Whisenant v. State, 8 Div. 948

• Decision Date: 20 March 1984
• Docket Number: 8 Div. 948
• Parties: Darrell D. WHISENANT v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 995

466 So.2d 995

Darrell D. WHISENANT v. STATE.

8 Div. 948.

Court of Criminal Appeals of Alabama.

March 20, 1984.

Rehearing Denied April 24, 1984.

Fred B. Simpson and Fulton S. Hamilton, Simpson & Hamilton, Huntsville, for appellant.

Charles A. Graddick, Atty. Gen., and Thomas R. Allison, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

In March of 1983, Whisenant, a juvenile, was charged in a three-count petition with the murder of Alan Frix, with the third degree burglary of Frix's residence, and with the first degree theft of Frix's automobile. Separate transfer hearings were held on the counts charging murder and burglary. The same testimony was relied on in both hearings. At the conclusion of each hearing, the juvenile court judge granted the State's motion to transfer Whisenant to the circuit court for criminal prosecution as an adult. In each case, the judge set forth in writing her reasons for granting the motion, in full compliance with Alabama Code Section 12-15-34(f) (1975). The two cases are consolidated on appeal.

I

The orders of the juvenile court judge transferring Whisenant for criminal prosecution positively reflect that she considered the relevant factors listed in Section 12-15-34(d). Duncan v. State, 394 So.2d 930 (Ala.1981). Although she specifically found that "it is in the best interest of the community and of the child that the State's petition be granted", Whisenant argues that "all the testimony presented at the hearing, ... consistently maintained that the child and community would be best served by handling the case in the juvenile court."

Our review of the record shows that the evidence on this issue was conflicting. The juvenile probation officer, Joe Motley, who prepared the study and report (Profile of Youth) required by Section 12-15-34(e), recommended that Whisenant be prosecuted as an adult. His report concluded:

"Due to the severity of his crimes and the relative short time span in which they took place it is recommended that Whisenant be certified as an adult and transferred to adult court for criminal prosecution. It is felt that the interests of the community and child would be best served in this manner."

At one point in his testimony at the transfer hearing, Motley did indicate that the juvenile would "be better off in youth services until he is 21" than in going to the state penitentiary. However, both before and after he had given that response, he repeatedly testified that it would be in the best interest of society to certify Whisenant as an adult rather than to keep him in juvenile court.

Three Huntsville residents, who knew Whisenant personally, testified that the juvenile was immature for his age and should be treated as a juvenile.

The decision to transfer a juvenile for prosecution as an adult is a judicial one, Reeves v. State, 419 So.2d 217, 218 (Ala.1982), involving a mandatory consideration of each of the factors enumerated in Section 12-15-34(d). Gulledge v. State, 419 So.2d 219 (Ala.1982); Mayne v. State, 416 So.2d 741 (Ala.1982); Bragg v. State, 416 So.2d 715 (Ala.1982); McKinney v. State, 404 So.2d 639 (Ala.1981). While "legislation compels consideration of each of the six factors", Reeves, 419 So.2d at 218, the weight to be given each of those factors in balancing the interests of the juvenile and society must be left to the sound discretion of the juvenile court judge. Even though some of the factors may indicate that it would be in the best interest of the child and the public to treat the youth as a juvenile, the judge may still order treatment as an adult after weighing all the factors and circumstances involved.

"It is not necessary that all the factors be resolved against the juvenile in order to justify the waiver of juvenile court jurisdiction, nor is it necessary that the court make an arithmetic calculation as to the weight to be assigned to each factor, but all factors must be considered. The court is not bound by the recommendations of public agencies ...." 43 C.J.S. Infants Section 46 (1978).

"(T)he final determination of whether to transfer the minor for criminal prosecution must be made by the juvenile court judge, and not by the state's attorney, probation officer, experts, or a parent." 43 C.J.S. Infants Section 48. The judge can make that determination only after considering and weighing each and every factor listed in Section 12-15-34(d). ¹

In reviewing an order transferring a juvenile to the circuit court for criminal prosecution as an adult, this Court is limited to considering whether the juvenile court abused its discretion considering the totality of the circumstances involved. "In reviewing the record, this court has held that it will not interfere with a lower court's order transferring a juvenile to circuit court unless that order is clearly erroneous." Mayne v. State, 416 So.2d 741, 742 (Ala.1982). "The question involved on such review is not whether the reviewing court would reach a different conclusion, but whether the decision reviewed has a rational basis and is not arbitrary or capricious." 43 C.J.S. Infants Section 49(b). Neither this Court nor our Supreme Court will interfere with the transfer order of the juvenile court unless it is "clearly erroneous". Williams v. State, 361 So.2d 1157 (Ala.1978).

