R.J.D. v. State , 799 P.2d 1122 ( 1990 )

OPINION

JOHNSON, Judge:

R.J.D., minor Appellant, has appealed a determination by the District Court of Cleveland County that he be certified to stand trial as an adult charged with the crime of First Degree Murder, Case No. JFJ-89-63, the Honorable Alan Couch presiding.

Appellant was charged with the crime of Murder in the First Degree pursuant to 21 O.S. § 701.7(A), and on the 18th day of April, 1989, a prosecutive merit hearing was held and the court determined merit existed. Thereafter, a Certification Hearing was conducted and the court determined that the minor should be certified to stand trial as an adult. Appellant asserts that there was insufficient evidence to make the finding of prosecutive merit due to the fact of certain inadmissible testimony in violation of appellant’s Fifth and Sixth Amendment rights. As it relates to this error, some background evidence must be given.

At the merit hearing held on April 18, 1989, the McCloud Chief of Police, Wayne Heath, testified that he knew the juvenile involved and his family from birth. He stated that he was first contacted during the early morning hours of March 4, 1989, relative to a homicide at Deer Run Foods and it was indicated that the juvenile and two other individuals may have been involved. The next day on two separate occasions, the police chief went to the juvenile’s residence and talked with appellant, his mother and step-father. The Miranda warning was issued to the appellant at the first discussion and the appellant denied any knowledge of the facts. Later that same day, a detective for the McCloud Police Department, Steve Lackey, indicated to the chief that the juvenile’s uncle had called and that the juvenile wanted to turn himself in. When the chief approached the house, the youth’s uncle handed him a SO-SO rifle and when asked “Is this the weapon?”, replied “Yes”.

The juvenile was then taken to the McCloud Police Station along with his mother and step-father. Bill Ware, a detective with the McCloud Police Department, testified that he was present when the juvenile, in the presence of his mother and step-father, was advised of his rights and this interview terminated when the juvenile’s mother indicated that she wanted an attorney present for any formal questioning.

The youth was then taken by a detective from the Oklahoma City Police Department to Oklahoma City for interrogation. Two detectives with the Oklahoma City Police Department conducted the interview at approximately 5:00 p.m. on a Saturday afternoon. The juvenile’s mother was present during the interview but prior to the interview indicated that she wanted to talk with an attorney and a telephone was made available to her for this need. The evidence indicates that a phone call was made but does not give specifics as to who was called. Also, it should be pointed out that during the interrogation of the young man, with parent present, the youth turned to his mother and said “I think we should talk to a lawyer”.

Suzanne Lackey, the juvenile’s aunt, testified that on the day of the interview, the juvenile’s mother contacted her about obtaining a lawyer. She contacted an attorney and after talking with such attorney also contacted the Oklahoma City Police Department and talked with a sergeant at the Oklahoma City Police Department and informed the sergeant that the attorney had advised the mother and the juvenile to refrain from making any statement until he had talked with the attorney. The aunt asked that this message be related and, in addition, the aunt made a second call with the same request to the sergeant who told her at that time that he was too busy to run up and down the halls delivering messages. It is important to note that both of these phone calls occurred prior to the time that the youth was interrogated. Further, this occurred late on a Saturday afternoon when most attorneys are hard to find and are not in the habit of going to the police department to help protect the rights of clients. The message that was given to the sergeant was never relayed to the youth or parent.

In the first assignment of error, the appellant asserts that there was insufficient evidence to make a finding of prose-cutive merit, due to the fact that the testimony concerning the confession was a violation of the youth’s Fifth and Sixth Amendment rights and without the confession there would have been no evidence that the appellant committed the crime. Appellant argues that the statement or confession was inadmissible and it was not free and voluntary. We agree.

Oklahoma by statute, as well as case law, require that prior to any questioning a youth must be fully advised of his or her constitutional and legal rights, that a parent, guardian, attorney or legal custodian of the child must be present during such interrogation, and that if the youth or family cannot afford an attorney, an attorney will be provided. 10 O.S. § 1109(A). J.A.M. v. State, 598 P.2d 1207 (Okl.Cr.1979).

The critical question before the Court is whether the initial interrogation in McCloud when the parent, acting as such parent, attorney or advisor of the child requests an attorney, can the interrogation continue in Oklahoma City with detectives who are unaware of this request. This Court has not made a ruling heretofore as it relates to such question.

