United States v. Walter Howard

449 F.2d 1086

• Court: Court of Appeals for the D.C. Circuit
• Decided: July 20, 1971
• Docket: 23830_1
• Status: Published

Opinions

LEVENTHAL, Circuit Judge:

This is an appeal from a judgment entered on conviction of first-degree felony-murder, armed robbery, assault with a dangerous weapon, assault upon a police officer with a dangerous weapon, and carrying a dangerous weapon (22 D.C.Code §§ 2401, 3202, 502, 505(b), and 3204), sentencing appellant to life imprisonment on the felony-murder count, ten to thirty years for armed robbery, three to ten years for each of the assault counts, and one year on the weapons charge. Appellant, who was a juvenile at the time of these offenses, challenges the jurisdiction of the District Court, claiming that the Juvenile Court improperly waived jurisdiction over him.

I. FACTUAL BACKGROUND AND WAIVER PROCEEDINGS IN JUVENILE COURT AND DISTRICT COURT

The Offense

There is little dispute concerning the events which gave rise to appellant’s prosecution. On May 7,1968, four young men entered the Brinsfield Drug Store at 3939 South Capitol Street and proceeded to rob the owner and his employees. During the course of the robbery a policeman, Detective Daniel E. Keller, suddenly appeared on the scene. A man inside the store fired a shot at the Detective as he approached, and that man and appellant then forced Mr. Brinsfield to walk with them to the front of the store in an attempt to escape. As they began to flee, Mr. Sweitzer, an employee, struggled with the robber who had fired at Detective Keller, and in the course of the fight, Mr. Sweitzer was shot and fatally wounded. Appellant was later identified as the man who had fired the fatal shot.

Appellant’s Prior Juvenile Record

Appellant was born on July 8, 1950, and was first involved with the Juvenile Court on July 30, 1964, when he was charged with housebreaking. He was placed on probation for that offense on May 4, 1965, and remained on probation until March 15, 1967. During his probation, appellant was arrested for unauthorized use of a vehicle (September 22, 1965) and was fined $10. On November 29, 1967, appellant was again arrested, for driving without a permit.

The first complaint against appellant involving an offense like robbery charged that on March 19, 1968, he and two other men robbed a credit union at gunpoint, taking approximately $90 and some jewelry from an employee. The record shows that on March 25, 1968, appellant, again with two others, robbed a second credit union, this time taking about $40 in cash. On April 24, 1968, appellant’s mother filed a complaint with the Juvenile Court that he was habitually beyond her control, in that he left home without permission, would not return until late at night, and refused to explain his absences or activities while away from home. Appellant was placed in the Receiving Home on April 24, but absconded on April 29, eight days before the robbery involved here. After his arrest on May 7, two additional charges of armed robbery were placed against appellant, one having occurred on May 1, and the other on May 3.

Waiver Hearing in Juvenile Court

At the waiver hearing on July 1, 1968, counsel for appellant proposed several pi’ograms toward the objective of his rehabilitation. Mr. Edwin Bethia, a professional social worker affiliated with the Neighborhood Delinquent Youth Program, stated that he regarded appellant as an excellent candidate for the Youth Enterprise Program (W.H. 10). He based his conclusion on appellant’s apparent leadership qualities and his desire for money.

Mr. Donald P. Bennett, the former Intake Officer of the Juvenile Court, testified. In his report of April 29, 1968, which was put in the record, Mr. Bennett had concluded that appellant “can be helped in a juvenile setting since we have not exhausted our services, and since respondent shows a promise of rehabilitation, it is my recommendation that he be committed to the Department of Welfare.” (W.H. 16). However, in his testimony at the waiver hearing, given after appellant’s escape from the Receiving Home and his latest armed robberies, Mr. Bennett recommended that jurisdiction over appellant be waived: “I think of him somewhat of a sort you cannot treat if he will not avail himself of treatment. There is a question of whether he will not leave if he is under less strict controls. Number two, on the basis of behavior patterns, I cannot really consider him a juvenile, but more of an adult.” (W.H. 24.)

