Opinion
WD 83662
01-12-2021
In the INTEREST OF: D.B., Appellant
Craig A. Johnston, Columbia, for Appellant. Tyler C. Smith, for Respondent Juvenile Officer. Lori L. Stipp, Kansas City, Co-counsel for Juvenile Officer.
Craig A. Johnston, Columbia, for Appellant.
Tyler C. Smith, for Respondent Juvenile Officer.
Lori L. Stipp, Kansas City, Co-counsel for Juvenile Officer.
Division Three: Edward R. Ardini, Jr., Presiding Judge, Alok Ahuja, Judge and Gary D. Witt, Judge
EDWARD R. ARDINI, JR., JUDGE D.B. appeals from the judgment of the Circuit Court of Jackson County dismissing his juvenile proceeding pursuant to section 211.071, RSMo, and transferring his case to a court of general jurisdiction for prosecution as an adult. We affirm.
We use initials to identify the juvenile in this case pursuant to section 211.321, RSMo.
Statutory references are to the Missouri Revised Statutes (2016).
Factual and Procedural Background
On November 1, 2019, the Juvenile Officer of Jackson County filed a petition alleging that D.B., who was sixteen years old at the time, committed the following acts which would be felony criminal offenses if committed by an adult: one count of murder in the first degree, one count of assault in the first degree, two counts of armed criminal action, and one count of unlawful use of a weapon. Pursuant to section 211.071, RSMo, the Juvenile Officer filed a motion requesting that the juvenile court hold a hearing to determine whether D.B. should be certified to stand trial as an adult in a court of general jurisdiction.
At the hearing on the motion, Deputy Juvenile Officer Sandy Rollo-Hawkins testified in support of D.B. being tried as an adult. She explained that, according to the police reports, D.B. and two other individuals shot two people from a vehicle resulting in the death of one of the men and injury to the other. Rollo-Hawkins noted that the alleged offenses included two of the criminal code's most serious crimes, involved "viciousness, forcefulness, and violence[,]" and were committed against people, not property. Rollo-Hawkins explained that DYS usually discharges individuals when they turn eighteen, although DYS can, in some circumstances, maintain jurisdiction until age twenty-one. She expressed concern that, due to D.B.’s age, there would not be adequate time within the DYS system for him to sufficiently engage in treatment before he would be required to be released at either age eighteen or twenty-one, and that this would pose a safety risk to the community.
D.B. was approximately four months shy of his seventeenth birthday at the certification hearing.
D.B. called three witnesses: a former coach and mentor, his aunt with whom he had lived for a few years while his mother was incarcerated, and clinical psychologist Dr. Lauren Richardson. Dr. Richardson testified that D.B. suffered from early childhood trauma and diagnosed him with post-traumatic stress disorder and cannabis dependence. It was the view of Dr. Richardson that D.B. would be receptive to treatment, had the capacity to change, and should remain under the jurisdiction of the juvenile court.
The juvenile court entered a Judgment of Dismissal Pursuant to Section 211.071, certifying D.B. to stand trial as an adult in a court of general jurisdiction. The juvenile court found that the offenses D.B. allegedly committed "are considered some of the most serious offenses under the criminal code, and are crimes from which the community has a valid expectation of being protected." The juvenile court also emphasized that the "alleged offenses and behaviors involved viciousness, force, and violence[,]" and were crimes committed against persons and, thus, "[g]reater weight is therefore given to this factor in considering whether to dismiss this action." The juvenile court additionally found that "there are simply no services within the [juvenile court] appropriate for this Juvenile in light of his severe behavioral issues and the pending allegations" except DYS, and DYS was unlikely to be in a position to adequately rehabilitate D.B. and protect the community.
D.B. appeals from the juvenile court's judgment. Additional facts will be discussed throughout this opinion.
