In the Interest of: C.A.M., Jr.

• Court: Missouri Court of Appeals
• Decided: May 3, 2022
• Docket: ED109128
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION FOUR

) No. ED109128 IN THE INTEREST OF: C.A.M., JR. ) ) Appeal from the Circuit Court of ) the City of St. Louis ) ) Honorable Steven R. Ohmer ) ) ) Filed: May 3, 2022

Introduction

C.A.M. Jr. appeals from the juvenile court’s judgment dismissing its jurisdiction over

him and allowing his case to be transferred to a court of general jurisdiction for prosecution as an

adult following a section 211.0711 hearing. C.A.M. Jr. brings two points on appeal. In Point I,

C.A.M. Jr. argues the juvenile court plainly erred and violated his constitutional rights to

confront the witnesses against him, due process, and be present at all “critical stages” by

conducting his certification hearing by two-way video instead of permitting him to be physically

present in court. In Point II, C.A.M. Jr. argues the juvenile court plainly erred and had no

jurisdiction to transfer his case to a court of general jurisdiction for prosecution as an adult

because he and his parents did not receive the proper notices and summonses as required by

sections 211.101 and 211.111 and Rules 114 and 129.2

1 All statutory references are to RSMo (2016), unless otherwise indicated. 2 All rule references are to the Missouri Supreme Court Rules (2016), unless otherwise indicated. Following an opinion by this Court on May 25, 2021, the case was transferred to the

Missouri Supreme Court along with several similar cases involving proceedings conducted by

video due to the COVID-19 pandemic. The Missouri Supreme Court issued three opinions in

January 20223 and re-transferred this case with instructions for this Court to reconsider our

holding given those decisions.

We hold the juvenile court plainly erred in holding C.A.M. Jr.’s certification hearing by

two-way video. Because we vacate the juvenile court’s certification judgment and remand for an

in-person hearing, we need not consider his second point.

Factual and Procedural Background

On September 3, 2019, the juvenile officer filed a petition alleging C.A.M. Jr. came

within the juvenile court’s jurisdiction under section 211.031.1(2)-(3) and C.A.M. Jr. committed,

if he was an adult, first-degree tampering, resisting or interfering with arrest, second-degree

murder, and unlawful use of a weapon.4 C.A.M. Jr. and his mother were personally served with

a summons and copy of the petition on October 11, 2019, ordering them to appear for a hearing

on the petition on November 1, 2019. On November 21, 2019, the juvenile officer moved to

dismiss its petition to allow C.A.M. Jr.’s case to be transferred to a court of general jurisdiction

for prosecution as an adult. The juvenile officer’s motion to dismiss included a subsection

entitled “Notice of Hearing,” which stated:

NOTICE IS HEREBY GIVEN that the Juvenile Officer has filed a Motion in the Circuit Court, Juvenile Division, a copy of which is attached hereto, requesting the Court to dismiss the petition heretofore filed in the interest of the said Juvenile to allow him/her to be prosecuted under the General Law and that

3 The Missouri Supreme Court decided J.A.T. v. Jackson Cty. Juvenile Office, 637 S.W.3d 1 (Mo. banc 2022); C.A.R.A. v. Jackson Cty. Juvenile Office, 637 S.W.3d 50 (Mo. banc 2022); and State v. Smith, 636 S.W.3d 576 (Mo. banc 2022). 4 The allegations that C.A.M. Jr. committed second-degree murder and unlawful use of a weapon were added by the juvenile officer’s amendment of the petition on October 1, 2019.

2 the Juvenile Officer will call up a status conference on said Motion on November 25, 2019, Courtroom No. 1, 920 North Vandeventer, St. Louis, Missouri.

The purpose of this Hearing is to determine whether the Juvenile is a proper subject to be dealt with under the provisions of the Juvenile Code. If it is determined that the juvenile is not a proper subject, the Court will dismiss the petition in order to allow prosecution under the general law.

You have the right to have an attorney present to assist you at the hearing, or you may waive your right to an attorney. If you desire to be represented by an attorney, you should begin now to obtain his services. If you cannot afford to pay an attorney, but wish to have an attorney represent you, the Court has the power to appoint a Public Defender, or other counsel, to represent you. However, the court may, after notice and hearing, order the custodian to make reimbursement for all or part of the cost of representation of the Juvenile.

You have a right to question any witnesses who appear at the hearing and to bring any witnesses with you.

