Children and Youth has occurred.

In the case sub judice appellant appeals from an order finding him to be in a state of delinquency and committing him to the Division of Children and Youth for care, supervision and planning. The petition filed against appellant alleged, in effect, his participation on two occasions of vandalism of a junior high school and thereby committing the offenses of burglary and criminal damage to property.

The record reveals that on October 9, 1971, an officer of the Warner Robins Department of Public Safety responded to a call that somebody was in one of the buildings on the Warner Robins Junior High School campus. The officer saw and stopped two boys who started to leave on bicycles as he arrived. The boys, one of whom was appellant, were promptly delivered to a juvenile officer for Houston County. Any juvenile officer receiving custody of a child is required to make an immediate investigation and release the child unless it appears that detention is warranted or required. Code Ann. § 24A-1404. Such taking into custody is expressly stated to be 'not an arrest, exept for the purpose of determining its validity under the Constitution of this State or of the United States.' Code Ann. § 24A-1301(b). The youngster was released to his parents with the family being requested to appear October 12 for a pre-hearing interview.

Upon explanation to them of their son's legal rights at the pre-hearing interview the parents stated their desire to have legal representation. This interview was followed immediately by the detention hearing at which the juvenile court judge explained its nature, pointing out it was 'to determine probable cause and possible detention.' Although the parents indicated their financial ability and desire to hire an attorney, the court did not postpone the hearing for this purpose but completed the proceedings with a formal order committing the accused to a detention home. He further ordered the petition which is required under Ch. 24A-16 to be filed immediately. This would have resulted in the 'adjudication hearing' being held 'not be later than 10 days after the filing of the petition' under the provisions of Code Ann. § 24A-1701 because of the detention. Otherwise there is a thirty day limitation. Code Ann. § 24A-1404(b). on October 15 by the attorney hired by the on October 1k by the attorney hired by the parents. This bail hearing took place October 20 and after hearing evidence the accused was released to his parents on his own recognizance. The requisite petition for scheduling the dispositive hearing was filed October 18 with the trial scheduled for October 26. This would have been within the statutory time of 30 days for one who is not in detention but was rescheduled upon the attorney's motion for continuance to November 23. The primary purpose for the postponement was a desire to have a psychological examination and time for defense preparation.

This adjudication hearing, referred to in the record as 'Factual Investigation and Dispositional Phase,' was a full scale trial with the district attorney representing the State and with the retained attorney competently and capably representing the accused. Held:

1. Code Ann. § 24A-1404(c) provides that prior to the commencement of a detention hearing, the parties shall be informed of their right to counsel and to appointed counsel if they are needy persons. Code Ann. § 24A-2001(a) provides: '(A) party is entitled to representation by legal counsel at all stages of any proceedings alleging delinquency . . . If a party appears without counsel, the court shall ascertain whether he knows of his right thereto and to be provided with counsel by the court if he is a needy person. The court may continue the proceeding to enable a party to obtain counsel . . .' (Emphasis supplied.)

The record shows the required advice concerning counsel was given to the child's parents but not until just before the detention hearing (during a pre-detention hearing interview) and again during the hearing itself. It also appears that on both occasions the parents stated they did want to retain and be represented by counsel. The statutory directive and constitutional right to counsel includes 'reasonable time and opportunity to secure counsel.' Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158.

Appellee asserts the detention hearing is similar in nature to 'the arrest stage' so that representation by a lawyer, even for adults who may be putative criminals, is not an essentiality. We disagree, particularly since the legislature here dealt separately with 'taking into custody' (Code Ann. Ch. 24A-13), 'detention' (Code Ann. Ch. 24A-14), and proceedings in connection with the 'detention hearing'. We submit the detention hearing serves a function analogous to a commitment hearing in the criminal process dealing with adults. The duty of a committing court 'is simply to determine whether there is sufficient reason to suspect the guilt of the accused, to require him to appear and answer before the court competent to try him; and whenever such probable cause exists, it is the duty of the court to commit.' Code § 27-407.

The new Juvenile Code obviously intends that procedural due process requirements established by In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.E.2d 527 (1967) be observed. It also seeks nonconfinement, rehabilitation, and restoration to parental care wherever possible rather than punishment.

The legislature's recognition of the importance of the lawyer to the accused juvenile is shown in the fact that the Act refers to counsel in eight different portions of the Juvenile Court Code, §§ 24A-1404(c); 24A-1701(d); 24A-2001(a, b); 24A-2201(d); 24A-2501(a)(1); 24A-3401(a)(3); and 24A-3502(b).

Prior to the passage in 1971 of the Juvenile Court Code this court in Freeman v. Wilcox, 119 Ga.App. 325, 167 S.E.2d 163, had already recognized the importance of the juvenile's right to counsel at all adjudicative stages of juvenile proceedings.

The clear aim of the framers of our Juvenile Court Code was to emphasize non-confinement and fulfillment of parental responsibilities with rehabilitation of the accused but that it there is to be a formal hearing, whether it be detention or adjudicatory, then the chaild is entitled to counsel for such hearing.

2. In Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed. 387, the United States Supreme Court ruled the preliminary or commitment hearing ³ to be a 'critical stage' of the prosecution, so that if one was held, then the accused is entitled to be represented by counsel. It therefore remanded the matter to the trial court (as was done by the Alabama court-see Coleman v. State, 46 AlaApp. 737, 239 So.2d 223) so that a hearing might be held and a finding made as to whether beyond a reasonable doubt lack of counsel did or did not result in harm or prejudice to his fair trial rights at the jury trial. This court followed that ruling in mollins v. State, 122 Ga.App. 865, 179 S.E.2d 111 and exercised its authority under Code § 6-1610 with remand of the case for determination as to whether or not such deprivation of counsel caused defendant to suffer prejudice at the trial of the case.

In the present instance an examination of the record shows no harm to have resulted from the lack of counsel at that stage. The child and his parents were not deprived of any right to make any available defense on the merits at the 'adjudicatory...