Dr. Barry A. Bukatman, a psychiatrist for the Offender Rehabilitation Project of the Legal Aid Agency, testified that appellant’s chances for rehabilitation were “very, very good” because appellant had the capabilities to utilize group therapy, if his treatments were intensive, and in a group setting with boys of his own age, rather than an adult setting where he would be attracted to the “in group.” (W.H. 33). In addition, Dr. Bukatman filed an evaluation report dated June 24, 1968, wherein he stated, “If [Walter Howard] is incarcerated and maintained solely in a punitive penal institution, it is quite likely that he will become more deeply involved in crime until he ultimately oversteps his abilities and either is incarcerated for life or killed. On the other hand, if Walter is placed in an institution or setting where his strengths and abilities can be fostered and encouraged, to the extent even that he is allowed to continue with his current plans (which are not unrealistic) of becoming a lawyer, he has the potential to become a useful and meaningful member of society.”

Miss Donna Jane Knowles, a case worker for the Offender Rehabilitation Project, summarized the vocational and academic programs available at the juvenile facility at Laurel, Maryland for older, more hardened male delinquents, which had opened around May 15, 1968. The facility was designed for 150 occupants and was scheduled to be fully operable by September, 1968, with group and individual therapy programs conducted by three psychologists and a psychiatrist, as well as academic and vocational courses. Miss Knowles had visited Laurel and considered it a “secure” institution, even though seven juvenile residents had escaped since its opening. (Tr. 231.)

The Court subsequently heard testimony from appellant in his own behalf. On July 30, 1968, the Juvenile Court waived jurisdiction over appellant. Judge Ketcham stated in his opinion that appellant’s “alleged involvement in these new, most serious offenses indicates that rehabilitation within the presently available juvenile facilities is unlikely.”¹

As it happened, July 30, 1968, was also the day this Court decided Kent v. United States, 130 U.S.App.D.C. 343, 401 F.2d 408 (1968). Appellant’s counsel moved on August 14 to reopen the waiver hearing based on his understanding of the Kent decision. On September 25, the Juvenile Court ordered the Legal Psychiatric Services to determine whether appellant was suitable for civil commitment on the ground of mental illness. The court stated that unless appellant “is civilly committable * * * the ease is waived.”

On November 12, 1968, the waiver hearing was resumed in Juvenile Court. The Court referred to the report of Dr. Charles E. Ruch, staff psychiatrist with the Legal Psychiatric Services of the District of Columbia Public Health Service, which stated that appellant showed no signs of mental illness. Judge Ketch-am also stated that he had visited the new Laurel facility in late July, and that he had seen “no evidence” of the type of treatment and rehabilitation programs recommended by Dr. Bukatman. The court reaffirmed its original decision waiving appellant to the District Court.

District Court Proceedings

On October 20-23, 1969, the District Court heard evidence on appellant’s motion to dismiss the indictment on the ground of improper waiver of Juvenile Court jurisdiction. Dr. Markwell, a clinical psychologist, testified for appellant. He had interviewed appellant at the request of the Offender Rehabilitation Project, and given him psychological evaluation tests. He testified that appellant was a “borderline psychotic” (Tr. 22), requiring “some kind of group experience where he interacted with other persons about his own age and * * * in a therapeutic situation, * * * and some kind of vocational training. (Tr. 26).

Dr. Markwell’s conclusion was disputed by two witnesses called by the Government. Dr. Albert E. Marland, a court-appointed psychiatrist, testified that appellant was not “psychotic in any way.” (Tr. 36). He also disagreed with the conclusion of Dr. Eliot Blum, a psychologist at St. Elizabeths Hospital who had submitted a report to the Juvenile Court, that appellant was a sociopath. (Tr. 37-39). Dr. Marland reiterated that appellant showed no signs of any mental illness. (Tr. 38.)

Dr. Daniel A. Pugh, a psychiatrist at St. Elizabeths, also testified for the prosecution. He had been appellant’s chief interviewer at St. Elizabeths and had participated in the staff conference of July 15, 1968, which concluded that appellant was “not suffering from a mental illness.” (Tr. 54). He also stated that during appellant’s hospitalization there was never any evidence “of any loss of contact with reality.” (Tr. 56.) He did not believe that any essential behavior on appellant’s part “can be attributed to any psychiatric illness because there is no evidence that there has been any illness in Mr. Howard’s case.”

Mr. Bennett, the Intake Officer of the Juvenile Court, also testiifed in the District Court. He reiterated his reasons for recommending waiver of juvenile jurisdiction, including his view that appellant was a “most sophisticated youngster apparently well trained and experienced in armed robbery and obtaining ‘fast’ money,” and that appellant represented “a potential threat to the safety of the community.” (Tr. 69-70.)

