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State v. L.J.D.

December 16, 1996

STATE OF WASHINGTON, RESPONDENT,
v.
L.J.D., B.D.: 3/29/78, APPELLANT.



Appeal from Superior Court of Island County. Docket No: 93-8-00290-1. Date filed: 07/15/94. Judge signing: Hon. Joan McPherson.

Petition for Review Denied April 2, 1997,

PER CURIAM. L.D. appeals from his conviction in juvenile court for second degree assault. He contends that his custodial statements were erroneously admitted. He also contends that the juvenile court erred in refusing to dismiss for case mismanagement and in permitting a witness to be impeached with a juvenile conviction. Finding no error, we affirm L.D. was charged with 1 count of second degree assault after an altercation that occurred near Oak Harbor High School on the morning of October 19, 1993. On April 26, 1994, the date on which the fact-finding hearing was scheduled to begin, defense counsel moved to dismiss the case under CrR 4.7 and CrR 8.3(b), asserting that the prosecutor had failed to comply with several discovery provisions of the Omnibus Order and had mismanaged the case by impeding the efforts of the defense investigator to interview the State's proposed witnesses, including Dr. Plastino, the doctor who had treated the victim in the hospital emergency room.

Although the defense had contacted most of the witnesses by the date of the hearing, defense counsel argued that the contact came too late to permit adequate preparation. He also asserted that the prosecutor had failed to turn over several witness statements, a claim the prosecutor denied. As a result of the State's mismanagement, defense counsel maintained that he had been unable to prepare the case adequately and that L.D.'s right to effective assistance of counsel and a fair trial had been substantially prejudiced. The juvenile court denied the motion to dismiss, but continued the case for the remainder of the day to permit defense counsel the opportunity to speak to any of the witnesses that had not yet been contacted.

On April 27, 1994, after having interviewed Dr. Plastino, defense counsel moved to exclude his testimony, arguing that the State had failed to reveal the subject matter of the testimony and that additional investigation was necessary. The juvenile court denied the motion.

Defense counsel then requested a continuance, arguing that the State's mismanagement had forced L.D. to choose between his right to a speedy trial and effective assistance of counsel. The court granted a continuance, and the fact-finding hearing commenced on July 12, 1994.

Following a lengthy fact-finding hearing, the juvenile court found that L.D. had struck J.T., knocking him to the ground with sufficient force to fracture his skull. The court rejected L.D.'s claim of self-defense, finding that J.T. had made no provocative movements or gestures. The court then entered a manifest inJustice finding and imposed a sentence of 25 days, a term below the standard range of 13-16 weeks.

L.D. first argues that the juvenile court erred in ruling that his custodial statements to police were admissible. In the statements, L.D. claimed that he had attempted to stop a confrontation between J.T. and another student and that he had struck J.T. first only because it appeared that J.T. was about to hit him. L.D. contends that the juvenile court failed to ensure that he understood his rights at the CrR 3.5 hearing and that the evidence was insufficient to support the determination that he knowingly and voluntarily waived his right to remain silent before giving a statement. Both contentions are without merit.

Prior to the CrR 3.5 hearing, the juvenile court advised L.D., in accordance with CrR 3.5(b), that he was permitted to testify at the hearing and that if he testified at the hearing, he did not waive his right to remain silent "during the trial part of the hearing." L.D. argues that under RCW 13.40.140(7), he had a right to be heard at the CrR 3.5 hearing and that under RCW 13.40.140(9), any waiver of that right must be "an express waiver intelligently made by the juvenile after the juvenile has been fully informed of the right being waived." Davis asserts that because the record does not establish that he expressly waived his right to be heard at the CrR 3.5 hearing, even though he was represented by counsel, the juvenile court violated RCW 13.40.140(9).

By its terms, however, RCW 13.40.140(7) applies to a juvenile's rights at "all adjudicatory proceedings." See also JuCR 7.11. L.D. makes no showing that an "adjudicatory" proceeding includes a CrR 3.5 hearing for purposes of RCW 13.40.140(7). Cf. State v. Linares, 75 Wash. App. 404, 408, 880 P.2d 550 (1994) (an "adjudicatory hearing" for purposes of RCW 13.40.140(8) refers to proceedings in which the court determines a juvenile's guilt or innocence, "not to preliminary or posttrial proceedings."). Nor has L.D. cited any authority suggesting that the express waiver provisions of RCW 13.40.140(9) apply to the court's obligation to inform the defendant in accordance with CrR 3.5(b). L.D.'s reliance on State v. Alexander, 55 Wash. App. 102, 776 P.2d 984 (1989), is misplaced, as Alexander involved the court's failure to provide the defendant with an opportunity to testify as to the voluntariness of his statement or to inform him that he could testify about the statement without otherwise waiving his right to remain silent.

L.D. next argues that the evidence was insufficient to support the juvenile court's determination that he knowingly and voluntarily waived his right to remain silent. In particular, he contends that there was an insufficient inquiry into the circumstances surrounding his interrogation.

When determining the voluntariness of a juvenile's statements, the court must consider the totality of the circumstances, including the juvenile's age, experience, education, background, intelligence and capacity to understand the warnings given, the nature of those rights, and the consequence of waiving those rights. State v. Schatmeier, 72 Wash. App. 711, 719-20, 866 P.2d 51, review denied, 124 Wash. 2d 1019, 881 P.2d 254 (1994). In this case, the juvenile court had before it evidence that L.D. was 15 on the date of the assault and a student at Oak Harbor High School. The juvenile court also heard the uncontroverted testimony of Sgt. Leonard Marlborough of the Oak Harbor Police Department describing the circumstances surrounding the custodial statements.

Sgt. Marlborough testified that he was dispatched to Oak Harbor High School on the morning of October 19, 1993. Upon arriving, he contacted L.D. in the dean's office and advised him that he had the right to remain silent, that anything he said would be used against him "in a court of law," that he had a right to have an attorney present, that if he was unable to afford an attorney, one would be appointed prior to questioning, and that he could exercise his rights and not answer questions at any time.

According to Sgt. Marlborough, L.D. appeared to be alert and coherent, and he responded "verbally," indicating that he understood his rights.

L.D. did not hesitate in answering questions about his rights and did not request an attorney. Sgt. Marlborough did not threaten L.D. or promise him anything in return for making a statement. After being advised of his rights, L.D. signed both the rights form and a written waiver and made an oral statement. Sgt. Marlborough then left the room while L.D. wrote down the statement. At the CrR 3.5 hearing, defense counsel did not attempt to controvert Sgt. Marlborough's account of ...


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