Discussion
D.B. raises two points on appeal. In his first point, D.B. claims that the juvenile court abused its discretion by refusing to permit the removal of his leg restraints at the certification hearing, arguing that requiring the leg restraints violated his right to due process. In his second point, D.B. alleges that the certification procedure set forth in section 211.071 is void for vagueness, arguing that the lack of a statutory standard or burden of proof allows for arbitrary application and enforcement in the certification process.
Point I
In Point I, D.B. asserts that the juvenile court erred "in refusing to have D.B.’s leg restraints removed during a § 211.071 hearing, after D.B. requested their removal," and that this decision "undermined the presumption of innocence, the court's fact-finding, and the related fairness of the court's decision whether to transfer D.B. to a court of general jurisdiction to be prosecuted under the general law ... in that the shackling of D.B. with leg restraints was not justified by an individualized, case-specific determination or finding, based upon evidence, that leg restraints were necessary for courtroom security or to prevent escape."
Additional Facts
At the outset of the certification hearing, counsel for the Juvenile Officer indicated that he had no objection to the removal of D.B.’s wrist restraints during the hearing. The court ordered the wrist restraints be removed. Counsel for D.B. then requested that D.B.’s leg restraints also be removed:
Your Honor, if I may address the issue of shackling while we're on it. Under the juvenile office's own statewide standards,[ ] the presumption is for a total lack of shackling. And the burden is on the juvenile office to show if and why any juvenile should be shackled while in court. That's their burden to show that he should be shackled. That in mind, that would be my request that all restraints being removed.
Section 1.17 of the Missouri Juvenile Officer Performance Standards (2017), states that a "juvenile shall not be shackled in a juvenile or family court proceeding absent a demonstrated safety risk the juvenile poses to him or herself or others and approval of the court." These performance standards offer guidance to juvenile officers but do not affect the "court's inherent authority and broad discretion in the control of the courtroom." Bair v. Faust, 408 S.W.3d 98, 102 (Mo. banc 2013).
Counsel for the Juvenile Officer did not object, stating that "[i]f the Court's comfortable with that, then our office wouldn't object to the ankles being removed as well."
The juvenile court denied the request, allowing only the wrist restraints to be removed:
Okay. So I'm looking at the nature of the offense. And just for the record, every seat in the courtroom is taken up. In light of the fact of the charges and
the emotional nature of the charges, his hands are released. He can in fact take any notes that he would like to take. I will leave the leg shackles on at this time. Okay?
Neither party made any further mention of the restraints during the hearing.
Nearly two weeks after the hearing, counsel for D.B. filed an Assertion of Right to Appear Unshackled in Court. The juvenile court did not address this filing in its judgment certifying D.B. to be tried as an adult.
Standard of Review
We review a trial court's decision regarding the use of restraints for abuse of discretion. See State v. Fisher , 45 S.W.3d 512, 514 (Mo. App. W.D. 2001). "A trial court's imposition of a restriction on the defendant constitutes an abuse of discretion where such action by the court offends the logic of the circumstances or is arbitrary and unreasonable." Id. An abuse of discretion occurs "when reasonable persons could not differ as to the propriety of the action taken by the trial court." Id. (citations omitted). "When considering the claim of abuse of discretion, the reviewing court recognizes that the trial court is usually better positioned than it to determine whether the restrictive measures satisfy the court's duty to control the courtroom and maintain the security of those present and to also utilize such procedures, under the circumstances, that best maintain the rights of the defendant." Id. at 515.
"Under Missouri law, objections must be made at the earliest possible opportunity, and a failure to object constitutes waiver of the claim on appeal." State v. Neighbors , 502 S.W.3d 745, 748 (Mo. App. W.D. 2016) (citation omitted). " ‘Timely objection to putative error affords the trial court an opportunity to invoke remedial measures rather than relegating appellate courts to the imprecise calculus of determining whether prejudice resulted.’ " Id. (quoting State v. Borden , 605 S.W.2d 88, 90 (Mo. banc 1980) ). Further, "[o]bjections must be specific, must set forth a basis for the objection, and must be sufficiently definite so as to alert the trial court that an objection is being made." Id.
