Appling v. State , 221 Ga. App. 162 ( 1996 )

Johnson, Judge.

Fourteen-year-old Fabian Terrell Appling was tried as an adult in DeKalb County Superior Court and convicted of armed robbery. The evidence at trial showed that Appling approached two boys behind Miller Grove Middle School just as students were leaving the school at the end of the day. At gunpoint, Appling took a 13-year-old victim’s shoes and wallet while the student was standing with another student.

1. Appling’s first two enumerations are related, and will be dealt with together. He asserts that his rights to a fair trial and to effective assistance of counsel were abridged when the trial court granted the state’s motion to sequester Appling’s mother, a potential witness in the case.

This enumeration presents us with an issue of first impression in this state. Does a juvenile, when being tried as an adult, have the right to have a parent present at trial?

Under the Juvenile Court Code, as interpreted in D. C. A. v. State, 135 Ga. App. 234, 235-236 (1) (217 SE2d 470) (1975), a parent is a party to a juvenile proceeding and may not be sequestered, even if the parent is also a witness in the case. See also Marshall v. State, 248 Ga. 227, 228 (2) (282 SE2d 301) (1981). However, treatment as a juvenile is not an inherent right. It is a right granted by the state legislature. The legislature may restrict or qualify that right as it sees fit, as long as no arbitrary or discriminatory classification is involved. See In the Interest of J. J. S., 246 Ga. 617, 618 (1) (272 SE2d 294) (1980). A juvenile has no absolute right to be tried as a juvenile, and appellant here is not challenging his being tried as an adult. See Bishop v. State, 265 Ga. 821, 822-823 (2) (462 SE2d 716) (1995). Likewise, the right of a parent to be present at a proceeding is not an inherent right. It is derivative of the adjudication of the juvenile’s case within the juvenile system. Once the determination has been made to try a juvenile in superior court as an adult, or, as here, where the offense committed was one within the exclusive jurisdiction of the superior court pursuant to OCGA § 15-11-5 (b) (2) (A), those statutory rights accorded juveniles in juvenile court procedures no longer apply. A juvenile being tried in superior court enjoys certain rights he does not enjoy in juvenile court. For example, he or she has the right to trial by jury. Certain other protections, however, are exclusive to the juvenile system and do not travel with a defendant when a case is transferred from juvenile to superior court. The right of the parent to be in the courtroom, being statutory only, falls into this category. We hold that a parent is not a party to criminal proceedings in which a juvenile is being tried as an adult.

There being no applicable statute entitling Appling’s mother to be present in the courtroom, we look to the general rule. A trial court has discretion with regard to sequestration of witnesses. “OCGA § 24-9-61 provides for sequestration of witnesses upon motion by a party, but the trial court has sound discretion to make exceptions to that rule, and only abuse will warrant reversal. [Cit.]” (Punctuation omitted.) Lee v. State, 214 Ga. App. 164, 165 (2) (447 SE2d 323) (1994). Because there is no evidence in the record before us that the trial court abused its discretion in granting the state’s motion for sequestration, we will not set it aside.

Appling also asserts that the sequestration of his mother caused his trial counsel to be ineffective, where otherwise she was effective. We disagree. Appling argued below that his mother was needed to help him understand the proceedings, make decisions and communicate effectively with him. However, he has not pointed to anything in the record indicating that he was unable to understand his trial counsel’s explanation of the proceedings or communicate with counsel. In addition to failing to provide us with even one example purporting to show how counsel’s representation was deficient, Appling has failed to show that his defense was prejudiced by ineffective representation. Our review of the record indicates that evidence of Appling’s guilt was overwhelming, and the absence of his mother at trial did not render counsel ineffective or prejudice his defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

2. Appling contends the trial court erred in denying his motion to suppress a photographic identification. “The test of a photographic array is whether the procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Citations and punctuation omitted.) Corey v. State, 211 Ga. App. 333 (2) (439 SE2d 513) (1993). The photo lineup, showed separately to the two victims, consisted of six photographs of young men, close in age, hair style and general looks to Appling. All of the photographs except Appling’s were taken from the Miller Grove Middle School yearbook. The photographs were the same size. The victims were told that the robber may or may not be in the lineup. Each of the victims identified Appling’s picture.

Appling points to an inconsistency in one of the victim’s testimony as illustrative of an impermissibly suggestive or prejudicial remark made during the identification process. At the pretrial hearing one of the young victims testified on cross-examination that the detective told him “The person is in here, find him.” At trial he testified that the detective told him “If you think one of them, one of the guys are in here, pick the one you think is him.” When questioned about the inconsistency, the victim replied that he was nervous at the pretrial hearing because he was in the courtroom with Appling.

The victims had an opportunity to observe Appling during a brief conversation with the perpetrators prior to the robbery. Both picked Appling out of the lineup and identified him in court. Because there was no substantial likelihood of irreparable misidentification due to the pretrial identification procedure, the trial court did not abuse its discretion in denying Appling’s motion to suppress the photo lineup and identification procedure. See Lampkin v. State, 213 Ga. App. 589, 593 (1) (445 SE2d 324) (1994).

Judgment affirmed.

McMurray, P. J., concurs. Ruffin, J., concurs specially.