This “Notice of Hearing” was addressed to C.A.M. Jr.’s attorney, C.A.M. Jr.’s mother,

C.A.M. Jr. in the care of Superintendent/Detention, and Superintendent/Detention. The juvenile

officer’s motion to dismiss also included a subsection entitled “Certificate of Service,” which

stated a copy of the motion to dismiss and “Notice of Hearing” “was served on the Juvenile and

the Juvenile’s custodians by personal service, or, with leave of the Court, by mailing a true copy

of the same by first-class, United States mail, postage pre-paid, to the last known address as

stated in the foregoing Notice of Hearing.”

A status conference on the juvenile officer’s motion to dismiss was held on November

25, 2019. Another status conference was held on March 19, 2020, where the juvenile court

scheduled C.A.M. Jr.’s certification hearing for May 18, 2020. On April 22, 2020, C.A.M. Jr.

filed notice of his intent to introduce business records at the certification hearing and endorsed

witnesses for the certification hearing. On May 11, 2020, C.A.M. Jr. moved to continue the

certification hearing set for May 18, 2020, with the juvenile officer’s consent. The juvenile court

rescheduled C.A.M. Jr.’s certification hearing for July 20, 2020.

3 C.A.M. Jr.’s certification hearing was held on July 20, 2020. The juvenile officer,

counsel for the juvenile officer, and C.A.M. Jr.’s counsel were physically present at the hearing.

C.A.M. Jr. appeared by two-way video conferencing from the juvenile detention center. The

witnesses called on C.A.M. Jr.’s behalf also appeared by video. C.A.M. Jr. did not object to his

attendance or the attendance of his witnesses at the certification hearing by video.

The juvenile court proceeded with C.A.M. Jr.’s certification hearing. Deputy Juvenile

Officer David Gaither testified in support of C.A.M. Jr. being tried as an adult. Gaither testified,

if the allegations against C.A.M. Jr. were true, he believed C.A.M. Jr. needed long-term care and

structure. He testified he knew of no private residential facilities in Missouri that would admit

C.A.M. Jr. if he was adjudicated for second-degree murder, and he noted C.A.M. Jr. had no

identifiable mental health needs requiring residential treatment services. Gaither testified he did

not believe the Division of Youth Services (“DYS”) was an appropriate placement for C.A.M. Jr.

He believed the seriousness of the alleged offenses “require[d] longer work than the time that is

available for [C.A.M. Jr.] to address issues of this significance” at DYS. C.A.M. Jr.’s counsel

cross-examined Gaither.

C.A.M. Jr. called two witnesses: his grandmother, Diane Sutton, and his relative, John

King. Sutton testified by video she believed C.A.M. Jr. needed structure and guidance but

C.A.M. Jr. should get the opportunity to “redeem his life as a child.” King testified by video he

believed C.A.M. Jr. was “a victim of his surroundings” and “was in the wrong place at the wrong

time.” He testified he believed C.A.M. Jr. needs guidance but could be rehabilitated.

Following the hearing, the juvenile court entered its judgment dismissing the petition

under section 211.071 and transferred jurisdiction over C.A.M. Jr. to a court of general

jurisdiction. C.A.M. Jr. was released and discharged from the juvenile court.

4 This appeal follows.

Standard of Review

C.A.M. Jr. did not object to the juvenile court conducting his certification hearing

without his physical presence or the alleged lack of notice and summonses provided to him and

his parents. “A party is not entitled to have allegations of error considered on appeal if they were

never presented to . . . the trial court.” Keling v. Keling, 155 S.W.3d 830, 833 (Mo. App. E.D.

2005). Thus, we may review C.A.M. Jr.’s claims only for plain error. Id. “Plain errors affecting

substantial rights may be considered on appeal, in the discretion of the court, though not raised or

preserved, when the court finds that manifest injustice or miscarriage of justice has resulted

therefrom.” Rule 84.13(c). “Although ‘prejudicial error’ is a condition precedent of ‘plain

error,’ ‘prejudicial error’ does not inevitably rise to the level of ‘plain error.’” Deck v. State, 68

S.W.3d 418, 424 (Mo. banc 2002). Plain error review involves two steps. State v. Darden, 263

S.W.3d 760, 762 (Mo. App. W.D. 2008). “First, the court must determine whether the trial court

committed an evident, obvious and clear error, which affected the substantial rights of the

appellant. If obvious and clear error is found in the first step of the review, the second step of

plain error review requires the court to determine whether manifest injustice or miscarriage of

justice resulted therefrom.” Id. at 762-63. “Appellate courts use the plain error rule sparingly

and limit its application to those cases where there is a strong, clear demonstration of manifest

injustice or miscarriage of justice.” State v. Perry, 954 S.W.2d 554, 560 (Mo. App. S.D. 1997).