The Juvenile Officer correctly notes that the due process concerns associated with the leg restraints were not raised at the certification hearing. Indeed, the due process argument being asserted on appeal first appeared nearly two weeks after the hearing in D.B.’s Assertion of Right to Appear Unshackled in Court. D.B. does not dispute that the motion was filed after the hearing but nevertheless argues that we should consider the issue preserved for appeal because the motion was filed prior to the juvenile court's decision to certify D.B. as an adult, and, therefore, the juvenile court could have conducted a new certification hearing to remedy his complaint. We are not aware of any authority that obligated the juvenile court to address D.B.’s tardy complaint in the manner proposed by D.B. on appeal or how such a possibility rendered his complaint timely for preservation purposes. Even more problematic, D.B. fails to explain how a new certification hearing before the same judge would have served as a meaningful cure to the error he claims infected the original hearing.
Regardless, while we do not believe D.B.’s specific claim of error was preserved, because he did assert a general objection to the use of restraints at the certification hearing and the outcome of this appeal is not impacted by the standard of review we employ, we have elected to analyze the claim under the abuse-of-discretion standard.
Analysis
D.B. argues the use of leg shackles during his certification hearing was unlawful based on due-process principles discussed in Deck v. Missouri , 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005). We express skepticism as to the application of Deck to juvenile-court certification hearings. Deck holds only that "the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial." Id. at 629, 125 S.Ct. 2007 (emphasis added). In reaching its due-process holding, Deck relied heavily on the history of physical restraints used on criminal defendants in English common-law courts. As described in Deck , a defendant's right to appear free of visible restraints applied only to proceedings before a jury , but not to pre-trial proceedings during which a jury was not present:
In Deck , the United States Supreme Court held that "courts cannot routinely place defendants in shackles or other physical restraints visible to the jury during the penalty phase of a capital proceeding." Deck , 544 U.S. at 633, 125 S.Ct. 2007. This restriction is not absolute however, as judges can take account of special circumstances, including security concerns, that may call for shackling. Id. Deck was an extension of long-established precedent imposing a similar limitation on the use of shackles during the guilt phase of a criminal jury trial. Id. at 626, 125 S.Ct. 2007.
In the 18th century, Blackstone wrote that "it is laid down in our antient books, that, though under an indictment of the highest nature," a defendant "must be brought to the bar without irons, or any manner of shackles or bonds; unless there be evident danger of an escape." Blackstone and other English authorities recognized that the rule did not apply at "the time of arraignment," or like proceedings before the judge. It was meant to protect defendants appearing at trial before a jury.
Id. at 626 (citations omitted); see also State v. Walter , 479 S.W.3d 118, 127 (Mo. banc 2016) (applying Deck to proceedings before a jury); State v. Taylor , 298 S.W.3d 482, 512 (Mo. banc 2009) (same); State v. Swopes , 343 S.W.3d 705, 707-10 (Mo. App. W.D. 2011) (same). Given that Deck ’s holding refers to proceedings before a jury and that the historical practice on which Deck relied drew a distinction between jury and non-jury proceedings, Deck is not literally applicable to a juvenile court certification hearing in which no jury is present.
We also note D.B. fundamentally mischaracterizes the record when he claims that the juvenile court failed to make "an individualized, case-specific finding that the restraints were necessary" here. The juvenile court did not order D.B. to remain in leg restraints based on application of a rule or generalized practice. Instead, the juvenile court ordered some of D.B.’s restraints to remain in place due to circumstances specific to this case: the nature and emotions attendant to the offenses of which D.B. was accused and the size of the audience present for the certification hearing.
Ultimately, however, we need not decide the bounds of the juvenile court's discretion concerning the use of restraints during a certification hearing because, in the present case, regardless of the limits to this discretion, the juvenile court's action clearly did not result in prejudice.
