D.M.H. v. State

ACCELERATED DOCKET ORDER ¶ 1 Appellant was fifteen years old when he was charged as a juvenile delinquent with Attempted Rape By Instrumentation, Assault, and two counts of Intimidation of a Witness, in the District Court of Nowata County, Case No. JF-2005-5.¹ He was adjudicated delinquent after a non-jury trial held on March 3, 2005 and placed in the custody of his father pending a disposition hearing and placement in a juvenile facility. Following a disposition hearing on March 31, 2005, the juvenile court judge placed Appellant in the custody of the Office of Juvenile Affairs and confined him to the L.E. Rader Juvenile Center. Appellant appeals his adjudication as a juvenile delinquent. *Page 1055

¶ 2 Pursuant to Rule 11.2(A)(3), Rules of the Oklahoma Courtof Criminal Appeals, Title 22, Ch. 18, App. (2005), this appeal was automatically assigned to the Accelerated Docket of this Court. The Court heard oral argument on Appellant's claim of error on June 9, 2005, and advised the parties of its decision to grant relief at the conclusion of that hearing.² WeREVERSE and REMAND this case to the District Court of Nowata County for a new trial.

¶ 3 This case raises the single question of what is required under Oklahoma law for a juvenile to waive his right to a jury trial in a delinquency proceeding. When his case was called for trial, Appellant neither objected nor requested a trial by jury. Nor did the juvenile court make any kind of record regarding Appellant's waiver of his right to trial by jury. We consider whether a juvenile's failure to demand his right to a jury trial constitutes a valid waiver or whether, as in adult cases, there must be a record made reflecting a knowing and intelligent waiver of the right to trial by jury.

¶ 4 Juveniles historically have not been afforded the same procedural rights as adults, including the right to trial by jury. In re Gault, 387 U.S. 1, 14, 87 S.Ct. 1428, 1436,18 L.Ed.2d 527 (1967). The denial of many procedural due process rights early on was justified on the theory that the goal in juvenile proceedings is treatment instead of punishment and the State acts as parens patriae. Id. at 15-17,87 S.Ct. at 1437-38. The Court explained in Gault:

The right of the state, as parens patriae, to deny to the child procedural rights available to his elders was elaborated by the assertion that a child, unlike an adult, has a right `not to liberty but to custody.' He can be made to attorn to his parents, to go to school, etc. If his parents default in effectively performing their custodial functions — that is, if the child is `delinquent' — the state may intervene. In doing so, it does not deprive the child of any rights, because he has none. It merely provides the `custody' to which the child is entitled. On this basis, proceedings involving juveniles were described as `civil' not `criminal' and therefore not subject to the requirements which restrict the state when it seeks to deprive a person of his liberty.

Id. at 17, 87 S.Ct. at 1438 (s omitted).

¶ 5 The Gault Court rejected the view that allowing juveniles basic procedural rights would somehow thwart the goals and effectiveness of the juvenile justice system. Id. at 21-27,87 S.Ct. at 1440-43. It reasoned "[a] proceeding where the issue is whether the child will be found to be `delinquent' and subjected to the loss of his liberty for years is comparable in seriousness to a felony prosecution." Id. at 36, 87 S.Ct. at 1448. Given the potential for serious consequences that could affect a juvenile for life,³ the Court held that a juvenile has the right to notice of the charges against him,⁴ to counsel,⁵ to remain silent⁶ and to confront and cross-examine witnesses.⁷

¶ 6 Four years after Gault, the Supreme Court considered whether jury trials were *Page 1056 constitutionally required in the adjudicative stage of a state juvenile delinquency proceeding. In a plurality opinion, the Court concluded that a jury trial was not constitutionally required under the federal constitution.⁸ McKeiver v.Pennsylvania, 403 U.S. 528, 545, 91 S.Ct. 1976, 1986,29 L.Ed.2d 647 (1971) (plurality). And this Court has not construed the Oklahoma Constitution to establish such a right.⁹ Thus Appellant cannot claim that the state denied him his right to substantive due process because there is no constitutional right to a jury trial in an adjudication hearing under the Due Process Clause.

¶ 7 The legislature, however, has given juveniles a statutory right to a jury trial in the adjudicative stage of a juvenile delinquency proceeding. Title 10 O.S. 2001, 7303-4.1 provides:

In adjudicatory hearings to determine if a child is delinquent or in need of supervision, any person entitled to service of summons or the state shall have the right to demand a trial by jury, which shall be granted as in other cases, unless waived, or the judge on the judge's own motion may call a jury to try any such case. Such jury shall consist of six persons.

