State v. Wright

SEILER, Judge

(dissenting).

I respectfully dissent. The majority opinion’s erroneous construction of Sec. 211.271(3) in the three cases decided today, State v. Wright, State v. Rone, Mo., 515 S.W.2d 438 and State v. McMillian, Mo., 514 S.W.2d 528, produces the following non-sequitur:

1.A confession obtained by the police while the juvenile is in their custody is not admissible against the juvenile in a subsequent criminal proceeding, under the first Arbeiter case, 408 S.W.2d 26 (Mo.1966) and Sec. 211.061.

2. A confession obtained by the juvenile authorities while the juvenile is in juvenile custody is not admissible against the juvenile in a subsequent criminal proceeding, under the express prohibition of Sec. 211.271(3).

3. But when the police and the juvenile authorities get together in the same room with the juvenile, either at the police station (the Wright case) or at the juvenile quarters (the Rone and McMillian cases), then a confession made to the police is admissible against the juvenile in a subsequent criminal proceeding.

Not only is the above a non-sequitur; if it stands it authorizes a transparent evasion of the juvenile code and of Sec. 211.-271(3) in particular. It permits the police and the friendly juvenile officer to sit around the table with the juvenile and do together indirectly what cannot be done directly.

To find the meaning of the amendment to Sec. 211.271(3), the majority opinion looks to legislative intent. Such intent can be found, it is said, by ascertaining what the amendment was seeking to remedy and the conditions obtaining at the time of enactment. By this process the majority concludes that the amendment was intended to answer the question left open by the second Arbeiter case, which was whether statements made to a juvenile officer would be admissible against the juvenile in a subsequent criminal proceeding. The legislature provided an explicit answer in the negative.

But then, having arrived at the legislative intent by using its own suggested method of analysis of ascertaining what the amendment was seeking to remedy and the conditions obtaining at the time of the enactment, the majority opinion embarks on a course of speculation as to what the general assembly would have done had it also had before it the problem of whether statements made by the juvenile to the po*434lice during the time he was in juvenile custody should be admissible in a subsequent criminal proceeding. In pursuing this speculation, the majority overlooks that it was not necessary for the legislature to go any further than it did by the amendment made to Sec. 211.271(3) to correct the problem before it, which by the majority’s own analysis, pertained solely to the admissibility of statements made to the juvenile authorities.

As the court said in State v. Richardson, 495 S.W.2d 435, 440 (Mo.banc 1973), quoted in the majority opinion, “The language of Sec. 211.271(3) is clear and explicit.” So it is, and it says nothing about the use or non-use of statements made to the police.

In my opinion, there is no evidence at all that the legislature intended to do anything more by the amendment to 211.271(3) than to straighten out the uncertainty caused by the second Arbeiter case, State ex rel. Arbeiter v. Reagan, 427 S.W.2d 371 (Mo.banc 1968), aá to admissibility in subsequent criminal trials of statements made by juveniles to juvenile authorities.

I find substantial support for this view in the fact that the legislature made no other changes whatever in the entire juvenile code, much of which is directed at keeping police jurisdiction and juvenile jurisdiction separate and apart.

I refer to the following: Sec. 211.011, which is not mentioned or considered in the majority opinion, but which declares the purpos'e of the juvenile code as being “to facilitate the care, protection and discipline of children who come within the jurisdiction of the juvenile court” and states that it shall be “liberally construed” to that end; Sec. 211.061, which requires the police upon taking a child into custody to take him “immediately and directly” to the juvenile court; Secs. 211.131, 211.031 and again 211.061, which give the juvenile court exclusive jurisdiction once it obtains custody; Secs. 211.241 and 211.251, which give the juvenile court almost absolute power over and control of the child; Sec. 211.151, subd. 2, which prohibits fingerprinting of a juvenile; Sec. 211.321 making juvenile records confidential; and Sec. 211.271, subd. 2, which provides no child can be charged with a crime until the juvenile court first considers the case and decides to relinquish jurisdiction.

All these were left unchanged, which convinces me that the legislature intended no change in the juvenile code by the amendment to 211.271(3) other than to make it clear that statements given to juvenile authorities were not later to be used against the child in a criminal case.