All of the Juvenile Court records were received into evidence by the District Court, and transcripts of the original and resumed waiver hearings were read into the record. The District Court upheld the Juvenile Court’s waiver as “appropriate and proper” (Tr. 326), stating that appellant “was not suffering from any mental illness, and there is no present indication of any mental illness.” (Tr. 327).

II. VALIDITY OF JUVENILE COURT WAIVER

A. We begin by considering, and rejecting, the contention that appellant was a “sick juvenile” and therefore could not be waived to the District Court.

In our 1968 decision on remand in Kent v. United States, supra, the Juvenile Court had waived jurisdiction over Kent knowing that he needed mental treatment, and was civilly committable, on the ground that his “potential danger to himself and others” made the District Court a more appropriate forum for ordering treatment. This court held that the Juvenile Court Act forbids “waiver of a seriously ill juvenile.” The court stated (130 U.S.App.D.C. at 347, 401 F.2d at 412):

“ [I]t is clear that society can be protected without departing from civilized standards for the prompt and adequate care of disturbed children. The juvenile court can institute civil commitment proceedings against the youngster. If commitment ensues, he will be confined and treated until he is no longer dangerous • due to mental illness. If not, the juvenile court will be free to follow its usual procedures.

“Since waiver was not necessary for the protection of society and not conducive to Kent’s rehabilitation, its exercise in this case violated the social welfare philosophy of the Juvenile Court Act. Of course, this philosophy does not forbid all waivers. We only decide here that it does forbid waiver of a seriously ill juvenile.”

In Kent there was a premise of civil commitment guaranteeing public safety during the period of treatment. Although there were contrary indications to some extent from two psychologists, we cannot say that the Juvenile Court erred in concluding that appellant was not subject to civil commitment.²

B. Appellant challenges the validity of his waiver on the ground that the Juvenile Court did not fully explore the possibilities for his rehabilitation as required by statute and by decisions of this court and the Supreme Court. The provisions of the Juvenile Court Act governing waiver provide that jurisdiction may be waived only after “full investigation.” ³ Section 16-2316(1) of the D.C.Code in turn provides that the waiver statute “shall be liberally construed so that * * * each child coming under the court’s jurisdiction * *. * shall receive such care and guidance * * * as will serve his welfare and the best interests of the District.”

The “full investigation” required prior to waiver “cannot be mere ritual.” ⁴ The statutory mandate anticipates a thorough exploration of the possible dispositions, short of waiver, by which the welfare of the juvenile and the interests of the District may be secured.⁵ As this court stated in Haziel v. United States, 131 U.S.App.D.C. 298, 302, 404 F.2d 1275, 1279 (1968),

Both counsel and the court have a vital role to play in this exploration. The child’s advocate should search for a plan, or perhaps a range of plans, which may persuade the court that the welfare of the child and the safety of the community can be served without waiver. And the court itself cannot remain inert. It also has a duty to utilize its “facilities, personnel, and expertise for a proper determination of the waiver issue.” [Citation omitted]

Furthermore, as the Supreme Court held in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), the decision to waive jurisdiction must be accompanied by a “statement of the reasons or considerations therefor.” The Court did not “read the statute as requiring that this statement must be formal or that it should necessarily include conventional findings of fact. But the statement should be sufficient to demon-trate that the statutory requirement of ‘full investigation’ has been met; and that the question has received the careful consideration of the Juvenile Court; and it must set forth the basis for the order with sufficient specificity to permit meaningful review.” Id. at 561, 86 S.Ct. at 1057.

With due regard for the presumption in favor of treating juvenile defendants in a juvenile setting, and the grave consequences that may follow from waiver to the District Court, we nevertheless conclude that the Juvenile Court did not abuse its discretion in determining, after exhaustive inquiry, that appellant’s “rehabilitation within the presently available juvenile facilities is unlikely.” ⁶

The Juvenile Court held extensive hearings on appellant’s prospects for rehabilitation, as well as the facilities available to carry out a meaningful program. While appellant’s chances for rehabilitation were viewed favorably by Dr. Bu-katman and Mr. Bethia of the Neighborhood Delinquent Youth Program, Mr. Bennett, the Intake Officer, who once had the same view as these two witnesses, testified that appellant’s escape from the receiving home rendered him an unlikely candidate for successful treatment. Notwithstanding the testimony of Miss Knowles regarding the new Laurel youth facility, the court acted within its permissible discretion when it concluded, following personal visits by the judge, that the Laurel facility lacked the programs necessary for appellant’s rehabilitation and in addition could not guarantee security of confinement.