The U.S. Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) discussed the Fifth and Sixth Amendment protection as it relates to self-incrimination in statements made without counsel present. The court in a more recent decision in Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), went further to formulate rules as it relates to safeguards of rights of an accused who has asked for counsel. It is our holding that by the mother asking for an attorney to be present before any additional interrogation was commenced, she satisfies the Edwards ruling.

As noted in Edwards, the second interrogation was on a subsequent day by two detective colleagues of the first interrogator. This is somewhat similar to the situation we have here. By this decision, we do not hold that there was or was not prosecu-tive merit. There may have been sufficient evidence outside of the confession or statement for the court to find prosecutive merit and the trial court must make this ruling based upon the opinion herein.

The question as to whether or not the statement or confession may be admitted can be raised at any time during the trial proceedings including, but not limited to, preliminary hearing, special motion or at trial. J.D.L., Jr. v. State, 782 P.2d 1387 (Okl.Cr.1989).

The request for an attorney made on behalf of the defendant by the mother appears to be unequivocal. If there is any question as to the request or demand being clear enough, this has been answered by the U.S. Supreme Court. Smith v. Illinois, 469 U.S. 91, 105 S.Ct. 490, 83 L.Ed.2d 488 (1984). In that case, the court was clear as to how you determine whether or not the request or statement is clear and concise. The court further adopts the “bright-line rule” stating that once the request is made, all questioning must cease after an accused requests counsel. Smith, Solem v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984). Therefore, we hold that the statements or confession made by the defendant in this case would be inadmissible due to the fact that an attorney was not provided by defendant or the State prior to the second interrogation and the defendant did not initiate the interrogation.

In his second and third assignments of error, the juvenile contends that the State failed to show sufficient evidence that the juvenile was not amenable to rehabilitation within the juvenile system and that shortcomings in the juvenile system may not be the basis for certification. The finding that a juvenile is not amenable to rehabilitation within the juvenile system is a discretionary decision to be made by the judge, but the decision must be based on substantial evidence against the claim of the juvenile that the benefit of the juvenile system would lead to rehabilitation. J.D.L., Jr. v. State, 782 P.2d 1387, 1392 (Okl.Cr.1989). See also, E.O. v. State, 703 P.2d 192, 193 (Okl.Cr.1985) and C.S.M. v. State, 599 P.2d 426, 430 (Okl.Cr.1979).

Our examination of the record of the certification hearing indicates that the judge based his decision on the six (6) factors set forth in 10 O.S.1981, § 1112(b), after considering the testimony of the witnesses and reviewing the file. The State presented three witnesses and the defense six witnesses. Mere numbers of witnesses on one side or the other is not the criteria. In this instance, the court is the judge of the facts and the judge at that hearing must make a decision based upon the persuasiveness of the evidence and not mere numbers.

Absent an abuse of discretion, the juvenile judge, as trier of fact, has the discretion and the prerogative to assess the credibility of the witnesses and to weigh and value their testimony and opinions. Accordingly, the judge may base his decision on evidence on one side as against that of several witnesses on the other side, who testify either to the contrary or to a contrary state of facts. An “abuse of discretion” has been defined by this Court as a “clearly erroneous conclusion and judgment, one that is clearly against the logic and effect of the facts presented in support of and against the application.” Stevens v. State, 94 Okl.Cr. 216, 232 P.2d 949, 959 (1951). When all the evidence concerning rehabilitation is considered, we cannot say that the trial judge abused his discretion in finding that the juvenile was not amenable to rehabilitation in the juvenile system. See K.C.H. v. State, 674 P.2d 551, 552 (Okl.Cr.1984); J.A.M. v. State, 598 P.2d 1207, 1210 (Okl.Cr.1979). Therefore, we affirm the findings of the court as it relates to the court’s finding of non-amenability.

Accordingly, the order of the juvenile court’s finding of non-amenability is AFFIRMED but the case is REVERSED and REMANDED for the reasons as set forth herein as it relates to a hearing on prosecu-tive merit.

BRETT and LUMPKIN, JJ., concur. PARKS, P.J., and LANE, V.P.J., concur in part, dissent in part.