Had the legislature intended by 211.-271(3) to work a change of such magnitude as to make admissible in subsequent criminal proceedings statements made to the police by juveniles while in juvenile custody, it would not have left it to “construction” but would have provided so in the amendment. This the legislature did not do and instead left the subject unmentioned.

Additionally, I see no indication that in closing the loophole as' to statements to juvenile authorities that the legislature was intending to open, sub silencio, a loophole as to police officers. On the contrary, instead of the amendment indicating an intention to facilitate interrogation of a juvenile by the police and admission against him of his statements in a subsequent trial, the amendment allows the juvenile to confess to juvenile authorities and be certain that the confession could not be used against him by the police, something not theretofore available to him. The intent of the amendment is to insulate the juvenile from the police and to encourage free communication between the juvenile and the juvenile authorities; to protect the child, not undo him.

Returning to my analysis of the majority opinion, it holds next that statements in question were made not to the juvenile officer, but to the police, and hence not within the prohibition of Sec. 211.271(3), even *435though the juvenile officer was present when the statement was made. The conclusion that the statements were admissible because they were made to the police and not juvenile officer rests on the erroneous assumption, as I have pointed out above, that in closing the loophole as to juvenile officers the legislature intended to open a loophole as to police interrogation.

The majority opinion then concludes by asserting that the new rule of permitting police interrogation does not make juvenile proceedings a mere adjunct to the police or nullify the code, inasmuch as there cannot be police interrogation prior to delivery by virtue of Sec. 211.061, and then the police would have to get permission from the juvenile authorities, who will decide, based on seriousness of the charges, past record, and “other pertinent facts and circumstances”, and if they do permit police questioning, the juvenile authorities can see that the juvenile’s rights are first fully explained and protected. Use of such statements in criminal trials, the majority opinion says, does not violate any confidence or undermine the parens patriae relationship.

I disagree. The position of the majority is completely unrealistic. The parens pa-triae relationship is certain to be undermined. To illustrate: In both cases under consideration, the juvenile is declared, at the time the police obtained their confession, to be in juvenile custody. This is necessary because under Sec. 211.061 the police are required to turn custody of the juvenile over to the juvenile authorities immediately, and under State v. Arbeiter, 408 S.W.2d 26 (Mo.1966) unless the police comply with this section, they cannot use the confession against the juvenile. In most, if not all instances, it will be the juvenile officers who receives custody of the juvenile. Under the majority opinion, the juvenile officer then is forced into a dual and conflicting role, because in order to obtain an admissible police confession, the juvenile must be in juvenile custody and at the same time in a hostile, adversary environment. While purporting to act in the best interests of the child, the juvenile officer must lend his presence to the extent needed to bring the juvenile within juvenile custody so that the police may obtain an admissible confession, which is certainly not in the child’s best interests if the child subsequently is released to be tried as an adult. “ . . . The conflict between gaining the youth’s confidence at the investigative state and then prosecuting him is obvious. Even more important is the effect of this sudden reversal of conflicting roles on the youth. Instead of instilling confidence in him, the directly opposite result is frequently obtained . . . The offender feels he has been tricked, and it would be most difficult to argue against that conclusion.” 56 Ill.Bar J. 320, 326.

We do not tolerate such conflicts of interest in a judge trying a case or in a lawyer representing a client. Yet it is now approved conduct for a juvenile officer dealing with children. I cannot conceive of anything which could be more destructive of the parens patriae relationship. I cannot believe the legislature meant for the juvenile officer to be put in such a position or for children to be treated that way.

The parens patriae relationship is not subject to being turned on and off like a hot and cold water faucet. The child is first placed in the relaxed, friendly, parens patriae relationship which the majority recognizes is characteristic of the juvenile court approach, and then is expected to sense, with a full appreciation of the significance which the majority opinion ascribes to it, the change to an adversary atmosphere, surrounded by adversaries, not friends. The police will commence their interrogation while the child knows he is still in juvenile custody, with the juvenile officer present or close at hand, perhaps in the presence of his parents, and while still in the same physical surroundings in the juvenile building or quarters which the child *436knows are separate and apart from the general run of adult places of detention.1

All these factors maintain the child’s sense of juvenile court protection, even while he is being questioned by the police. Thus the police have it both ways: they get the benefit of the residue of juvenile protection which is bound to remain in the child’s consciousness, but anything the police extract from him is judged as though it were obtained in a true adversary setting. I find nothing in the juvenile code which permits or remotely envisions such cynical manipulation of a juvenile by either the police or the juvenile authorities.

