State v. Layne , 546 S.W.2d 220 ( 1976 )

OPINION

SHRIVER, Judge.

The Case

T. Brian Layne, a juvenile, was fifteen years of age at the time he was arrested and charged with Armed Robbery which occurred on the night of August 17, 1974. A hearing was held by the Honorable Grady Barker, Judge of the Juvenile Court of Se-quatchie County, Tennessee, on October 9, 1974, on petition of the District Attorney General, pursuant to Sections 37-224, 37-226 and 37-234, T.C.A. The Juvenile Judge held that the defendant, T. Brian Layne, should be held for prosecution and sentencing as an adult in the Circuit Court of Sequatchie County, pursuant to T.C.A., § 37-234.

The holding of the Juvenile Court was duly appealed to the Circuit Court of Se-quatchie County, as authorized by T.C.A. § 37-258, and was tried de novo in that Court before Judge Paul A. Swafford who affirmed the judgment of the Juvenile Court that the defendant should be tried as an adult.

From the foregoing actions, the case was appealed to this Court and assignments of error filed.

The Proceedings Below

The order entered in the Juvenile Court recites that the cause came on to be heard before the Honorable Grady Barker, Judge of the Juvenile Court in Sequatchie County, Tennessee, on October 9, 1974, on the petition of J. William Pope, Jr., District Attorney General, pursuant to Sections 37-224, et seq., T.C.A., whereupon it appeared, after a full investigation and hearing, that the defendant, J. Brian Layne, is a juvenile, 15 years of age, and is alleged to have committed robbery by the use of a deadly weapon on the premises of Mr. and Mrs. B. Thurman Davis at their home in Sequatchie County, Tennessee, on the night of August 17, 1974, and the Court, after hearing the evidence, finds that there are reasonable grounds to believe that the defendant committed the delinquent act alleged and does so find beyond a reasonable doubt. The order further recites that the Court determined that the juvenile had been previously committed by the Court as an unruly child, from all of which:

“. . . The Court makes the finding from the entire record that the said T. Brian Layne is not amenable to treatment or rehabilitation as a juvenile through available facilities and that he is not mentally retarded or mentally ill and that the interest of the community requires that the juvenile be placed under legal restraint or discipline.”

On appeal to the Circuit Court, and after a hearing, the following order was entered:

“ORDER AFFIRMING JUDGMENT OF JUVENILE COURT

This cause came on for hearing before the Honorable Paul A. Swafford, Circuit Judge, Part I, upon the appeal of T. Brian Layne from a prior adjudication of the Juvenile Court of Sequatchie County wherein T. Brian Layne was fifteen years of age at the time of said hearing and was fifteen years of age at the time of the alleged commission of the delinquent act, to-wit: Armed Robbery — robbery accomplished by the use of a deadly weapon upon the persons of Mr. and Mrs. Thurman Davis on August 17, 1974. At said hearing the Juvenile Court found that there was reasonable grounds to believe that the said T. Brian Layne committed the aforesaid act and that T. Brian Layne was not amenable to treatment or rehabilitation as a juvenile through available facilities and that the said T. Brian Layne was not committable to an institution for the mentally retarded or mentally ill and that the interest of the community required that the said T. Brian Layne be held under legal restraint.”

The said order proceeds by stating the Juvenile Court transferred custody of the defendant to the Sheriff of the County to be held and dealt with as an adult, whereupon, defendant’s attorney timely perfected an appeal to the Circuit Court where the matter came on to be tried de novo and where testimony was heard in open Court.

The order recites that after reviewing transcripts of the Juvenile Court and considering the testimony and the entire record, the Court was of opinion that the judgment of the Juvenile Court should be affirmed.

The order concludes:

“IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED that the judgment of the Juvenile Court be and the same is hereby affirmed, to which action the defendant excepts and prays an appeal to the next term of the Court of Appeals sitting in Nashville, which appeal the Court grants under the conditions the defendant will remain under appearance bond as previously set forth and will file his bill of exceptions within nineth [sic] days.