The court was also entitled to consider, as it did, that appellant had reached the age of 18 at the time of his waiver hearing, and would be subject to juvenile jurisdiction for less than three years. 11 D.C.Code § 1551. The court could reasonably conclude, on the basis of testimony and appellant’s past record, that even assuming a juvenile like appellant could be rehabilitated if provided with rehabilitation programs over a longer period of time, the short span available to the Juvenile Court as to this appellant would be insufficient to ensure success in any rehabilitative endeavor. The court’s statement of November 12, 1968, without disturbing the July 30 waiver order, concluded that appellant, if guilty, “would best be dealt with by a wider range of powers, longer term possibilities, and greater choice of facilities that are available to the United States District Court and the Attorney General.” (Tr. 325.) We see no abuse of discretion in the Juvenile Court’s conclusion, following its effort to explore the possibilities for treating appellant in a juvenile setting, that no meaningful results could be accomplished with the limited facilities available to it, and in the limited time frame of the Juvenile Court’s jurisdiction.⁷

III. APPLICATION OF YOUTH CORRECTIONS ACT

We turn to the possibility that appellant, though unsuited for treatment in the juvenile setting, might nevertheless have been appropriately considered for a sentence under the Youth Corrections Act, 18 U.S.C. § 5005 et seq.

Such a disposition lies within the range of possibilities foreshadowed by the Juvenile Court itself, which concluded that appellant could “best be dealt with by a wider range of powers, longer term possibilities, and greater choice of facilities” available to the District Court. In view of that statement, and the decisive part which it and similar considerations obviously played in the waiver decision, the District Court was required to give full attention to the prospects of this waived juvenile for rehabilitation under the long-range programs of the YCA.

The Government contends that appellant’s conviction of first degree murder precludes any sentencing under the Youth Corrections Act. The Government argues that since 22 D.C.Code § 2404 provides that the penalty for first degree murder is death or life imprisonment, the sentencing judge has no discretion to impose any other sentence. We do not agree.

The ordinary criminal law provisions of the Code which specify the punishment for a crime are fully operative in limiting the sentence a judge may lawfully impose as to an adult offender, with detention for felonies prescribed as imprisonment in a penitentiary. However, if the defendant qualifies under the Youth Corrections Act, 18 U.S.C. § 5010, then the judge is not subject to the punishment provisions generally prescribed for the crime, unless he has made a prior determination that he will not impose sentence under the Youth Corrections Act. United States v. Waters, 141 U.S.App.D.C. 289, 437 F.2d 722 (1970). While a sentence under the Youth Corrections Act usually provides for confinement shorter than that accorded adult offenders, it may provide for confinement for a term longer than that permissible for adult offenders under the general criminal law provisions of the Code; in either event the Youth Corrections Act sentence prescribes confinement in a rehabilitative setting, with other youths, and not imprisonment in a penitentiary where the defendant would be subject to the influence of hardened adult offenders, Har-vin v. United States, 144 U.S.App.D.C. 199, 445 F.2d 675 (May 7, 1971) (En banc).

The Youth Corrections Act is applicable to youth offenders (i. e. under 22 years of age at the time of conviction) who commit an offense “punishable by imprisonment.” 18 U.S.C. § 5010. This is applicable in terms where the jury by its unanimous verdict, concludes both that defendant is guilty of having committed murder in the first degree and shall be punished by life imprisonment. It is not the place of this court to carve an exception into the statute not written in its language. Our conclusion is the more clear when we see, on studying the subject, that in a closely related statute providing for liberalizing of ordinary sentencing provisions, Congress did write in an exception. We refer to 18 U.S.C. § 4209, dealing with “young adult offenders” (ages 22 through 25) which contains an express exception for offenses “for which there is provided a mandatory penalty.” That exception plainly renders Section 4209 inapplicable to young adult offenders for an offense carrying a penalty that is “mandatory” for adult offenders, which covers the case of a verdict finding guilt of first degree murder and providing for life imprisonment. But neither the exception set forth in Section 4209 nor any other was written into Section 5010, which applies to all “youth offenders” who commit a crime “punishable by imprisonment.” ⁸

The same considerations also dispose of the Government’s contention that Youth Corrections Act disposition is negatived by the statute providing that a person sentenced for first-degree murder shall not be eligible for parole until 20 years after he begins serving his sentence. That provision in 22 D.C.Code § 2404 is only applicable to a person convicted of first degree murder “upon whom a sentence of life imprisonment is imposed.”

