Smith v. Harold's Supermarket, Inc. , 1984 Mo. App. LEXIS 4271 ( 1984 )

NUGENT, Judge,

dissenting.

I respectfully dissent because the majority opinion works a radical change in the interpretation of the Juvenile Code, abandoning the universal view that juvenile records, for reasons of sound public policy, for most purposes must remain inviolable.

I hold these views: In an historical and enlightened pronouncement of public policy, the legislature has declared records of juvenile proceedings to be inviolate. The legislature’s declaration is in broad and clear terms not subject to the instant interpretation. Even if we were free to work radical changes in the Juvenile Code’s meaning, for reasons of public policy, we should not do so.

The majority opinion holds “that the prohibition against use of juvenile court reports and records is for the exclusive protection of the juvenile and does not extend to any other person or proceeding which is neither occasioned by or brought against the juvenile.”

The part of the Code in question is subsection (3) of § 211.271 which was amended in 1969 to read in its pertinent part:

After a child is taken into custody ... all admissions, confessions, and statements by the child to the juvenile officer and juvenile court personnel and all evidence given in cases under this chapter, as well as all reports and records of the juvenile court, are not lawful or proper evidence against the child and shall not be used for any purpose whatsoever in any proceeding, civil or criminal, other than proceedings under this chapter.

Before the 1969 amendment the section read:

Evidence given in cases under sections 211.011 to 211.431 is not lawful or proper evidence against the child for any purpose whatever in a civil, criminal or other proceeding except in subsequent cases under sections 211.011 to 211.431.

The amended section stiffened the strictures against disclosure by broadening them to include the child’s statements to court personnel and “all reports and records of the juvenile court.”

If the amendment does anything, it indicates the legislature’s heightened concern about the use to which material gathered for use in juvenile cases is put. That concern is further reflected in the 1980 amendment of § 211.321.1 which tightened the strictures against disclosure of juvenile records. As amended, that subsection 1 of § 211.321 reads:

The proceedings of the juvenile court-shall be entered in a book kept for that purpose and known as the juvenile records. These records as well as all information obtained and social records prepared in the discharge of official duty for the court shall not be open to inspection or their contents disclosed, except by order of the court to persons having a legitimate interest therein, unless a petition or motion to modify is sustained which charges the child with an offense which, if committed by an adult, would be a class A felony under the criminal code of Missouri, or capital murder, first degree murder, or second degree murder. In addition, whenever a report is required under section 557.026, RSMo, there shall also be included a complete list of certain violations, of the juvenile code for which the defendant had been adjudicated a delinquent while a juvenile. This list shall be made available to the probation officer and shall be included in the presentence report. The violations to be included in the report are limited to the following: rape, sodomy, murder, kidnapping, robbery, arson, burglary or any acts involving the rendering or threat of serious bodily harm. The supreme court may promulgate rules to be followed by the juvenile courts in separating the records.

That amended subsection reflects a legislative concern now so strong as to prohibit even disclosure to the sentencing judge in a criminal case of all but the most serious offenses found in a defendant’s juvenile records, rape, murder, and like serious juvenile offenses. Supreme Court Rules 122.01 through 122.04 reflect similar concerns for the confidentiality of juvenile records.

The mandate of these legislative enactments and court rules seems to have been consistently honored by Missouri appellate courts to the extent constitutionally permissible. The Supreme Court in State v. Russell, 625 S.W.2d 138, 141 (Mo.1981) (en banc), held that § 211.271 must be followed except to the extent that a defendant's Sixth Amendment right of confrontation overrides the public policy of non-disclosure of juvenile records. There, defendant complained that the trial court erred in limiting his right to cross-examine a juvenile state witness about the offenses he had committed. The court held that Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), does not permit the general credibility of a juvenile to be attacked by a record of juvenile adjudication or by unrestrained cross-examination about such adjudication or his juvenile misdeeds. The defendant may only delve into the juvenile records to prove the juvenile’s bias which might arise from his motive to lie because he is suspect and subject to control of juvenile authorities. Otherwise, Missouri’s public policy forbids use of the juvenile records to attack the juvenile witness’ credibility.

