
    STATE of Louisiana in the Interest of Raymond CAMPBELL.
    No. 13164.
    Court of Appeal of Louisiana, Second Circuit.
    March 21, 1977.
    En Banc. Rehearing Denied April 25, 1977.
    
      Piper & Brown, by Robert E. Piper, Jr., Shreveport, for appellant.
    James Lynn Davis, Dist. Atty., by Herman L. Lawson, Asst. Dist. Atty., Mansfield, for appellee.
    Before BOLIN, MARVIN and JONES, JJ.
   BOLIN, Judge.

Raymond Campbell was adjudicated a juvenile delinquent based upon a finding that he was guilty of simple burglary in violation of Louisiana Revised Statutes 14:62. He appeals and we affirm.

The inculpatory evidence consisted of a written confession, an oral confession, exhibits consisting of some of the items taken in the burglary, and the testimony of an accomplice. Immediately prior to a hearing on the merits there was an evidentiary hearing on defendant’s motion to suppress the written confession and exhibits. The court overruled the motion to suppress and both the confessions and the exhibits were admitted in evidence at the trial on the merits.

On appeal it is asserted the trial court erred in refusing to suppress the confessions and exhibits. Appellant argues that the confessions were inadmissible because not proved to be freely and voluntarily made as required by Louisiana Revised Statutes 15:451.

The burglary occurred about December 28, 1975. On December 29, 1975 the juvenile was arrested and charged with the burglary, which he then denied, and was released on a bond signed by his mother.

The juvenile was again picked up at about 3:00 p. m., on January 23, 1976, in connection with a charge of discharging a firearm in the city of Mansfield. He was taken to the jail where he was interrogated by several members of the police department about the firearms charge, which he denied. He was again released in the custody of his mother.

Later the same date, at 9:00 p. m., four police officers went to defendant’s home and asked his parents if they could take Raymond to the station for further questioning. The officers requested one or both of the parents to accompany them. The mother agreed to come to the station as soon as she could dress and shortly thereafter she arrived at the station.

Raymond was interrogated in the presence of his mother for about twenty minutes, during which time he consistently denied being involved in either of the offenses about which he was being questioned. The principal interrogator was dissatisfied with the progress of the questioning and asked the mother to go into another room, which she did. The questioning continued and the boy admitted firing the gun; also, he admitted he knew where the gun was hidden. When the mother returned to the room she told Raymond to give the officers the gun if he had it or if he knew where it was. He accompanied the officers to the pasture where.the gun was found covered by some leaves. They returned to the station and Raymond’s mother went home.

The officers continued to question Raymond for an hour or more and he was placed in jail about midnight where he remained until Monday afternoon, approximately 64 hours.

The officers testified he admitted both the firearms charge and confessed to the burglary. They also testified that Raymond received an explanation of his rights as required by the Miranda decision, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Raymond, on the other hand, steadfastly denied he orally confessed to the officers that he was involved in the burglary. He maintained he admitted only to knowing who had the gun and where it was hidden.

On Monday afternoon, January 26, 1976, the juvenile probation officer removed Raymond from the jail and told him the judge had said he could go home but that he (the officer) needed to talk with him first. During this conversation the officer advised Raymond of his Miranda rights. He testified he talked to the boy about five minutes and asked him if he wanted to make a statement; defendant answered affirmatively and wrote his statement or confession to the burglary in the officer’s presence. The form on which the confession is written contains a printed statement of the Miranda rights. Raymond acknowledged he read this printed statement of rights and that he understood he did not have to make any statement or confession. However, he said the officer told him he could go home if he wrote the statement. He claimed the confession was made because of fear that he would have to return to jail if he did not make it. The juvenile officer denied making any promises or imposing any conditions on Raymond’s release in order to obtain the confession.

Appellant urges on appeal the confessions were involuntary and for that reason inadmissible; that the adjudication of delinquency was based on this illegally admitted evidence and should be reversed and set aside. He argues the oral admission or confession was given as a result of threats from the police officers and after hours of continuous questioning out of the presence of his mother or of counsel. He stresses the written confession was involuntary because he gave it after being detained a considerable period of time during which he was without advice of parent or counsel, and after being told he would be released if he would make the statement, all in violation of Louisiana Revised Statutes 13:1577, A.

Appellee urges that the. confessions were voluntary and that-R.S. 13:1577, B and C qualify the mandate of Subsection A and permit the detention in jail of a juvenile over the age of fifteen.

Appellant relies on cases involving violation of R.S. 13:1577. In State, in the Interest of Wesley, 285 So.2d 308 (La.App. 4th Cir., 1973,) the court held a confession inadmissible where it was obtained at two a. m., from a fourteen-year-old child who was taken into custody at eleven p. m., was detained and transported in association with adult offenders in violation of 13:1577(0); was interrogated over three hours in the middle of the night and who did not, during this period of time, have the benefit of counsel of parent, friend, attorney, judge, juvenile probation officer, or anyone else.

