DocketNumber: No. 10333
Citation Numbers: 373 A.2d 235
Judges: Kern, Nebeker, Newman
Filed Date: 4/26/1977
Status: Precedential
Modified Date: 9/24/2021
Appellant, a juvenile, was adjudged delinquent after a trial on a petition alleging his involvement in offenses of premeditated murder, felony murder, armed robbery, armed rape, robbery and burglary. At a disposition hearing conducted before a judge other than the trial judge, he was committed to the Social Rehabilitation Administration for an indeterminate period not to exceed two years. He appeals asserting as error: (1) the insufficiency of the evidence to convict of premeditated murder, felony murder, armed rape and burglary; and (2) improper disposition procedures. Finding no merit to his first contention, we affirm his adjudication as delinquent. Finding his second contention to be meritorious, we vacate the disposition and remand for a new disposition.
I.
The facts, viewed in the light most favorable to the government
From this evidence it is clear that appellant voluntarily involved himself in the criminal activity. Notwithstanding the fact that he did not rape or shoot Ponder,
We find ample evidence in the record to support the court’s conclusion that appellant’s conduct during the commission of the felonies was sufficiently culpable to infer criminal complicity. It does not support appellant’s contention that he attempted to withdraw from the activity since nowhere is there any showing that he indicated a desire to disassociate himself from the others. His approval was evidenced through his active participation in the venture. Creek v. United States, supra.
II.
When the appellant came before the court for disposition hearing, he requested pursuant to Super.Ct.Juv.R. 25(b)
Under Juvenile Rule 25(b), in order for a judge to impose disposition in a case he did not try, the trial judge must be absent, dead, sick, or disabled. The trial judge in this case was available. She was contacted in her chambers and because she had no recollection of the case, declined to handle the sentencing. Appellee has urged that the judge’s rotation from the Family Division is an absence within the meaning of Rule 25(b). We cannot agree.
Although we have found no cases construing this rule, the corresponding federal rule,
We adopt the rationale of the federal courts. The obvious intent of this unambig
Our conclusion is all the more compelled by reference to Super.Ct.Juv.R. 107(c) which specifically allows a successor judge to review a pretrial release order where the judge who entered it is unavailable or is no longer sitting in the Family Division.
By-passing the provisions of this rule, which has the force of law,
Therefore, we direct the Superior Court to hereafter comply strictly with the provisions of Juvenile Rule 25(b) in all juvenile cases unless and until it is amended.
Accordingly, the adjudication of delinquency appealed from is affirmed. However, the disposition imposed is vacated and the case is remanded to the trial court for further proceedings, not inconsistent with this opinion.
So Ordered.
. Creek v. United States, D.C.App., 324 A.2d 688 (1976).
. The extent of appellant’s participation is significantly different than in such cases as Bailey v. United States, 135 U.S.App.D.C. 95, 416 F.2d 1110 (1969), on which appellant relies.
. Super.Ct.Juv.R. 25(b) provides:
If by reason of absence, death, sickness or other disability the judge before whom the respondent had his factfinding hearing is unable to perform the duties to be performed by the Division after a finding of guilt or need for supervision, any other judge regularly sitting in or assigned to the Division may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the factfinding hearing or for any other reason, he may in his discretion grant a new factfinding hearing.
. It is clear that the judge who imposed disposition did not have a transcript of the factfind-ing proceedings. Further, although the record on appeal does not contain the dispositional report prepared on appellant, counsel for appellant pointed out to the court during his attempt to obtain a de novo hearing that the report contained only one or two lines concerning the circumstances of the offense.
. Fed.R.Crim.P. 25(b).
. While Notes of the Advisory Committee on Rules which accompany proposed rules are not authoritative, they are. somewhat analogous to a Congressional Committee Report in determining the intention of the framers of the rules. United States v. Mihalopoulos, 228 F.Supp. 994, 1002 (D.D.C.1964).
.Super.Ct.Juv.R. 107(c) provides in part:
A juvenile who has been placed in detention, shelter care, or released under conditions pursuant to D.C.Code § 16-2312, may, at any time thereafter upon written application to the Family Division have the order reviewed by the judge who entered the order, and a decision rendered within five days of presentation to the judge who will state his reasons therefor in writing. If the judge who entered the above order is unavailable or is no longer sitting in the Family Division at the time of the application, the judge then sitting in New Referrals Court shall review the order and may modify or terminate it and state his reasons therefor in writing.
. At oral argument, counsel for the government represented that the procedure utilized in this case is that regularly utilized in the Superior Court. It appears that unless the trial judge directs otherwise, the disposition is not conducted by the trial judge if that judge is no longer assigned to the Family Division. While we express no view on the desirability of such procedure, it is not sanctioned by the present rule. If change in such rule is to be made, it must be done pursuant to D.C.Code 1973, § 11-946, rather than by judicial decision.
. In Matter of C. A. P., D.C.App., 356 A.2d 335 (1976); Campbell v. United States, D.C.App., 295 A.2d 498 (1972).