This 1st day of May, 1975.

ENTER:

/s/ Paul A. Swafford

CIRCUIT JUDGE,

PART I”

Assignments of Error

There are four assignments, as follows:

Assignment No. 1 charges that there is no evidence to support the verdict and judgment of the Court.

Assignment No. 2 asserts error “because the verdict or judgment of the Trial Judge is contrary to the law and the evidence.”

Assignment No. 3 asserts that T.C.A. § 37-234 is too broad and vague and is in violation of the Fourteenth Amendment of the United States Constitution and Article I, Section 1 of the Tennessee Constitution.

Assignment No. 4 asserts that the Trial Court erred in holding that there were reasonable grounds to believe that the defendant was not amenable to treatment or rehabilitation as a juvenile through available facilities and that he be placed under legal restraint in violation of the foregoing provisions of the State and Federal Constitutions.

The Facts

A brief summary of the facts is as follows:

Mr. Thurman Davis and his wife testified that they lived alone in their home in Se-quatchie County; that on Saturday night, August 17,1974, they were alone at home in bed and that at approximately 11:25 P.M., a person known to them as Benny Wallace came to their door and asked permission to use the telephone, stating that he had car trouble. Mr. Davis admitted him to the house, and while he was using the telephone, Brian Layne came in the front door with a gun in his hand. Mrs. Davis was still in bed and Benny Wallace went into the bedroom and told her to get out of bed and come into the living room where she and her husband were both made to sit down. While Benny Wallace stayed in the living room holding a gun, Brian Layne went through the house gathering up personal belongings of the Davis’s which he piled up in the living room. They also took a billfold which had a little less than $200.00 in it. Among the items brought into the living room was a gun belonging to Mr. Davis and, at an opportune time, Mr. Davis grabbed this gun and shots were exchanged wherein Mr. Davis was wounded with a shot in his back and Benny Wallace was also injured.

After a search of the house and before the shooting occurred, Benny Wallace told Mr. and Mrs. Davis that he was going to kill them. Appellant later testified that he told Wallace he did not desire to kill the victims. Mr. Davis was not sure as to which of the two fired the shot that wounded him but he and Mrs. Davis escaped from the house and were able to get in their car and drive to the hospital. One of the two intruders shot at them as they drove away.

Appellant admitted his participation in the crime. He stated that he was fifteen years old at the time and stated that prior to this time his parents had asked the Juvenile Judge to send him to the Tennessee Preparatory School because he was not attending school regularly and because he was staying away from home and associating with Benny Wallace. After being sent to the Tennessee Preparatory School, he remained there for a few weeks and approximately four weeks prior to the Davis robbery Wallace went by the school and defendant, Brian Layne, ran away with him and stayed with Wallace during the time prior to his arrest. He denied that he ever threatened Mr. or Mrs. Davis and although Benny Wallace was a convicted felon and an adult, the defendant denied knowing that Wallace had been charged and convicted of a crime previous to the Davis robbery.

Selby Seals, Sheriff of Sequatchie County, testified that he arrested Brian Layne and, after he was treated for a flesh wound, he was taken to the Sequatchie County Jail. He stated that he had known the boy all of his life and the only complaint that he ever had against him was when he would not stay at home and his father asked him, the Sheriff, to pick the boy up because he was not staying at home and was not going to school regularly.

The Juvenile Judge, Grady Barker, testified briefly as to the hearing in his Court and his disposition of the case.

Dr. J. E. Gilliland, a psychologist with a Ph.D. in Psychology and whose qualifications were admitted by the State and who is licensed to practice in Tennessee, testified that he had made a psychological examination of Brian Layne; that he did not find the boy to be suffering from any mental problem except that he had remorse and guilt which could be expected under the circumstances. He found that the boy had some frustration. When asked whether in his opinion the defendant was amenable to treatment and rehabilitation as a juvenile, he stated that the boy had an average IQ and that he probably should be in a vocational technical school to learn a trade and that he needs counseling. He stated that there was nothing about the boy’s character that alarmed him enough that he would say he was afraid that the boy might be dangerous to the community.