In Deck , the Court stated that "where a court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation." Deck , 544 U.S. at 635, 125 S.Ct. 2007. However, for the reasons previously explained in this opinion, we find that this inherent prejudice standard has no application here. Rather, D.B. is required to establish actual prejudice.
Despite our previously expressed doubt that the full panoply of rights discussed in Deck have application to proceedings without a jury, Deck's discussion of concerns implicated by the use of shackles provides a helpful guide to our prejudice analysis. Deck specifically notes that: (1) "[v]isible shackling undermines the presumption of innocence and the related fairness of the factfinding process"; (2) "[s]hackles can interfere with the accused's ‘ability to communicate’ with his lawyer"; and (3) "judges must seek to maintain a judicial process that is a dignified process." 544 U.S. at 630-31, 125 S.Ct. 2007. None of these factors inure to a finding that D.B. suffered prejudice from the juvenile court's actions.
Missouri courts have repeatedly held that the prejudice analysis fundamentally differs when a matter is tried to the court, rather than to a jury. Where an adjudicatory decision is made by a trial judge, we generally presume that the judge does not rely on inadmissible evidence, or inappropriate considerations, in making a ruling, unless the court's reliance on the improper evidence or circumstances clearly appears in the record. See , e.g. , Worthington v. State , 166 S.W.3d 566, 573 (Mo. banc 2005) ; State v. Coaston , 609 S.W.3d 527, 530 (Mo. App. S.D. 2020) ; State v. Hicks , 448 S.W.3d 848, 850-51 (Mo. App. W.D. 2014). Here, there is no indication in the record that the juvenile court considered or was influenced by the fact that D.B. was partially shackled in reaching its decision to certify him for trial as an adult.
Second, as far as interference with the right to counsel, we observe that the juvenile court specifically ordered the wrist restraints removed thereby permitting D.B. to take notes and otherwise participate in his own defense. There is no basis to conclude (or argument made) that the leg restraints interfered in any manner with D.B.’s ability to communicate with his counsel and assist in his defense.
Finally, with respect to the "dignity of the proceedings," the juvenile court ordered only partial restraints remain in place and offered a case-specific rationale for the shackling on the record, that was announced to all persons present in the courtroom. This was not a generalized practice employed by the juvenile court in all proceedings, or even in all certification hearings. Instead, the juvenile court explained that the offenses pending at the time of the certification hearing included first-degree murder, the most serious felony recognized in Missouri law. There is simply no indication that the juvenile court was engaged in "[t]he routine use of shackles" as to which the Court expressed concern in Deck. 544 U.S. at 631, 125 S.Ct. 2007.
Point I denied.
Point II
In Point II, D.B. asserts that the juvenile court erred in denying his Motion to Declare Certification Procedure Void for Vagueness and in certifying him to be tried as an adult, arguing that the certification process under section 211.071 "only provides that the court ‘may, in its discretion’ dismiss the petition and transfer the juvenile to a court of general jurisdiction, without providing a standard of proof to guide that decision."
Additional Facts
Before the certification hearing, counsel for D.B. filed a Motion to Declare Certification Procedure Void for Vagueness, arguing that the certification procedure violated D.B.’s right to due process. Specifically, the motion relied on the lack of a burden of proof or "sufficiency of the evidence" requirement in the certification statute, which, D.B. claimed, "both denies fair notice to [juveniles] and invites arbitrary enforcement by judges."
At the certification hearing, D.B.’s counsel made no argument and instead stood on the arguments made in the motion. The juvenile court overruled the motion. Jurisdiction
As an initial matter, we must determine whether we have jurisdiction to consider D.B.’s challenge to the constitutionality of the certification statute. " Article V, section 3 of the Missouri Constitution vests [the Missouri Supreme Court] with exclusive appellate jurisdiction in all cases involving the validity of a statute." McNeal v. McNeal-Sydnor , 472 S.W.3d 194, 195 (Mo. banc 2015). However, our Supreme Court's jurisdiction "is not invoked simply because a case involves a constitutional issue." Id. "Instead, th[e] exclusive appellate jurisdiction is invoked when a party asserts that a state statute directly violates the constitution either facially or as applied." Id. (citation omitted). Moreover, "[t]he constitutional issue must be real and substantial, not merely colorable." Id. (citation omitted).
