Tyvonne, In re

• Decision Date: 09 May 1989
• Docket Number: No. 13495,13495
• Court: Connecticut Supreme Court
• Parties: In re TYVONNE * **

Page 661

558 A.2d 661

211 Conn. 151

In re TYVONNE ^{* **}

No. 13495.

Supreme Court of Connecticut.

Argued Jan. 31, 1989.

Decided May 9, 1989.

Brian S. Carlow, Asst. Public Defender, with whom, on the brief, was Ann M. Guillet, Asst. Public Defender, for appellant (respondent).

Bruce A. Tonkonow, State's Advocate, for appellee (petitioner).

Before PETERS, C.J., and ARTHUR H. HEALEY, SHEA, CALLAHAN, GLASS, COVELLO and HULL, JJ.

GLASS, Associate Justice.

In this case we decide whether the common law defense of infancy applies to juvenile delinquency proceedings. The respondent appealed to the Appellate Court from an adjudication of delinquency, claiming that the trial court erred in denying his motion for judgment of acquittal. Pursuant to Practice Book § 4023, we transferred the case to ourselves. We find no error.

The relevant facts are not in dispute. The respondent was born on July 28, 1978. He lived with his mother, grandmother and two younger siblings in Hartford and attended the Clark Street School. On March 1, 1987, the respondent, who was eight years old, found a small pistol while he was playing in the school yard. He took the pistol and hid it under some papers in a hallway in building 38 of Bellevue Square. The following day he took the pistol to school and put it by a fence. He then went into the school and told another child about the pistol. Other children, including the victim, heard about the pistol. The victim told Tyvonne that she thought the pistol was a fake. After school, the respondent and the victim began arguing over whether the pistol was real. Several children examined the pistol and decided that it was a toy. The victim challenged the respondent again by saying, "Shoot me, shoot me." The respondent exclaimed, "I'll show you it's real." He then pointed the pistol at the victim, pulled the trigger, and fired one shot, which struck and injured her. The respondent then swore at the victim, shouted that he had been telling the truth, and ran from the scene. Shortly thereafter he was apprehended and taken into police custody.

On March 3, 1987, the state filed a petition alleging five counts of delinquent ¹ behavior arising from the shooting. On that date, the trial court appointed a public defender to represent the respondent, conducted a detention release hearing, and released the respondent to the care of his maternal grandmother. The trial court also ordered a psychological evaluation of the respondent. The hearing on the delinquency petition commenced on June 3, 1987. After the state completed its case on the first day, the respondent made an oral motion for judgment of acquittal, claiming that the state had introduced no evidence to rebut the common law presumption that children between the ages of seven and fourteen are incapable of committing a crime. The trial court reserved decision on the motion. On June 10, 1987, the respondent filed a written motion for judgment of acquittal including the claim asserted in the oral motion. On June 22, 1987, the trial court granted the respondent's motion for an examination to determine his competency.

When the hearing resumed on July 29, 1987, the report evaluating the respondent's competency was filed and proof of his competency was waived. ² The trial court then denied the respondent's motion for judgment of acquittal. At the completion of the hearing, the trial court made an adjudication that the respondent was a delinquent based on a finding that he had committed assault in the second degree in violation of General Statutes § 53a-60(a)(2). ³ The trial court dismissed the other counts. The trial court also ordered a preliminary investigation and a psychological evaluation of the respondent's mother and grandmother. At the disposition hearing on October 26, 1987, the trial court committed the respondent to the department of children and youth services (DCYS) for a period not to exceed four years. ⁴

On appeal, the respondent assigns as error the trial court's denial of his motion for judgment of acquittal. He asserts that Connecticut's juvenile justice legislation does not expressly or implicitly eliminate the common law infancy defense from delinquency proceedings. He further argues that because the original goals of rehabilitation and remediation in the juvenile justice system have not been attained, there is no justification for excluding the infancy defense from juvenile delinquency proceedings. Consequently, he claims, the trial court erred in not requiring the state to rebut the presumption that he was incapable of committing the offense underlying the delinquency adjudication. We are not persuaded.