State v. Russell, supra, reaffirms the court’s earlier pre-Davis ruling in State v. Williams, 473 S.W.2d 388 (Mo.1971), where the court affirmed a defendant's conviction based in part on the testimony of four adult state witnesses whose juvenile records were excluded for cross-examination purposes on the basis of the public policy expressed in § 211.271(3). The court there said at 389:

The wording of § 211.271 is clear and uneuivocal. It provides that the “records of the juvenile court * * * shall not be used for any purpose whatsoever in any proceeding, civil or criminal, * * This includes the use of the records to show that a witness, whether or not at the time of trial he is an adult, has committed an act when a juvenile which if committed by an adult would have been a crime. (Elisions in original.)

This court in State v. Tolliver, 562 S.W.2d 714 (Mo.App.1978), also held at 719-20 that, except to the extent that true Sixth Amendment confrontation questions are presented in cross-examining a witness about his juvenile record, the public policy enunciated in § 211.271(3) governs and the juvenile record of the witness may not be used in cross-examination to test general credibility.

The policy of most American legislatures and courts, including Missouri’s, has long been to provide a system of investigation and disposition of juvenile cases which serves the best interests of both the children and the state. The authorities all agree that confidentiality of juvenile records is imperative in the service of those interests. Judge Wasserstrom, writing for this court in State v. Jones, 571 S.W.2d 741 (Mo.App.1978), said (at 744) of § 211.271(3) and the prohibition against disclosure of juvenile records:

Moreover, this statute is to be construed in light of its purpose, which was to permit and encourage discussion and consultation between the juvenile and the juvenile officer in a relaxed, nonadver-sary and confidential setting. State v. Ross, 516 S.W.2d 311 (Mo.App.1974). This purpose has meaning when applied to statements made by a juvenile, but it has no relevance to the present situation involving the taking of fingerprints....

The best expression of the general purposes of confidentiality, however, is that of the Wisconsin Supreme Court in State ex rel. Herget v. Circuit Court, 84 Wis.2d 435, 267 N.W.2d 309, 316 (1978), where the court said:

Confidentiality is essential to the goal of rehabilitation, which is in turn the major purpose of the separate juvenile justice system. In theory, the role of the juvenile court is not to determine guilt or to assign fault, but to diagnose the cause of the child’s problems and help resolve those problems. The juvenile court operates on a “family” rather than a “due process” model. Confidentiality is promised to encourage the juvenile, parents, social workers and others to furnish information which they might not otherwise disclose in an admittedly adversary or open proceeding. Confidentiality also reduces the stigma to the youth resulting from the misdeed, an arrest record and a juvenile court adjudication. (Footnotes omitted.)

For the foregoing reasons, I would reverse and remand for new trial with directions that evidence of the deceased’s juvenile record and the testimony of the juvenile officer be suppressed. To the extent that it might be relevant, defendant has other direct evidence of the dead boy’s conduct without the use of closed juvenile court records and the testimony of the juvenile officer.

I have heretofore certified this case to the Supreme Court under the provisions of Article 5, § 10 of the Constitution of the State of Missouri and Rule 83.01 as an opinion I deemed to be contrary to the principles of law pertaining to the confidentiality of records of juvenile proceedings as declared in State v. Russell, supra, 625 S.W.2d at 141, State v. Williams, supra, 473 S.W.2d at 389, both decided by the Supreme Court, and State v. Tolliver, supra, 562 S.W.2d at 719-20, and State v. Jones, supra, 571 S.W.2d at 744, decided by this court.

The Supreme Court, after hearing arguments of the parties, has retransferred this case to us without opinion. Whatever that retransfer may mean, it does not refute the proposition that the public policy of Missouri is that for most purposes records, investigative reports, .memoranda, information, and materials gathered and maintained for use in juvenile proceedings remain inviolate, the only recognized exceptions being in “other proceedings under this chapter” mentioned in § 211.271 and in cases involving a defendant’s Sixth Amendment right of confrontation. In all other cases, as the Supreme Court said in State v. Williams, supra, 473 S.W.2d at 389, the records shall not be used for any purpose whatsoever in any civil or criminal proceeding. That important question of statutory construction and public policy rides on the final decision in this case.