When determining whether the constitutional claim raised on appeal is real and substantial or merely colorable, we must first consider whether the claim " ‘presents a contested matter of right that involves fair doubt and reasonable room for disagreement.’ " Matter of Brown v. State , 519 S.W.3d 848, 853 (Mo. App. W.D. 2017) (quoting Mo. Hwy. and Transp. Comm'n v. Merritt , 204 S.W.3d 278, 285 (Mo. App. E.D. 2006) ). Further, " ‘[i]f the United States Supreme Court or Missouri Supreme Court has addressed a constitutional challenge, the claim is merely colorable and the intermediate appellate court has jurisdiction.’ " D.E.G. v. Juvenile Officer of Jackson County , 601 S.W.3d 212, 215 n.2 (Mo. banc 2020) (quoting State v. Henry , 568 S.W.3d 464, 479 (Mo. App. E.D. 2019) ).
Claims that juvenile certification procedures are constitutionally infirm due to a lack of a specific standard of proof have previously been addressed by the Missouri Supreme Court as well as the United States Supreme Court. See Coney v. State , 491 S.W.2d 501, 512 (Mo. 1973) ; Kent v. United States , 383 U.S. 541, 562, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). Therefore, we have jurisdiction to decide this constitutional claim.
Standard of Review
" ‘[T]his Court reviews the circuit court's determination of the constitutional validity of a state statute de novo.’ " Brown , 519 S.W.3d at 853 (quoting State v. Williams , 411 S.W.3d 315, 319 (Mo. App. E.D. 2013) ). " ‘Statutes are presumed constitutional and will be found unconstitutional only if they clearly contravene a constitutional provision.’ " Id. (quoting Williams , 411 S.W.3d at 319 ).
Analysis
D.B. claims that section 211.071 is unconstitutionally vague, arguing that it fails to prescribe a specific standard of proof for the juvenile court to apply when deciding whether to certify a juvenile to stand trial as an adult in a court of general jurisdiction. We conclude that Missouri's certification process embodied in section 211.071 fully satisfies constitutional principles of due process under the United States and Missouri Constitutions.
Both the United States Supreme Court and our Missouri Supreme Court have rejected similar challenges to certification statutes. Beginning with Kent v. United States , 383 U.S. 541, 552-64, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), the United States Supreme Court has consistently stated that certification proceedings need not "conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but ... must measure up to the essentials of due process and fair treatment." Id. at 562, 86 S.Ct. 1045. In Kent , the Court found that constitutional principles are satisfied if the certification regime requires a hearing, the right to counsel, and the issuance of an order by the juvenile court setting forth the basis of its decision in a sufficient manner to permit meaningful appellate review. Id. Later, in Breed v. Jones , 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the Court reiterated its earlier statement that certification statutes " ‘must measure up to the essentials of due process and fair treatment[;]’ " but declined to "prescribe criteria for, or the nature and quantum of evidence that must support, a decision to transfer a juvenile for trial in adult court[,]" noting that the states’ various certification schemes "represent an attempt to impart to the juvenile-court system the flexibility needed to deal with youthful offenders who cannot benefit from the specialized guidance and treatment contemplated by the system." Id. at 535, 535, 95 S.Ct. 1779 (quoting Kent , 383 U.S. at 562, 86 S.Ct. 1045 ). Instead, the Court explained that due process "require[s] only that, whatever the relevant criteria, and whatever the evidence demanded, a State determine whether it wants to treat a juvenile within the juvenile-court system before entering upon a proceeding that may result in an adjudication that he has violated a criminal law and in a substantial deprivation of liberty, rather than subject him to the expense, delay, strain, and embarrassment of two such proceedings." Id. at 537-38, 95 S.Ct. 1779.