Discussion

Point I: Certification Hearing Conducted Without C.A.M. Jr.’s Physical Presence

On May 4, 2020, the Missouri Supreme Court issued Operational Directives outlining

how Missouri Courts should handle in-person proceedings during the COVID-19 pandemic. The

5 Court suspended in-person proceedings with certain exceptions including “[p]roceedings

pursuant to chapters 210 and 211 pertaining to juvenile delinquency and abuse, neglect, and

termination of parental rights.” The Court then stated that for in-person hearings, “judges are

encouraged to utilize all available technologies – including teleconferencing and video

conferencing – to further limit in-person courtroom appearances to the extent not prohibited by

the constitution or statutes as to these proceedings.” (emphasis added).

During the pandemic, the juvenile court and detention center’s policy was not to bring

juveniles in detention to the courtroom for hearings because of public health concerns for the

entire detention center population. The juvenile court therefore prohibited C.A.M. Jr.’s physical

presence at his certification hearing.

In Point I, C.A.M. Jr. argues the juvenile court plainly erred by conducting his

certification hearing without his physical presence because doing so violated his constitutional

rights to confrontation, due process, and be present at “critical stages” as guaranteed by the Sixth

and Fourteenth Amendments to the United States Constitution, Article I, section 18(a) of the

Missouri Constitution, section 211.071, and Rules 114 and 129.

“Juvenile proceedings are civil, not criminal, and are focused on continuing care,

protection, and rehabilitation of the juvenile, and not punishment.” In re A.C.C., 561 S.W.3d

425, 428 (Mo. App. E.D. 2018) (citing J.D.H. v. Juvenile Court of St. Louis Cty., 508 S.W.2d

497, 500 (Mo. banc 1974)). However, “the constitutional protections applicable in criminal

proceedings are also applicable in juvenile delinquency proceedings due to the possibility of a

deprivation of liberty equivalent to criminal incarceration.” In re N.D.C., 229 S.W.3d 602, 605

(Mo. banc 2007). The United States Supreme Court has recognized certification hearings are

6 “critically important” proceedings that “must measure up to the essentials of due process and fair

treatment.” Kent v. United States, 383 U.S. 541, 560, 562 (1966).

The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against

him . . . .” U.S. CONST. amend. VI. The Sixth Amendment applies to the states through the

Fourteenth Amendment. State v. Justus, 205 S.W.3d 872, 878 n.6 (Mo. banc 2006). “One of the

most basic of the rights guaranteed by the Confrontation Clause is the accused’s right to be

present in the courtroom at every stage of his trial.” Illinois v. Allen, 397 U.S. 337, 338, 90 S.Ct.

1057, 25 L.Ed.2d 353 (1970) (emphasis added); see also MO. CONST. art. I, sec. 18(a) (emphasis

added) (“That in criminal prosecutions the accused shall have the right to appear and defend, in

person and by counsel”); § 211.071.7(3) (requiring that, upon finding the petition should be

dismissed, the juvenile court must enter a dismissal order containing “[f]indings showing that the

[certification] hearing was held in the presence of the child and his or her counsel”).

While the right to be present is rooted largely in the Confrontation Clause, the right also

has a due process component. United States v. Gagnon, 470 U.S. 522, 526 (1985). “[E]ven in

situations where the defendant is not actually confronting witnesses or evidence against him, he

has a due process right to be present in his own person whenever his presence has a relation,

reasonably substantial, to the fulness of his opportunity to defend against the charge.” Kentucky

v. Stincer, 482 U.S. 730, 745 (1987) (internal quotations omitted).

The right to be present is a common law principle designed to ensure the accused’s

presence impresses the gravity of the proceedings upon the participants. In Crosby v. United

States, the United States Supreme Court stated, “a fair trial could take place only if the jurors met

the defendant face-to-face and only if those testifying against the defendant did so in his

7 presence.” 506 U.S. 255, 259 (1993) (internal citations omitted). C.A.M. Jr. correctly notes

section 211.071.7(3) applies this principle to minors, requiring certification hearings to be held

“in the presence of the child.”

Our discussion is guided by the Missouri Supreme Court’s recent decision in J.A.T.