The result of today’s decisions will also involve the police more and more in the operation of the juvenile system and will force the juvenile authorities more and more into conflicts of interest, where they must sacrifice the reform and rehabilitation goals of the juvenile system to the demands (even though couched as “requests”) of the police. This points up another unfortunate consequence. In numerous instances, the question of whether- the juvenile court will ultimately relinquish jurisdiction will be decided, as a practical matter, by the juvenile officer alone, who is not a judicial officer, at the time he decides to let the police interrogate the juvenile. For if the police succeed in obtaining a confession, then the juvenile court will be subject to heavy public, newspaper, police and prosecutorial pressure to relinquish jurisdiction, without regard to whether the juvenile is nevertheless a proper subject to be dealt with under the juvenile code. No doubt many juvenile judges are able to withstand such pressures, but the point is that the juvenile system is not meant to be operated so that the police can put the juvenile officer and the juvenile judge in that position. “ ‘Waiver’ provisions are normally not mandatory, but only permissive, leaving the decision to the discretion of the juvenile court judge . The decisive issue is not whether he is ‘guilty’ of the particular offense charged, but whether he can be benefitted by the juvenile system if he is, in fact, guilty.” 12 St. Louis Univ.L.J. 424, 426. It was never contemplated that the police, the sheriff, or the FBI would be part of the juvenile court system. They are by their nature and objective antithetical to the purposes of the juvenile code. The majority opinion compels the juvenile system to try to blow hot and cold at the same time, which it cannot do and which will inevitably result in helping the police at the expense of the juvenile.

As previously pointed out, these cases turn on the meaning of the amendment to Sec. 211.271(3). As we have seen, this section says nothing about making admissible in subsequent criminal trials confessions obtained by police interrogation while the juvenile is still in juvenile custody. The rule making such confessions admissible is court made, created in the opinions handed down today. Admittedly the crimes in the three cases before us were committed by teenage juveniles, the evidence of guilt is convincing, there has been much publicity about teenage crime, and unquestionably the police believe that if they are permitted to interrogate juveniles under the auspices of the juvenile system there will be many more convictions of youthful offenders.

But I fear we have become so concerned about conviction and punishment that we forget what the true aim and purpose is of *437our juvenile code. I have already made reference to Sec. 211.011, which states the primary purpose of the juvenile code. Numerous decisions of the Missouri courts have recognized that the purpose of our juvenile code is not to convict children of criminal offenses, but to safeguard and reform them. Without taking space to quote directly the language used, see, for example, State v. Arbeiter, 408 S.W.2d 26, 30 (Mo.1966); State v. Richardson, 495 S.W.2d 435 (Mo.banc 1973); In re K.W.B., 500 S.W.2d 275 (Mo.App.1973) and In re C, 314 S.W.2d 756, 760 (Mo.App.1958).

We should remind ourselves of the words of the late Judge Michael J. Carroll, longtime able and respected juvenile judge in the City of St. Louis, 21 Journal of Missouri Bar 399, where he said: “In order to place our attention in the proper perspective, it may be well to consider what the law is not: ‘The juvenile code is not criminal law. The child taken into custody is not under arrest. The juvenile court is not a criminal court. The juvenile is not charged with a crime. The juvenile court hearing is not a criminal trial

Thus, we as a court should realize and accept that the legislature has provided that juveniles are to be treated differently than adults. So long as the juvenile is zvithin the juvenile system this concept prevails. It does not disappear and reappear depending on whether the police desire to question the juvenile or whether he has previously been in trouble or whether a “serious” crime has been committed and he is under suspicion.

But this is all forgotten in the cases before us. To allow the police to use the juvenile court system to obtain confessions for use against the juvenile at his subsequent criminal trial, with all the accompanying conflicts of interests and breaches of integrity of the juvenile system previously pointed out, is to satisfy the police at the expense of the juvenile system. In so doing, the juvenile system is made to fall short of the trust reposed and to assume the role of one “That [does] palter with us in a double sense; that keep the word of promise to our ear, And break it to our hope.”