On cross-examination, among other things, Dr. Gilliland stated:

“I think he’s very impressionable and if he goes to a penitentiary with adults I think that would have an unfavorable impression upon him.”

Mr. Harry Rowland, Principal of Sequat-chie County High School, testified that Brian was in his Third Year in High School; that since he has been out of jail, his attendance has been very good; that he had noticed a change in the boy’s attitude and that he did not cause any serious problems in school.

Gary Chrisman, one of the Coaches at the High School, commented on Brian’s physical ability and his interest in athletics.

Mr. Barrett, a Guidance Counselor at the High School, described a conference with the defendant and, in answer to the question as to whether, in his psychological opinion, Brian Layne was amenable to treatment or rehabilitation as a juvenile through available facilities, he answered:

“My opinion is that Brian is certainly capable of doing a good job, and I think he’s capable of living the kind of life that he needs to live and be accepted in society. I believe that Brian is capable of doing that.”

On being questioned as to the attitude of other students toward Brian since his trouble arose, among other things, he said:

They think of him as a young man and I haven’t heard one student that would be very abusive in a situation that he is in now.”

Donna Bone who teaches a Sunday School Class in the Community Baptist Church where Brian attends, stated that his attendance at Church and Sunday School has been regular since he was released from jail and that she had noticed a change in him.

Brian Layne’s father testified, among other things, that he has noticed that since Brian got out of jail, his attitude is different and he has been a good boy.

Our Conclusions

It is to be noted that Title 37 of the Code, “Juveniles,” was revised and re-enacted by Chapter 600, Acts of 1970, comprising Sections 37-101, et seq., of the Code.

In Section 37-229, T.C.A., among other things, it is provided:

“ . . .In the absence of evidence to the contrary, evidence of the commission of acts which constitute a felony is sufficient to sustain a finding that the child is in need of treatment or rehabilitation.”

Section 37-234, T.C.A., entitled “Transfer from Juvenile Court,” provides that after a petition has been filed alleging delinquency based on a crime or public offense, the Court may transfer the child to the Sheriff of the County to be held according to law and:

“The disposition of said child shall be as if he were an adult if:

(1) the child was sixteen (16) or more years of age at the time of the alleged conduct ... if the offense charged included murder, rape, robbery with a deadly weapon or kidnapping;

* * * * * *

(4) the court finds that there are reasonable grounds to believe that

(i) the child committed the delinquent act alleged;

(ii) the child is not amenable to treatment or rehabilitation- as a juvenile;

(iii) the child is not committable to an institution for the mentally retarded or mentally ill; and

(iv) the interests of the community require that the child be placed under legal restraint or discipline.

“(f) . . . After a child has been sentenced to an adult institution the department of correction may file a petition requesting the committing court to allow the department to transfer said defendant to an institution for juvenile delinquents. Upon the approval by such court the defendant may be transferred by the department of correction to a child caring institution to be held until his eighteenth birthday. At the defendant’s eighteenth birthday he or she may be transferred to an adult institution if there is time remaining on the defendant’s term. If the term expires prior to the eighteenth birthday said defendant shall be released. Any child sentenced by a committing court pursuant to this section shall, for the purpose of parole, be treated as if he were an adult.”

Under the statutes and under the decisions, upon judgment by the Juvenile Court that defendant should stand trial as an adult, the case is appealable to the Circuit Court where it is tried de novo with a presumption of correctness of the Juvenile Court’s findings. See In re Houston, 221 Tenn. 528, 428 S.W.2d 303 (1968).

