DocketNumber: 50638
Citation Numbers: 135 Ga. App. 565
Judges: Deen, Evans, Stolz
Filed Date: 9/2/1975
Status: Precedential
Modified Date: 1/11/2022
This is the second appearance of this case in this court. See M. K. H. v. State of Ga., 132 Ga. App. 143 (207 SE2d 645), where the appeal was dismissed as being premature. The instant appeal arises from a finding of delinquency and disposition of commitment to the Youth Detention Center. The record attached to the appeal in its earlier appearance reveals several facts which should be considered when reviewing the totality of the circumstances involved in this case. Since these facts were before the juvenile court judge below and are part of the official record in this court, they are available to us as we proceed through the decisional process.
Briefly stated, the offense occurred on December 24, 1973. The boy was arrested on December 27, 1973, one day before his fifteenth birthday. At the time, the child was a student at Riverdale Junior High School. A Cognitive Abilities Test by the juvenile court instructor-counselor made for the juvenile court shortly after his placement in custody, showed the following results: Vocabulary - 4.9 grade level; Reading - 5.3 grade level; Spelling - 6.2 grade level; Math - 5.4 grade level. The Otis-Lennon Mental Abilities Test showed a raw score of 20, a conversion I. Q. of 80. The Raven (Progressive Matrices) revealed a performance that was substandard. (R. 15) Psychological examination showed a "Dull Normal (I. Q. 87) Range of Intelligence with slight impairment of abstract reasoning abilities relative to his overall level of functioning . . . personality testing suggests the possibility of a latent or incipient schizophrenia which could impair judgment and impulse control.” (R. 17)
The juvenile court judge erred in allowing the officers to testify as to the hearsay remarks of a co-participant and his mother. We recognize the rule that, in the trial of a case before a judge without a jury, the rules
In Freeman v. Wilcox, 119 Ga. App. 325, 329, supra, this court stated: "In the present case Freeman’s confession was solicited out of court with neither counsel nor parent present. If Freeman was advised of his right to counsel and if he understood that right, it is clear from the record that his mother was not so advised. That is a crucial deficiency under the Gault case. Both must be advised. And we hold that such right extended to Freeman and his mother prior to his interrogation and the solicitation of the confession. We think, under the circumstances, that the confession was too suspect as to its procedural purity and its voluntariness to be allowed into evidence against Freeman.”
The minority seeks to distinguish Freeman on the basis that each case must be judged on its own facts. In that light, let us again return to the facts as revealed in the record before us. On the morning of December 27, 1973, a police car went out to M. K. H.’s residence. There the officers talked with him and asked him if he would voluntarily come to the station and talk about the fire, etc. The boy did so, but under questioning denied any knowledge of the fire and was returned to his residence. (T. 2,6) Just before M. K. H. was to be returned home, the police received a telephone call from another boy’s parents about the fire and their son’s involvement. This family arrived at the police station as M. K. H was being returned home. In their conversations with the police, the son confessed to being involved in the burglary and arson. He also implicated M. K. H. Orders were then issued for M. K. H. tobe arrested and returned to the police station. (T. 6) There is nothing in the record to indicate that the
Further, the record does not reveal that any effort was made by the arresting officers to determine if the child understood what was being said when the "Miranda rights” card was read to him. As previously noted, the juvenile involved was almost fifteen years of age, yet had a vocabulary which was at the 4.9 grade level, reading at the 5.3 grade level, spelling at the 6.2 grade level, math at the 5.4 grade level, and had a "dull normal (I. Q. 87) range of intelligence with slight impairment of abstract reasoning abilities relative to his overall level of functioning... [with] the possibility of latent or incipient schizophrenia which could impair judgment and impulse control.”
The adjudication of delinquency was based on hearsay evidence and had no probative value. We believe, "under the circumstances, that the confession was too suspect as to its procedural purity and its voluntariness to be allowed into evidence...” Freeman v. Wilcox, supra. No explanation appears in the record giving us the reason for the state’s failure to produce the direct evidence which was available at the juvenile hearing. The state may have had a sound case against M. K. H., but did not present it at the proper time. The adjudication of delinquency was not supported by sufficient competent evidence and therefore must be reversed.
Judgment reversed.