There, the Court stated it “was careful to ensure its order incorporating the [COVID] Operational

Directives would not be interpreted to permit the violation of a juvenile’s constitutional or

statutory rights.” 637 S.W.3d at 4. The Court emphasized its Operational Directives

“specifically provided that ‘proceedings pursuant to chapters 210 and 211 pertaining to juvenile

delinquency’ were excluded from the provisions allowing for remote proceedings.” Id. at 5. The

Directives further stated “[s]uch proceedings shall be limited to the attorneys, parties, witnesses,

security officers, and other individuals necessary to the proceedings as determined by the judge

presiding over the proceedings.” Id. (citing In re Operation Directives for Easing COVID-19

Restrictions on In-Person Proceedings (May 4, 2020)).

Here, C.A.M. Jr. was prohibited from attending his certification hearing in person, a

“critically important” proceeding to which the “essentials of due process and fair treatment”

attach. Kent, 383 U.S. at 560, 562. C.A.M. Jr.’s constitutional rights were therefore implicated,

contravening the Missouri Supreme Court’s careful drafting of its COVID Operational

Directives “not [to] be interpreted to permit the violation of a juvenile’s constitutional or

statutory rights.” The juvenile court therefore had no discretion under the Operational Directives

to hold the certification hearing without C.A.M. Jr.’s physical presence. J.A.T., 637 S.W.3d at 4-

5.

We acknowledge the right to be physically present can be waived, provided the waiver is

made “voluntarily, knowingly, and intelligently.” Id. at 8 (citing State v. Driskill, 459 S.W.3d

8 412, 426 (Mo. banc 2015)). Although C.A.M. Jr. did not object to the video format of his

certification hearing, nothing in the record indicates his purported unspoken waiver was made

voluntarily, knowingly, and intelligently. As the J.A.T. Court noted, “[n]either the United States

Constitution nor the Missouri Constitution are entitled to take ‘sick days.’” 637 S.W.3d at 10.

Next, we address our plain error standard of review. C.A.M. Jr. established (1) the

juvenile court committed an obvious and clear error affecting his substantial rights and (2) he

suffered manifest injustice or miscarriage of justice as a result. See Rule 84.13(c); Darden, 263

S.W.3d at 762-63 (Mo. App. W.D. 2008). C.A.M. Jr.’s substantial rights were violated because

he was denied, and did not voluntarily, knowingly, and intelligently waive, his constitutional

right to be physically present at his “critically important” certification hearing. Kent, 383 U.S. at

560, 562. This violation was an “obvious and clear” error because the Operational Directives

provided “proceedings pursuant to chapters 210 and 211 pertaining to juvenile delinquency’

were excluded from the provisions allowing for remote proceedings.” J.A.T., 637 S.W.3d at 5.

Upholding this violation of C.A.M. Jr.’s constitutional right to be present at his certification

hearing would be a miscarriage of justice, particularly given the Operational Directives stated

they were not to be interpreted to permit violations of juveniles’ constitutional or statutory rights.

Id. at 4, 10.

Our holding is limited to C.A.M. Jr.’s right to be physically present at a “critically

important” stage. As the J.A.T. Court explained, the right to be physically present reaches

circumstances where “a fair and just hearing would be thwarted by [the juvenile’s] absence, and

to that extent only." 637 S.W.3d at 8. Because we remand for an in-person certification hearing,

we need not address C.A.M. Jr.’s claim that his right to confrontation was also violated. See

9 J.A.T., 637 S.W.3d 10 n.5. We remand for the juvenile court to hold his certification hearing in

person.

Point I is granted.

Point II: Notice and Summonses Provided to C.A.M. Jr. and His Parents

In Point II, C.A.M. Jr. argues the juvenile court plainly erred by transferring his case to a

court of general jurisdiction for prosecution as an adult because he and his parents did not

receive the proper notices and summonses as required by sections 211.101 and 211.111 and

Rules 114 and 129. He argues this lack of sufficient notice rendered the juvenile court without

jurisdiction to conduct his certification hearing, dismiss the petition against him, and allow his

case to be transferred to a court of general jurisdiction.

Because Point I is dispositive and requires remand, we need not consider whether the

juvenile court plainly erred in this respect.

Conclusion

The juvenile court plainly erred conducting C.A.M. Jr.’s certification hearing without his

presence in court. The juvenile court’s certification judgment is vacated and remanded. We

instruct the juvenile court to conduct C.A.M. Jr.’s certification hearing with C.A.M. Jr.

physically present in the courtroom.

_______________________________ Philip M. Hess, Judge

Gary M. Gaertner, Jr., P.J., and Michael Gardner, J. concur.