I

The respondent argues that, even though the legislature may abolish common law rules; Pierce v. Albanese, 144 Conn. 241, 250, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S.Ct. 36, 2 L.Ed.2d 21 (1957); statutes in derogation of the common law must be strictly construed. See, e.g., State v. Nugent, 199 Conn. 537, 548, 508 A.2d 728 (1986). He asserts that because the juvenile justice legislation is silent with respect to the common law infancy defense, the common law presumptions must apply to delinquency proceedings. Commonwealth v. Durham, 255 Pa.Super. 539, 389 A.2d 108 (1978). The state argues, however, that Connecticut's juvenile justice legislation implicitly abolishes the defense and, further, that application of the defense in delinquency proceedings would frustrate the legislation's remedial objectives.

"Down through the centuries the law has attempted to save offending children from the rigidity of the criminal law applicable to adults, but the history of the law has disclosed that such attempts were only sporadic and in many instances accomplished very little. As early as the fifth century B.C., the Twelve Tables (c. 488-451) made the theft of crops at night a capital crime, but a youthful offender could escape with a fine double the value and a flogging. The Romans promulgated the defense of infantia which provided absolute immunity for those children who were incapable of speech. Puberty was established as the upper limit of eligibility for mitigated treatment. Between infancy and puberty, criminal responsibility depended on a combination of three factors--the proximity of age to either infancy or puberty, the nature of the offense, and the mental capacity of the offender.

"By the seventeenth century, the Roman classification of criminal responsibility became the basis of the English common-law approach, so that children under seven were incapable of committing a crime while those between seven and fourteen were presumed incapable. Such presumption however was rebuttable by strong and clear evidence. Those [fourteen and over] were subject to the same criminal laws as were adults." D. Frauenhofer, A. Hart, J. Keefe, P. May, E. Sheehy, & T. Wilson, "Practice and Procedure of the Juvenile Court for the State of Connecticut," 41 Conn.B.J. 201, 206 (1967); see 1 W. LaFave & A. Scott, Substantive Criminal Law § 4.11(a); see generally A. Kean, "The History of the Criminal Liability of Children," 53 L.Q.Rev. 364 (1937); A. Walkover, "The Infancy Defense in the New Juvenile Court," 31 UCLA L.Rev. 503 (1984). In a case decided after the enactment of Connecticut's juvenile justice legislation, we observed in dictum that the common law principles had applied to criminal prosecutions of children in Connecticut. State v. Elbert, 115 Conn. 589, 593, 162 A. 769 (1932); 2 Z. Swift, Digest p. 361.

The common law defense of infancy, like the defense of insanity, differs from the criminal law's requirement of "mens rea" or criminal intent. The law recognized that while a child may have actually intended to perform a criminal act, children in general could not reasonably be presumed capable of differentiating right from wrong. See A. Walkover, supra, 551. The presumptions of incapacity were created to avoid punishing those who, because of age, could not appreciate the moral dimensions of their behavior, and for whom the threat of punishment would not act as a deterrent. W. LaFave & A. Scott, supra. Although a number of states have codified the common law rule by statute; see, e.g., Ariz.Rev.Stat.Ann. § 13-501; Minn.Stat. § 609.055; Or.Rev.Stat.Ann. 161.290; Wash.Rev.Code Ann. § 9A.04.050; W. LaFave & A. Scott, supra, § 4.11(b); there is no statutory infancy defense in Connecticut. Cf. General Statutes § 53a-13 (lack of capacity due to mental disease or defect is affirmative defense).

The concept of juvenile delinquency did not exist at common law. In most states, including Connecticut, legislation was enacted that rendered children under a certain age liable as "delinquents" for committing acts that, if committed by an adult, would be criminal. Public Acts 1921, c. 336, § 1; A. Walkover, supra, 503 n. 1. Chapter 336 of the 1921 Public Acts, which established Connecticut's juvenile justice system, is presently codified in chapter 815t of the General Statutes. Even though the Superior Court is Connecticut's trial court of general jurisdiction, and juvenile matters are heard in the Superior Court, juvenile proceedings are conducted separately from all other business of the Superior Court. ⁵ Delinquency is defined in General Statutes § 46b-120 as follows: "[A] child may be found 'delinquent' (1) who has violated any federal or state law or municipal or local ordinance ... or (2) who has violated any order of the superior court...." An important feature of the legislation since its inception is presently expressed in General Statutes § 46b-145, which provides: "No child shall be prosecuted for an offense before the superior court, nor shall the adjudication of such court that a child is delinquent in any case be deemed a conviction of crime except as provided in sections 46b-126 and 46b-127." ⁶ See Public Acts 1921, c. 336, § 18.

Shortly after the creation of the juvenile justice system, we addressed the issue whether a...