It is elementary that the jury verdict is not a sentence. The court’s judgment sentencing a defendant under the Youth Corrections Act is not a parole from a sentence of life imprisonment. It is a sentence of confinement under special conditions. A youth offender found guilty of first degree murder has committed an offense “punishable” by life imprisonment, as we have noted, but when he has been sentenced under the Youth Corrections Act he is not one upon whom a sentence of life imprisonment has been imposd.

We are not free to disregard what the Youth Corrections Act provides in its language on the ground that it leads to absurd results. This can be dramatically illustrated by reference to the felony murder rule where first degree murder may be the result of, say, a robbery that is planned but a homicide that is happenstance. A youth who plans and succeeds in a robbery is eligible for consideration under the Youth Corrections Act. Even though the crime is serious there may be rehabilitative potential in a young man, whose turn to crime may have reflected bad companions and example in an unfair slum rather than hardened depravity. United States v. Waters, supra. If by pure accident a death occurred in the course of the robbery the result in law is to make the offender guilty of first degree felony murder, yet so far as sentencing discretion is concerned, this accident might not reduce his potential for rehabilitation, and might indeed enhance it with remorse. This is for the sentencing judge to determine.

The record before us does not indicate whether the District Court considered the possibility of sentencing appellant under the Youth Corrections Act, or even whether the District Judge felt free to do so. We think the course generally prescribed for sentencing judges by United States v. Waters, supra, is applicable in the present case, though sentence was imposed prior to Waters, because the court was sentencing a juvenile who had been waived by the Juvenile Court for the purpose of obtaining a judgment with the broad flexibility and long supervision span available in a sentence imposed by the District Court. We therefore remand the record with instructions to the District Court to consider the possibility of sentencing under the Youth Corrections Act in accordance with the rule of United States v. Waters.

So ordered.

1 . In its statement of reasons supporting appellant's waiver, the Juvenile Court stated:

Respondent lias had repeated contact with the Juvenile Court during the past four years. Although his response to court services was initially promising, his alleged involvement in these new, most serious offenses indicates that rehabilitation within the presently available juvenile facilities is unlikely.

Respondent is a highly sophisticated young man of 18 who is alleged to have committed several armed robberies. lie absconded once from the Receiving Home. A Juvenile setting cannot offer Respondent the rehabilitative programs lie needs nor the protection that the community requires. If Respondent is found to have committed the alleged felonies, the safety of the public will require that he be incarcerated in a secure institution for a protracted period while undergoing treatment.

2 . Dr. Mnrkwell, a clinical psychologist, testified on the basis of interviews and psychological tests that appellant was a “border line psychotic” and Dr. Blum, a psychologist at Saint Elizabeths, reported that appellant was a “sociopath.” However, three psychiatrists, Dr. JIarland, appointed by the court, and Dr. Pugh, of Saint Elizabeths and Dr. Ruch of Legal Psychiatric Services, concluded that appellant showed no signs of mental illness.

3 . 11 D.C.Code § 1553.

4 . Haziel v. United States, 131 U.S.App.D.C. 298, 303, 404 F.2d 1275, 1280 (1968).

5 . Id. at 302, 404 F.2d at 1279.

6 . In re Howard, Docket No. 68-1981-J.

7 . The court's statement of reasons for waiver, contained in its report of July 30, 190S, does not expressly state the various programs and rehabilitative possibilities explored by the court. Although the requirement of such full statement was set forth in I-Iaziel v. United States, supra, that requirement was prospective in application only. Since Ilaziel was decided in September, 1968, this requirement has no bearing on the validity of the July, 1968, report. As for the reinstatement order of November, 1968, that followed a bearing whose only purpose was to determine appellant’s suitability for civil commitment. IVe regard the July 30 date as controlling particularly in view of the care which this record reveals was accorded appellant by the Juvenile Court.

8 . When Congress amended 22 D.C.Code § 2404 in 1962 to permit life imprisonment, in lieu of what had formerly been a mandatory death penalty, Congress could, if it had so intended, excepted first degree murder from the coverage of the YCA. Pub.Law 85-752 § 4, 72 Stat. 846 (August 25, 1958).