Our review convinces us that the juvenile court judge made a careful and conscientious determination that the case should not be handled in the juvenile system. Her findings are supported by evidence and are due to be affirmed by this Court. Bragg v. State, 416 So.2d 715 (Ala.1982); Duncan v. State, 394 So.2d 930 (Ala.1981).

II

Whisenant contends that because there was no evidence presented at the transfer hearing to corroborate his confession, the juvenile court judge could not make a proper finding of probable cause.

Under Alabama Code Section 12-15-66(b), "(a)n extrajudicial admission or confession made by the child out of court is insufficient to support a finding that the child committed the acts alleged in the petition unless it is corroborated by other evidence." The juvenile court judge held that this section did not apply to a transfer hearing which involves a finding of probable cause and not a determination of guilt. See Vincent v. State, 349 So.2d 1145 (Ala.1977), wherein our Supreme Court determined that the uncorroborated testimony of an accomplice was sufficient basis for finding probable cause. See also Gulledge v. State, 419 So.2d 219 (Ala.1982); Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975).

Here, as in Ash v. State, 424 So.2d 1381, 1387 (Ala.Cr.App.1982), the juvenile's confession was "self-verifying and corroborated by the physical details of the crime itself and the location of the (victim's) body. The circumstances of the homicide are such that only the perpetrator would have had knowledge of the details of the crime." In such a situation, probable cause to believe that the juvenile committed the crimes alleged in the petition is not supplied solely by the juvenile's uncorroborated confession.

III

Whisenant also argues that there was insufficient evidence presented at the transfer hearing to support a finding of probable cause as to the burglary charge. We disagree.

The only standard of proof which must be met in order to support the transfer of a juvenile to the circuit court for adult criminal prosecution is "whether a reasonable man would believe the crime occurred and that the defendant committed it." Duncan, 394 So.2d at 932. The evidence need not be "overwhelming" and "guilt" need not be proven beyond a reasonable doubt. Duncan, 394 So.2d at 932.

Evidence of the burglary was provided by Whisenant's confession with corroboration by an investigating officer. In his handwritten statement, Whisenant admitted his crimes:

"I got to Alan Frix house about 9:15. I shot out the glass and opened the back door went inside the house smoked me a cigarette turned on the T.V. and sat down in the chair in the den. Went into the master-bedroom got cleaned up went back to the den and smoked another cigarette and watched T.V. Then I heard him pull up and I took the gun and went into one of the bedrooms and waited. He came in through the hall and said, 'Darrell, I know your in here, so come out.' I then waited until he turned around and shot him once, the once again. I then ran to the kitchen and got a steak knife. I ran back to the hall and threw down the knife and hit him over the head 2 times with the pistol then shot him 4 more times. I then dragged him to the bedroom and searched him and took money, lighter, and car keys. I put him behind the bed and wall, locked the door, put a bathroom mat over bloodstains in hall. Got duffle bag, coats and left."

In another statement, Whisenant admitted that he went in the house with the intention of killing Alan Frix.

At the transfer hearing on the burglary charge, it was stipulated that Detective Harry Renfroe, Jr. would testify that "a window in the rear door of that residence had been broken out and that a quantity of glass was found adjacent to the window on the inside of the door and that that door was open."

The victim was killed sometime after 9:00 on the morning of March 17, 1983. The victim's car was located and stopped shortly after 10:00 that same night. Whisenant was driving. "The possession of goods recently stolen in burglary affords a logical inference that the possessor--without a satisfactory explanation--was the burglar." Miller v. State, 43 Ala.App. 287, 289, 189 So.2d 576, cert. denied, 280 Ala. 715, 189 So.2d 580 (1966).

This evidence is more than sufficient to supply probable cause to believe that Whisenant "did, knowingly enter or remain unlawfully in a building of Alan Frix, ... with intent to commit a crime therein to-wit: Theft of Property" as charged in the petition. The fact that this same evidence also supplies probable cause to believe that Whisenant is guilty of burglary in the first degree...