U.S. v. Duboise

• Decision Date: 24 August 1979
• Docket Number: No. 78-1449,78-1449
• Citation: 604 F.2d 648
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Victor DUBOISE, a juvenile, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 648

604 F.2d 648

UNITED STATES of America, Plaintiff-Appellee, v. Victor DUBOISE, a juvenile, Defendant-Appellant.

No. 78-1449.

United States Court of Appeals Tenth Circuit.

Argued and Submitted July 17, 1979.

Decided Aug. 24, 1979.

Robert Bruce Collins, Asst. U. S. Atty. (R. E. Thompson, U. S. Atty., Albuquerque, N. M., on brief), for plaintiff-appellee.

Louis S. Marjon, Albuquerque, N. M., for defendant-appellant.

Before HOLLOWAY, McWILLIAMS and DOYLE, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This case presents the question whether a 16-year-old American Indian, a member of the Navajo Tribe, is entitled to a jury trial notwithstanding that the proceedings were filed under the Federal Juvenile Delinquency Act pursuant to his electing to have the matter so proceed. The Juvenile Delinquency Act does not, of course, permit trial by a jury. It contemplates that the proceedings will be before a district judge.

The charge here was murder. It was alleged to have been in violation of 18 U.S.C. § 5032. ¹

Accused in the instant case did not request to be proceeded against as an adult. Section 5037 provides that "If a juvenile is adjudicated delinquent, a separate dispositional hearing shall be held no later than twenty court days after trial unless the court has ordered further study."

On April 17, 1978, following a trial before United States District Judge Mechem, the defendant was determined to be a juvenile delinquent. On the basis of this determination, he was, on April 17, 1978, committed to the custody of the Attorney General or his authorized representative for a period not to exceed his minority.

Evidence at the trial showed that the defendant, together with Michael Smith, went to Vanderwagon Village near the Navajo communities of Chi-Chil-tah and Two Wells, New Mexico, in the early evening of November 25, 1977. While there, Duboise had an argument with one Jimmy Nez which arose over the fact that Nez refused to buy beer for Duboise and Smith. Following the argument, there was a fist fight. The fist fight became very furious and resulted in Duboise beating and kicking Nez to the ground. He then forced Nez into his truck and drove to a remote area several miles away. He stopped the truck near two trees, pulled Nez from it and again began to beat him. Michael Smith testified against him at the hearing and said that Duboise threw Jimmy off the truck and started to beat and kick him. Nez, during this time, according to Smith, was trying to get away. He was on the ground. However, Smith joined Duboise in the assault notwithstanding that Nez was helpless. Duboise ripped all of the clothing from Nez's body and proceeded to beat him on the face and body with his own belt and buckle. He then hit him with the handle of an axe until the axe handle broke into two pieces. The two left Nez naked by the side of the road. Smith said that Duboise wished to drive the truck over Nez's body, and Smith was able to persuade him not to do it. Duboise and Smith buried Nez's blood-soaked clothing several hundred yards from the site of the beating. Smith testified that the morning after the beating Duboise wore Nez's boots and said to him (Smith), "Here's the boy's boots."

Navajo police discovered Nez's body and contacted the FBI. Richard Sloan, Special Agent, testified at the trial as to what he had observed. This included an axe handle broken into two pieces and a heavy metal belt buckle. Also, he saw bloodstains and scuff marks in the soft dirt leading to Nez's body. Sloan discovered impressions in the dirt where it appeared that Nez had lain during the night and had pulled sagebrush and branches over his body in an attempt to keep warm. Sloan testified at the trial as to the condition of the body; that he observed it; and that it was drawn up as if he were trying to protect himself against the cold. He had numerous scratches, bruises and abrasions all over his body. His face was badly swollen and bruised with blood coming out of the nose, mouth and the ear.

Smith confessed to the FBI as to his role in the beating and also implicated Duboise. He also showed the agents where Nez's clothing was hidden. The agent described the clothing that he found, stating that it was covered with bloodstains.

Smith entered a plea of guilty to voluntary manslaughter for his role in the death. He was shown to have been an adult, and the court sentenced him to an indeterminate period of imprisonment pursuant to the Youth Corrections Act.

Duboise, on December 1, 1977, made a statement to the FBI agents in the Gallup office. His mother and his stepfather accompanied him, and he was fully advised of his constitutional rights not only by Agent Sloan but also by Navajo police officers. After the explanations, the defendant signed the FBI Advice of Rights form. Subsequently, he confessed to the beating of Nez which resulted in his death. His version of it was that he had offered to buy a beer for Jimmy Nez and Jimmy had a bottle of wine. Duboise asked Jimmy Nez for a drink of wine. According to Duboise's statement, Jimmy Nez refused to give him a drink so Duboise became angry and decided that he was going to beat up Jimmy Nez. He said that he had pulled Jimmy Nez out of the vehicle, had thrown him on the ground and had begun to beat and kick him, and at that time called for Michael to come and help him. They began to tear off his clothes while they were beating him. He said that he took Jimmy Nez's belt from his pants and began beating him with the belt and the large silver buckle. He denied that he hit him with an axe handle.

The pathologist testified that in his opinion Nez died of "exposure, in association with severe blunt force trauma, and injury," which had rendered the victim unconscious or incapable of seeking and finding shelter.

The present issue is raised as a result of the motion on the part of Duboise for a jury trial. This was made on April 4, 1978, and immediately preceded the trial. Judge Mechem heard arguments and denied the motion. It is maintained on this appeal that the ruling was in error. Hence, the question is whether inherent in the Juvenile Delinquency Act is the right of trial by jury. It is vigorously argued that it is impossible to waive a jury trial by electing to be tried in accordance with the Juvenile Delinquency provision, 18 U.S.C. § 5032.

The Sixth Amendment guarantees the right to trial by jury in "criminal prosecutions." See Rosenblum v. United States, 549 F.2d 1140 (8th Cir. 1977). It is well settled that adjudication of juvenile delinquency and commitment under the Juvenile Delinquency Act is not a conviction of or sentence for a crime. The object of the proceeding under the Juvenile Delinquency Act is to determine the youth's status as a delinquent. It is a civil rather than a criminal prosecution. See United States v. Hill, 538 F.2d 1072 (4th Cir. 1976). Its main purpose is, of course, to remove juveniles from the criminal justice system and place them under a procedure which allows the juvenile to be treated rather than punished and it avoids the stigma of conviction. See United States v. Mechem, 509 F.2d 1193 (10th Cir. 1975); United States v. Hill, 538 F.2d 1072 (4th Cir. 1976). In this setting the concept of trial to the court rather than to a jury evolved.

We are not lacking in precedents to point the way. The Supreme Court has dealt generally with the subject in In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), which extended to the juvenile a number of constitutional rights which had theretofore been available only to the adult. In that case Gault, a 15-year-old boy, was taken into custody following a complaint that he had made lewd telephone calls. Hearings were had before a juvenile court judge following which Gault was committed to the state industrial school as a juvenile delinquent for a period until he reached his majority. Gault's father brought a habeas corpus action in state court to challenge the validity of the Arizona juvenile code and the procedure used in the case claiming violations of due process rights. The Arizona Supreme Court affirmed the dismissal of the writ. It held that the delinquency procedure was intertwined with the due process provisions and that these were not violated by the procedures.

The Supreme Court's opinion by Mr. Justice Fortas held that procedural due process applied to the proceedings. This called for written notice informing the accused and his parents of the issues presented and also demanded that there must be advice to the child and his parents of the right to counsel, and that if they are unable to afford counsel, that representation will be provided. Also, the privilege against self-incrimination was held to be applicable, whereby an admission...