¶ 8 Appellant's claim regarding the denial of his statutory right to a jury trial must focus on whether the state comported with the requirements of procedural due process. This is so because a state law may create a liberty interest that cannot be denied without offending due process principles. See Clemons v.Mississippi, 494 U.S. 738, 746-47, 110 S.Ct. 1441, 1447-48,108 L.Ed.2d 725 (1990); Ross v. Oklahoma, 487 U.S. 81, 91,108 S.Ct. 2273, 2279-80, 101 L.Ed.2d 80 (1988); Hicks v. Oklahoma,447 U.S. 343, 346, 100 S.Ct. 2227, 2229, 65 L.Ed.2d 175 (1980). The due process standard in juvenile proceedings is fundamental fairness. McKeiver, 403 U.S. at 543, 91 S.Ct. at 1985.

¶ 9 Section 7303-4.1 requires the juvenile to demand a jury trial before one will be provided.¹⁰ Before a right may be demanded, however, the person upon whom the right is conferred must know that he has such a right to demand. At oral argument, counsel *Page 1057 for Appellant stated that he could not clearly remember if Appellant was advised of, and affirmatively waived, his right to jury trial during their discussions. Counsel thought he discussed the matter with Appellant on at least one occasion prior to trial, but could not remember when that discussion occurred, or if that discussion took place the day of trial. If such a discussion occurred, it was counsel's opinion that either he misunderstood Appellant's response or that Appellant misunderstood counsel's question when the issue of a jury trial was discussed. Appellant, according to counsel, had no recollection of such a discussion.¹¹

¶ 10 Presuming a valid waiver of the right to trial by jury from a naive child's silence strikes us as fundamentally unfair. Had Appellant been charged as an adult, lack of an affirmative waiver of his right to a jury trial would constitute reversible error. See Valega v. City of Oklahoma City, 1988 OK CR 101, ¶5, 755 P.2d 118, 119; Bench v. State, 1987 OK CR 191, ¶¶ 6-7,743 P.2d 140, 142. To require anything less in an adjudication proceeding creates the potential for a juvenile to forfeit his right to a jury trial, when the resulting consequences may be no less severe than for an adult similarly charged. To the extentEx Parte Norris, 1954 OK CR 34, ¶¶ 9-10, 268 P.2d 302, 304-05 is inconsistent with this decision, it is overruled.

¶ 11 It is incumbent upon the juvenile court judge to make a record of a waiver of a juvenile's right to trial by jury. The juvenile court judge shall not accept a waiver unless the juvenile, after being advised by the court of his right to a trial by jury and consulting with counsel, personally waives his right to trial by jury in open court on the record. For a waiver to be valid, there must be a clear showing that the juvenile waived his right competently, knowingly and intelligently. SeeLong v. State, 2003 OK CR 14, ¶ 3, 74 P.3d 105, 107; Bench,1987 OK CR 191, ¶ 6, 743 P.2d at 142; Kerr v. State,1987 OK CR 136, ¶ 10, 738 P.2d 1370, 1372. The juvenile court judge should inquire of the juvenile to assure herself that the right to a jury trial was expressly and intelligently waived. See Long,2003 OK CR 14, ¶ 3, 74 P.3d at 107; Kerr, 1987 OK CR 136, ¶ 10,738 P.2d at 1372. Ideally as part of the record on waiver, the juvenile should execute a written waiver signed by both the juvenile and his or her counsel.

¶ 12 Counsel in this case was confused about whether or not the issue of a jury trial was properly discussed, understood and knowingly waived by his client, a 15 year old juvenile. We refuse to find that Appellant validly waived his right to a jury trial in his adjudication proceeding absent a competent, knowing and intelligent waiver of that right on the record.

¶ 13 IT IS THEREFORE THE ORDER OF THIS COURT, by a vote of three to one that the order of the District Court of Nowata County adjudicating Appellant delinquent in Case No. JF-2005-5 is hereby VACATED. This matter is remanded to the District Court of Nowata County for proceedings consistent with this opinion.

¶ 14 Pursuant to Rule 3.15, Rules of the Oklahoma Court ofCriminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE isORDERED issued upon the delivery and filing of this decision.

¶ 15 IT IS SO ORDERED.

¶ 16 WITNESS OUR HANDS AND THE SEAL OF THIS COURT this 7th day of June, 2006.

/s/ Charles S. Chapel CHARLES S. CHAPEL, Presiding Judge

/s/ Gary L. Lumpkin DISSENT GARY L. LUMPKIN, Vice Presiding Judge

/s/ Charles A. Johnson CHARLES A. JOHNSON, Judge

/s/ Arlene Johnson ARLENE JOHNSON, Judge.

¹ Appellant's date of birth is October 17, 1989, making him 14 years old on the dates these offenses were alleged to have been committed; 15 years old at the time the charges were filed. The three charges are related, but did not occur on the same day. The first charge arose out of an incident at the local swimming pool involving the juvenile putting his hands down the front bottom of a classmate's swim suit. The second charge involved this same classmate on the school bus where the juvenile pulled down his pants in front of her and later told another boy to hold her arms while he pulled her shirt down exposing the top of her breasts. The remaining charges involve the juvenile asking two other classmates to beat up the victim because she was accusing him of molesting her.

