On December 13, 1991, the appellant, Billy Wayne Rhoades, was arrested on a circuit court felony bench warrant for burglary, theft, and forgery. At the time of his arrest, Rhoades was sixteen years of age. He was jailed and later transported that same day to the sheriff’s office for questioning where he was read his Miranda rights. Prior to interrogation, Rhoades executed a juvenile rights form which was witnessed by the deputy, Norman Cornish, and an individual acting as a juvenile intake officer, Sandi Daugherty.1 Additionally, Cornish contacted Rhoades’ mother by phone, and the mother indicated she could not come to the jail until she got off work at 4:00 p.m. Nonetheless, the mother gave her oral consent for Rhoades to be questioned. Rhoades then was interrogated and gave inculpatory statements. Rhoades’ mother arrived at the jail shortly after 4:00 p.m., and was told that Rhoades had been questioned and he had confessed. On December 16, Rhoades was released on bond.
On January 13, 1992, Rhoades made his first appearance before the Bradley County Circuit Court, at which time counsel was appointed, and Rhoades was scheduled for plea and arraignment on February 28. However, on January 14, an order of transfer from circuit to juvenile court was entered, and on February 3, the prosecutor filed a petition in the juvenile division of chancery court to have Rhoades adjudicated a delinquent based on acts allegedly committed in a different case and which were later dismissed. The petition was amended on February 20, to include the acts committed in this case. At an April 3 hearing, the juvenile court denied Rhoades’ motion to suppress his confession, and then it adjudicated Rhoades a delinquent, finding he had committed theft of property in excess of $200 and forgery. The court committed Rhoades to the Division of Youth Services. Rhoades appeals from the court’s judgment, and for his sole point for reversal, argues the trial court erred in denying his motion to suppress his inculpatory, custodial statements.
Rhoades’ argument is based upon the state’s failure to comply with certain provisions of the Arkansas Juvenile Code after Rhoades was taken into custody pursuant to a warrant. For example, Ark. Code Ann. § 9-27-313(b) (Repl. 1993) provides in these circumstances, the officer taking the juvenile into custody must immediately take the juvenile before the court out of which the warrant was issued, and the court shall decide whether jurisdiction is in juvenile court or circuit court under § 9-27-318. The state did not comply with these procedural requirements. The Code also requires that, in delinquency and families in need of services cases, a juvenile and his parent, guardian, or custodian shall be advised (1) by the law enforcement official taking the juvenile into custody, (2) by the intake officer at the initial intake interview, and (3) by the court at the juvenile’s first appearance before the court that the juvenile has the right to be represented at all stages of the proceedings by counsel. Ark. Code Ann. § 9-27-316 (Repl. 1993). And § 9-27-317 sets out the procedures required when obtaining a juvenile’s waiver of the right to counsel which include the written and signed agreement by the juvenile and his parent, guardian, or custodian. See particularly § 9-27-317(b), (c) and (f). Again, the state in this case indisputably failed to comply fully with these right-to-counsel and waiver provisions, and Rhoades urges that the state’s failures to meet these Code requirements precluded it from extracting Rhoades’ confession and introducing it at trial.
The state responds by claiming that the Juvenile Code provisions relied upon by Rhoades are inapplicable because Rhoades was charged in circuit court with a felony as an adult, not in juvenile court as a delinquent juvenile. Consistent with the state’s argument here, we recently held in Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993), that the Juvenile Code and its provisions refer only to proceedings in juvenile court. This court further concluded that, when the prosecutor chooses to prosecute a juvenile in circuit court as an adult, the juvenile becomes subject to the procedures and penalties prescribed for adults. Accordingly, the state suggests here that, since Rhoades’ constitutional rights as an adult were met when the officers interviewed and obtained his confession, the trial court was correct in allowing Rhoades’ confession into evidence even though the officers’ actions failed to comply with Juvenile Code provisions.
The state and Rhoades are both correct at least up to a point. As we stated in Boyd, the Juvenile Code provides that, when a case involves a juvenile sixteen years old or older, and the alleged act would constitute a felony if committed by an adult, the prosecuting attorney has the discretion to file a petition in juvenile court alleging delinquency, or to file charges in circuit court and to prosecute as an adult. 313 Ark. at 172, 853 S.W.2d at 264. However, felony charges in circuit court are required to be brought by indictment or information. Lowell v. State, 283 Ark. 425, 678 S.W.2d 318 (1984); see also Ark. Const. art. 2, § 8, and Ark. const. Amend. 21. In the present case, Rhoades was arrested on a circuit court felony bench warrant, but neither the abstract nor transcript shows a copy of an indictment or information setting out the felony offenses with which Rhoades was charged.2 As we mentioned earlier, the record reflects only that, on February 3, 1992, the state filed a petition in the juvenile division of chancery court to adjudicate Rhoades a juvenile delinquent.
In sum, our review of the record reveals Rhoades had not been charged with a felony in circuit court as an adult when the law officers interrogated him and gained his confession. Thus, under the circumstances presented, the Juvenile Code was indeed applicable at the time Rhoades gave his statement, and his statement was therefore inadmissible at trial because the law enforcement officer’s conduct failed to comport with required Juvenile Code procedures when they obtained Rhoades’ confession.
For the reasons set out above, we reverse and dismiss.
Holt, C.J., dissents.The exact status of this individual is not clear.
The bench warrant does reflect in its top margin the typed words, “Information NO. CR” and the numbers “91-122-2 A and B” handwritten in. To confuse matters further, the term “indictment” is mentioned in the warrant. Of course, an information or indictment is unnecessary to issue a warrant, and unlike the dissenting opinion, the court is unwilling to speculate that a charging instrument was actually filed in this matter, especially since an information or indictment fails to appear either in the abstract or the transcript.