Tross v. Com.

• Decision Date: 12 December 1995
• Docket Number: No. 0828-94-4,0828-94-4
• Citation: 464 S.E.2d 523,21 Va.App. 362
• Court: Virginia Court of Appeals
• Parties: Russell TROSS v. COMMONWEALTH of Virginia. Record

Page 523

464 S.E.2d 523

21 Va.App. 362

Russell TROSS v. COMMONWEALTH of Virginia.

Record No. 0828-94-4.

Court of Appeals of Virginia Alexandria.

Dec. 12, 1995.

Steven D. Rosenfield, Charlottesville (R. Bruce Wiles, Harrisonburg, on briefs), for appellant.

Richard B. Smith, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: WILLIS and FITZPATRICK, JJ., and HODGES, Senior Judge.

FITZPATRICK, Judge.

Russell Tross (appellant) was convicted in a jury trial of capital murder in violation of Code § 18.2-31(4), robbery in violation of Code § 18.2-58, and using a firearm to commit murder in violation of Code § 18.2-53.1. On appeal, he argues that the trial court erred in: (1) exercising jurisdiction over the case when the juvenile intake system is facially unconstitutional under the Virginia Constitution's doctrine of separation of powers; (2) transferring jurisdiction without considering his amenability to treatment or rehabilitation as a juvenile; (3) refusing to strike for cause a potential juror predisposed to the death penalty; (4) denying his motion for a jury view of the crime scene; and (5) finding the evidence sufficient to support his convictions for robbery and capital murder. For the reasons that follow, we affirm the trial court.

I. BACKGROUND

On January 22, 1993, at 9:30 p.m., appellant, a sixteen-year-old, and four companions went to the Super Fresh grocery store in Harrisonburg, Virginia. On the way to the store, appellant suggested that they steal some beer. Two people, Clifford Silver (Silver) and Kelly Botkins (Botkins), entered the store. Intending to use his gun if anyone tried to stop them from stealing beer, appellant put the gun in his pocket, "just in case," and followed Silver and Botkins into the store. Silver and Botkins both took beer and left without paying. Appellant hid a forty-ounce bottle of beer in his pocket and began to leave. He walked through the first set of exit doors into the vestibule. Steven Daniel (Daniel), the store manager, blocked appellant's exit by standing between him and the second set of exit doors. Alcohol Beverage Control Board Agent S.O. Decker (Decker), who was investigating underage alcohol purchases at the store, was approaching the store's entrance when he saw appellant raise his right hand and fire a .25 caliber round into Daniel's face. Decker was standing six to eight feet away from the entrance when appellant shot Daniel and never saw Daniel touch appellant. Daniel died shortly thereafter.

Appellant fled with the stolen beer, fired two shots in the direction of the pursuing ABC agents, and sped off in the car with the others. Oran Wood (Wood) testified that, when appellant returned to the car, he had both the gun and a forty-ounce bottle of beer. A Rockingham County sheriff's deputy arrested appellant a few hours later. At trial, appellant testified that the gun discharged accidentally when he tried to turn over the gun to Daniel, who had grabbed his hand.

An intake officer of the Juvenile and Domestic Relations District Court for Harrisonburg and Rockingham County filed three petitions against appellant, charging him with capital murder, robbery, and using a firearm to commit murder. Finding the requirements of Code § 16.1-269(A) ¹ satisfied, the juvenile court transferred the case to the Circuit Court of Rockingham County. The circuit court held a de novo hearing pursuant to Code § 16.1-269(E) and also found the transfer proper under Code § 16.1-269(A). The court referred the case to a grand jury that returned three indictments against appellant for capital murder, robbery, and using a firearm to commit murder. In a jury trial, appellant was convicted on all three charges and sentenced to life imprisonment for the capital murder, twenty years for the robbery, and two years for the firearm charge.

II. JURISDICTION OF JUVENILE COURT AND SEPARATION OF POWERS

After the intake officer authorized the petitions in this case, appellant moved to quash their issuance. The juvenile and domestic relations district court denied the motion to quash and found that the statutorily mandated intake process did not violate the doctrine of separation of powers. On March 9, 1993, the juvenile judge found as follows: "[T]he appropriate sections of the Code of Virginia were followed by the intake officer and ... the statutory framework of the commencement of juvenile petitions is constitutional and was followed in this case as to all three petitions." After transfer to the circuit court and indictment on all three charges, appellant again moved to quash the indictments on the same ground. The trial court denied his motion and found the intake system facially constitutional.