² An interim order was issued on June 9, 2005, vacating the juvenile court's disposition order in Appellant's Case No. JF-2005-5, and ordering his immediate release from the custody of the Office of Juvenile Affairs.

³ For example, an adjudication as a juvenile delinquent for the offense of Attempted Rape by Instrumentation in Oklahoma results in the delinquent's classification as a juvenile sex offender. See 10 O.S. 2002, § 7308-1.2[10-7308-1.2]. This classification could result in a juvenile being required to register annually with the Office of Juvenile Affairs (O.J.A.) as a sex offender, and could result in transfer of his name to the adult Sex Offender Registry upon being released from O.J.A. custody or reaching the age of twenty-one. See 10 O.S. 2002, §§ 7308-1.4[10-7308-1.4], 7308-1.7, and 7308-1.9.

⁴ Id. at 33-34, 87 S.Ct. at 1446-47.

⁵ Id. at 36-37, 87 S.Ct. at 1448.

⁶ Id. at 55, 87 S.Ct. at 1458.

⁷ Id. at 57, 87 S.Ct. at 1459. Oklahoma's Juvenile Code requires the filing of a petition stating the nature of the proceeding and setting forth the relief requested; entitles the interested parties to have an attorney present; requires service of a summons upon a juvenile who is over the age of twelve; and requires that warrants for the arrest or detention of a child shall comport with all other requirements of issuance of arrest warrants for adult criminal offenders. 10 O.S. 2001, § 7303-1.6[10-7303-1.6]

Adjudicative hearings are to be conducted according to the rules of evidence; a delinquent may remain silent as a matter of right in a delinquency hearing; decisions determining if a child falls within the purview of the Oklahoma Juvenile Code shall be based on sworn testimony; and the juvenile shall have the opportunity to cross-examine witnesses unless the facts are stipulated. See 10 O.S. 2001, § 7303-4.2[10-7303-4.2]. If the offenses charged in the delinquency proceeding constitute a felony if committed by an adult, the court is required to conduct a preliminary hearing to determine if there is prosecutive merit to the complaint, and prior to any order of adjudication being entered a juvenile in custody has the same right to be released upon bail as would an adult under the same circumstances. See 10 O.S. 2001, 7303-4.3(B) and (C).

⁸ The Court noted that the states were free to give juveniles the right to a jury trial. McKeiver, 403 U.S. at 547,91 S.Ct. at 1987.

⁹ This Court has recognized that Oklahoma is one of several states which provides, by statute, greater safeguards for the rights of juveniles, specifically the right to a jury trial, than are required by the United States Constitution. See Alford v.Carter, 1972 OK CR 344, ¶ 8, 504 P.2d 436, 439.

¹⁰ Several surrounding states provide a statutory right to a jury trial in juvenile adjudicatory proceedings. See, Arkansas, A.R. § 9-27-325; Colorado, C.R.S. § 19-2-107; New Mexico, N.M.S.A. 1978, § 32A-2-16; and Wyoming, W.S.A. §§ 14-6-223-224. [Kansas allows a jury trial in an adjudication at the court's discretion (see, K.S.A. § 38-1656) and Nebraska does not allow for a jury trial in any adjudicatory proceedings (see, N.R.S. § 43-279).] Each of those states, including Oklahoma, recognizes that a juvenile may waive his or her right to a jury trial. However, the requirement for waiving that right varies from state to state. Arkansas requires that the waiver may be executed only after being advised of the right and consulting with counsel. The waiver must be in writing and signed by the juvenile and his/her attorney. Colorado's statute specifies that if the offense charged against a juvenile constitutes a crime of violence as defined by statute if committed by an adult, the juvenile or the state may demand a jury trial. There is no right to a jury trial when the delinquent act alleged is a misdemeanor, a petty offense, a violation of a municipal or county ordinance or violation of a court order. Unless demanded, the right to trial by jury is deemed waived. New Mexico law provides that a juvenile may demand a jury trial when the offense would be triable by a jury if committed by an adult. The right may be waived, but that waiver must be on the record, and must be knowingly and intelligently waived. Wyoming's statutes provide that a juvenile may demand a right to trial by jury, but failure to make such a demand waives that right.

¹¹ Title 10 O.S. 2001, § 7303-4.1[10-7303-4.1] also provides that any person entitled to service in a delinquency proceeding shall have the right to demand a jury trial. It appears that none of the other parties entitled to service in Appellant's case requested a jury trial on his behalf. Title 10 O.S. 2001, § 7303-1.6[10-7303-1.6](B) provides that service is to be made on a juvenile over the age of twelve, the person having actual custody of the child, parents, guardians, custodial parents, or next friend. The summons issued in this case indicated that Appellant's father was served with a copy of the Summons and Notice. Service was attempted on Appellant's mother, but the record indicates that she could not be located.

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