As to the assignments which assert that the Juvenile Court Act, particularly Section 37-234, is so vague that men of common intelligence cannot understand it without guessing at its meaning and application and is, therefore, void as violative of the State and Federal Constitutions, the Tennessee Supreme Court in State ex rel. Davis v. Strickland, Hamilton Law, filed December 8, 1975, found this argument to be without merit. The Opinion states:

“Lastly, defendants argue that T.C.A. § 37-234 is unconstitutional because it is overbroad and vague. The assignment is without merit. The basic concept behind the vagueness doctrine is the idea of fairness, and that the statute should be sufficiently specific to provide notice of the type of conduct expected. The doctrine should not be used to create a constitutional dilemma out of the practical difficulties in drawing statutes. Colten v. Commonwealth of Kentucky, 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d [584] 548 (1972). The lack of precision in a statute does not render a statute unconstitutional per se. See Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Judged by these standards the language of T.C.A. § 37-234 is constitutionally adequate in that it establishes criteria upon which the Juvenile Judge is to base his decision on whether to transfer the juvenile to the Criminal Court, and it adequately informs the parties as to what is to be considered by the Judge.”

We are of opinion, in line with Strickland, that the assignments of error based on unconstitutionality are without merit and are, therefore, overruled.

Applying the holdings of the Supreme Court in Strickland, supra, it would seem that the decision in the case at bar as to whether the Lower Court should be affirmed and the case remanded for the defendant’s trial in the Circuit Court as an adult is not to be determined on the basis of what we might conceive to be the preponderance of the evidence that was presented in the Juvenile Court and in the Circuit Court. In Strickland, the Supreme Court, speaking through Chief Justice Fones, said:

“Defendants next argue that there is insufficient evidence in the record to support a finding that the juveniles are not amenable to treatment or rehabilitation (4)(ii). The Court is only required to find that there are ‘reasonable groúnds’ upon which to base a finding that a juvenile is not amenable to rehabilitation. The Juvenile Court, in its role of parens patriae is placed in a unique position with regard to the persons appearing before it. The Juvenile Judge is experienced in the evaluation of youthful offenders and is given a wide range of discretion in attempting to establish the most beneficial course of action in rehabilitating those offenders. In making a decision whether a juvenile is amenable to treatment or rehabilitation, the Juvenile Judge may consider many factors including testimony by expert witnesses, the type of facilities available, length of stay in these facilities, the seriousness of the alleged crime, and the attitude and demeanor of the juvenile.”

At another point in Strickland it was said:

“The juveniles here have not been tried upon any charge; their guilt or innocence has not been adjudicated. They have no constitutional right to a jury trial at what is essentially a probable cause hearing. Nor is there a statutory right to a jury trial as T.C.A. § 27-234(a)(4) provides that the Judge shall make the factual determination at the transfer hearing.”

As to the procedure that has been followed in the case at bar it is interesting to note that in Strickland, a similar proceeding was followed as noted in the Strickland Opinion where the Court said:

“The Juvenile Court of Hamilton County, after receiving evidence at the transfer hearing, determined that the petitioner should be transferred to the Criminal Court and tried as an adult. That judgment was affirmed on de novo appeal by the Circuit Court of Hamilton County. An appeal was then taken to the Court of Appeals which affirmed the transfer to Criminal Court.”

As is pointed out by the Supreme Court in Strickland, the juvenile in the case at bar has not been tried on any charge; his guilt or innocence has not been adjudicated since the hearing in the Juvenile Court and on appeal to the Circuit Court was essentially a probable cause hearing and the final outcome of the defendant’s trial before a Court and jury is yet to be determined.

Applying the reasoning in Strickland to the case at bar, we are of opinion that the judgment below should be affirmed. Accordingly, the assignments of error are overruled, the judgments of the Juvenile Court and the Circuit Court are affirmed and the cause is remanded to the Circuit Court of Sequatchie County for trial as above indicated.

AFFIRMED AND REMANDED.

TODD and DROWOTA, JJ., concurs.