Furthermore, the majority is overlooking the fact that the juvenile code provides a method (and a prompt method) of allowing the juvenile court to relinquish jurisdiction, whereupon the juvenile can be charged and prosecuted as an adult. There is no reason why the police cannot then interrogate him.2 It may be said that by then he will have a lawyer and hence will not talk, but this possibility has existed all along anyway. A lawyer must be offered in juvenile court and even upon arrest. The law and the courts have long since discarded the idea that a suspect or a juvenile should not be given right of counsel from the outset because to do so might result in the lawyer advising his client not to talk.

If a juvenile, in fact, wants to make a clean breast of everything, knowingly and of his own free will, there is no reason why he cannot do this just as well to the police after the juvenile court has considered the situation and decided to release him for prosecution as an adult.

In conclusion, there is one other matter which should be pointed out. It is not dealt with in the majority opinion, but it cannot be ignored and it is a compelling reason why neither the Wright, Rone, nor *438McMillian confessions should be admitted against the respective defendants. The majority opinion states that the juveniles were given full and fair warnings of their rights and were made aware of the potential consequences of any statement they may have made. The opinion speaks of full explanation and a full and complete understanding on the part of the juvenile as a prerequisite to the kind of police interrogation under juvenile auspices which the majority opinions permit.

But was that done here? It was not. Sec. 211.271(3) provides that “all admissions, confessions, and statements by the child to the juvenile officer and juvenile . personnel . . . are not lawful or proper evidence against the child and shall not he used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this chapter.” The legislature has thus made it clear that a juvenile who desires to make a confession and get the matter “off his chest” (which all will agree is essential to effective reform and rehabilitation) can do so to the juvenile officer without fear that it can later be used against him in a criminal proceeding, but will he kept within the confines of the juvenile system. As put by Weintraub, C. J., concurring in In the Interest of Carlo, 48 N.J. 224, 225 A.2d 110, 121, “ . . . [A] child can be rehabilitated only in the face of the truth . The police, of course, would not be interested in the juvenile making this sort of confession, because then the police could not use it to convict him. It is a measure of the insincerity of the police that none of these juveniles were informed that if they wanted to confess, they could do so to the juvenile officer without risking the possibility that their confessions could be used against them in a criminal proceeding.

Nor did the juvenile officers in any of the cases advise these juveniles or their parents as to what the law allowed in case the juvenile desired to make a confession, but only to the juvenile officer. The juveniles or their parents could not be expected to know about this important part of Sec. 211.271(3) unless someone told them about it before the juvenile confessed. But no one did. How can it be said that the juvenile was given a full and complete explanation of his rights and the potential consequence of any statement he might make, when he was given no hint of what he could do under the provisions of Sec. 211.-271(3)? Unless he is informed that he has the right to speak freely and openly with the juvenile officer, knowing that his statements cannot be used against him in a subsequent criminal trial, he is deprived “of the freedom to decide whether to assist the state in securing his conviction.” In re Gault, 387 U.S. 1, 47, 87 S.Ct. 1428, 1454, 18 L.Ed.2d 527 (1967). Anything less leaves him with no more than the option to talk at large or remain silent, which is far less than he is entitled to under the statute.

The confession should have been ruled inadmissible and the case should be reversed and remanded for a new trial, as is true also in State v. Rone and State v. McMillian, supra.

. For example, in the Wright case, the mother and the deputy juvenile officer were present. The police questioning took place in the juvenile court building, which defendant knew from previous experiences. The juvenile was age 15.

In the McMillian ease, the mother, deputy juvenile officer, and juvenile legal officer were present during the police interrogation, which took place in the hearing room at the juvenile detention center. The juvenile was age 15.

In the Rone case, the questioning took place in the police -station, but the deputy juvenile officer, whom defendant knew from previous juvenile court experiences when he had been assigned to a deputy juvenile officer, released, and sent home, was present. The juvenile was either 16 or a few months short thereof.

. If it is a fact that the police cannot operate without being able to question juveniles while in juvenile custody, then the matter is one to be considered by the legislature, to determine whether this police aim can be achieved and at the same time j)reserve the juvenile system in accord with its purpose as stated in Sec. 211.061. It is not an objective for us to accomplish by construction of a statute. What the majority opinion does is to accomplish by judicial decision what failed of enactment at the last session of the 75th General Assembly — namely, a bill which would have made admissible all admissions, confessions and statements of a juvenile, after he had been warned of his rights, H.B. 914.