In Missouri, our Supreme Court specifically rejected a similar constitutional challenge related to section 211.071 in Coney v. State , 491 S.W.2d 501, 511-12 (Mo. 1973). In that case, the juvenile had claimed that section 211.071 was void for vagueness, arguing that it "lack[ed] sufficient standards." Id. at 511. The Court rejected that argument, finding that the statute "vests in the juvenile judge a discretion, after receiving the investigation report and hearing evidence, to determine whether the juvenile before him is a proper subject to be dealt with under the juvenile code ... or whether he should be prosecuted under the general law." Id. The Court added, "[t]he words and terms used in [ section] 211.071 ‘are of common usage and understandable by persons of ordinary intelligence’ and therefore they satisfy the constitutional requirement as to definiteness and certainty." Id. (quoting State ex rel. Eagleton v. McQueen , 378 S.W.2d 449, 453 (Mo banc 1964) ).
The Court in Coney analyzed a previous version of section 211.071, however, subsequent amendments have not rendered the Court's holding obsolete.
Section 211.071.6 includes a non-exhaustive list of specific criteria that shall be considered by the juvenile court in determining "whether the child is a proper subject to be dealt with under the provisions of [chapter 211] and whether there are reasonable prospects of rehabilitation within the juvenile justice system." § 211.071.6, RSMo. Those criteria are:
(1) The seriousness of the offense alleged and whether the protection of the community requires transfer to the court of general jurisdiction;
(2) Whether the offense alleged involved viciousness, force and violence;
(3) Whether the offense alleged was against persons or property with greater weight being given to the offense against persons, especially if personal injury resulted;
(4) Whether the offense alleged is a part of a repetitive pattern of offenses which indicates that the child may be beyond rehabilitation under the juvenile code;
(5) The record and history of the child, including experience with the juvenile justice system, other courts, supervision, commitments to juvenile institutions and other placements;
(6) The sophistication and maturity of the child as determined by consideration of his home and environmental situation, emotional condition and pattern of living;
(7) The age of the child;
(8) The program and facilities available to the juvenile court in considering disposition;
(9) Whether or not the child can benefit from the treatment or rehabilitative programs available to the juvenile court; and
(10) Racial disparity in certification.
§ 211.071.6(1)-(10), RSMo.
Missouri courts have continued to reject, relying on Coney , similar void-for-vagueness challenges to our certification process. See State ex rel. T.J.H. v. Bills , 495 S.W.2d 722, 726 (Mo. App. 1973) ; State v. Kemper , 535 S.W.2d 241, 244 (Mo. App. 1975) ; Haliburton v. State , 617 S.W.2d 417, 419 (Mo. App. W.D. 1981) ; State v. Nathan , 404 S.W.3d 253, 260 (Mo. banc 2013).
As discussed above, a certification process passes constitutional muster if "a hearing is provided, the juvenile is given the right to counsel and access to his or her records, and it results in a decision that sets forth the basis for the decision to relinquish jurisdiction in a way that is sufficient to permit meaningful appellate review." Nathan , 404 S.W.3d at 260. Section 211.071 embraces each of those safeguards and, consistent with Kent , Coney and the cases that have followed, we reject D.B.’s argument that the statute is void for vagueness.
In order to certify the juvenile to a court of general jurisdiction, the juvenile court must issue a dismissal order containing the following:
(1) Findings showing that the court had jurisdiction of the cause and of the parties;
(2) Findings showing that the child was represented by counsel;
(3) Findings showing that the hearing was held in the presence of the child and his counsel; and
(4) Findings showing the reasons underlying the court's decision to transfer jurisdiction.
§ 211.071.7(1)-(4), RSMo.
Point II denied.
Conclusion
The judgment of the juvenile court is affirmed.
All concur.