Appellant argues that the trial court lacked jurisdiction to try him because the juvenile intake system authorizes an executive branch officer to act in a judicial capacity, thus violating the principle of separation of powers contained in the Constitution of Virginia. See Va. Const. art. I, § 5 and art. III, § 1. ² He contends that juvenile intake officers are executive in nature because: (1) the Department of Youth and Family Services (the Department) ³ appoints them pursuant to Code § 16.1-233(A); (2) the Department compensates them pursuant to Code §§ 16.1-233(B) and 16.1-238; and (3) they exercise the executive power to investigate and arrest. Additionally, appellant argues that juvenile intake officers possess the judicial power to determine probable cause, authorize the filing of petitions, and issue detention orders, thus creating an overlap in functions that violates the separation of powers doctrine.

In response, the Commonwealth asserts that: (1) any possible defect in the juvenile intake system does not affect the jurisdiction of the juvenile court; (2) an invalidly issued petition would not void appellant's conviction; and (3) the juvenile intake system is constitutional. We hold that the juvenile court properly exercised jurisdiction over appellant's case.

(A) Juvenile Intake System

The legislature created the juvenile and domestic relations district courts to fulfill certain purposes, including:

1. To divert from or within the juvenile justice system, to the extent possible, consistent with the protection of the public safety, those children who can be cared for or treated through alternative programs;

2. To provide judicial procedures through which the provisions of this law are executed and enforced and in which the parties are assured a fair hearing and their constitutional and other rights are recognized and enforced;

3. To separate a child from such child's parents, guardian, legal custodian or other person standing in loco parentis only when the child's welfare is endangered or it is in the interest of public safety and then only after consideration of alternatives to out-of-home placement which afford effective protection to the child, his family, and the community; and

4. To protect the community against those acts of its citizens which are harmful to others and to reduce the incidence of delinquent behavior.

Code § 16.1-227. To achieve these goals, Code § 16.1-233(A) authorizes the Director of the Department of Youth and Family Services to "develop and operate ... probation and other court services for juvenile and domestic relations district courts in order that all children coming within the jurisdiction of such courts throughout the Commonwealth shall receive the fullest protection of the court." The Director may appoint the necessary Department personnel to aid in the development and operation of court service units. Code § 16.1-233(A). The Department pays the salaries of these employees with Department funds. Code § 16.1-233(B).

In Virginia, two types of probation and court service units exist: state court service units operated by the Department and local court service units. Code § 16.1-235. For both state and local court service units, the chief judge or judges of the juvenile and domestic relations district court may appoint probation officers and related court service personnel from a list of eligible persons certified by the Director or, in local court service units, certified by the local governing body. Id. In appointing court service personnel, the juvenile court judges must comply with qualifications and regulations established by the State Board of Youth and Family Services pursuant to Code § 16.1-233(C). Id. "No person shall be assigned to or discharged from the state-operated court service staff of a juvenile and domestic relations district court except as provided in Chapter 10 of Title 2.1, nor without the prior mutual approval of the judge thereof and the Director." Code § 16.1-233(D). Additionally, pursuant to Code § 16.1-236, in both state and local court service units, the chief judge of the juvenile and domestic relations district court may designate one or more probation officers as supervisors.

Probation and court service personnel in state-operated court service units are state employees paid by the Commonwealth. Code § 16.1-238. Local court service unit probation officers and personnel are paid by the county or city, although any county or city complying with minimum standards set by the State Board may seek reimbursement from the Department for up to one-half of the compensation paid. Id.

In addition to the traditional investigatory and supervisory powers of a probation officer, a juvenile probation officer possesses: (1) "the authority to administer oaths and take acknowledgements for the purposes of §§ 16.1-259 and 16.1-260 to facilitate the processes of intake and petition," Code § 16.1-237(G); and (2) "the powers of arrest of a police officer and the power to carry a concealed weapon when specifically so authorized by the judge." Code § 16.1-237(H). Additionally, juvenile probation officers known as "intake officers" are responsible for "[c]omplaints, requests...