Also cited by appellant are the companion cases of State, in the Interest of White, 160 So.2d 344 (La.App. 4th Cir., 1964) and State in the Interest of Garland, 160 So.2d 340 (La.App. 4th Cir., 1964). In Garland a fifteen-year-old boy was taken into custody at 3:15 a. m., by two deputy marshals who had no reason to apprehend defendant except for his presence on the street at that hour. Garland was not released to his parent or custodian although no showing of impracticability or inadvisability had been made. Instead, for more than six hours he was interrogated by the police in the investigation of a series of burglaries allegedly committed by defendant and two other juveniles. At 5:30 a. m., Garland identified White (also age 15) as a companion and the police went to White’s home, awakened him and took him from his home to the jail. White was likewise not dealt with as required by 13:1577. On the contrary, he too was interrogated by the police until about nine a. m., at which time both Garland and White signed the two confessions. Under the facts recited the court concluded the confessions were not freely and voluntarily made and could not be used against the juveniles nor be admitted into evidence under Louisiana Constitution Articles 1, §§ 1 and 2, and United States Constitution, Amendment XIV.

We find no such extreme circumstances in this case as those in Wesley, Garland and White.

In considering the admissibility of the two confessions we will assume, and we are inclined to think rightly so, that the oral confession was involuntarily obtained and should have been suppressed. This is not to say that a juvenile defendant could not make a voluntary oral confession, but under the circumstances of this case the fact that the mother was required to leave the room where the interrogation was taking place and the alleged confession was obtained out of her presence makes that confession suspect.

However, we find the written confession was voluntarily given; that appellant was advised of his Miranda rights; that he read and understood these rights which were printed directly above the body of his confession; that the juvenile probation officer who released Raymond from jail and talked with him at the time of his release made no promises or threats in order to induce Raymond to make the written statement; and that Raymond, a sixteen-year-old junior in high school was of sufficient age and intelligence to realize what he was doing when he wrote his confession.

Finally, Curtis Henderson, who had confessed to the burglary and had served five months in Louisiana Training Institute, testified that he and Raymond committed the burglary together; that they took some money and Raymond took the gun which was identified as the one stolen from the burglarized building and the one which Raymond had fired on January 23, 1976.

Under Louisiana Code of Criminal Procedure Article 921, a judgment or ruling shall not be reversed by an appellate court on any ground unless in the opinion of the court, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, is prejudicial to the substantive right of the accused, or constitutes a substantial violation of a constitutional or statutory right. State v. Hopper, 253 La. 439, 218 So.2d 551 (1969).

We find the written confession was- properly admitted into evidence, the state having proved the juvenile received and understood the Miranda warnings, and that the confession was free and voluntary and not the product of coercion, maltreatment, or promises. Louisiana Code of Criminal Procedure Article 703; State v. Whatley, 320 So.2d 123 (La.1975).

Finding no prejudicial error, and that the admissible evidence supports the judgment, it is affirmed.

JONES, J., dissents and assigns written reasons.

JONES, Judge,

dissenting:

I respectfully dissent.

The essential facts of this case are not in dispute. The office of the Nabors Oil Company was burglarized on or about December 28, 1975. On December 29, 1975, Raymond Campbell, a 16 year old juvenile, was arrested in connection with that burglary, which he denied committing. The Mansfield Police officers who made this arrest testified the arrest was based upon information provided by an informer who was with the juvenile at the time of the burglary. Raymond was then released on a bond signed by his mother.

On January 23, 1976, Raymond was taken into custody about 3:00 P.M. in connection with the discharge of a firearm within the city of Mansfield. This detention was based upon an eyewitness to the incident advising the Mansfield Police that she saw the juvenile fire the gun. He was taken to the city jail, informed of his rights, and interrogated by several members of the police force. After denying any involvement, Raymond was released some time after 4:00 P.M. and he returned home to his mother.

At this time the Mansfield Police Department had complied with the provisions of LSA-R.S. 13:1577, in connection with their investigation of the burglary charge and the firearm charge, and returned the accused juvenile to his mother as mandated by the statute, since there was no reason it was impractical or inadvisable to do so. Although it appears that the investigation of these two criminal violations had proceeded to a point where the Mansfield Police Department had adequate information to justify their filing a petition with the juvenile court seeking to have the minor Campbell adjudicated a delinquent, they did not do so.

Apparently dissatisfied with the boy’s failure to earlier confess to the two charges, the Mansfield Police Department sent five members of the force to Raymond’s home at 9 P.M. on the same evening where they again took him into custody and returned him to the police station. Raymond was informed of his rights, although there was no indication- whether or not he understood them.

Raymond’s mother arrived at the station shortly after Raymond arrived. In the presence of his mother Raymond was subjected to intensive interrogation for about 20 minutes, conducted simultaneously by five members of the police department. During this period Raymond denied involvement in either the firearm charge or the burglary.

The interrogating officers, becoming dissatisfied with the lack of results from the interrogation, and suspecting Raymond would be more likely to confess out of the presence of his mother, asked Raymond’s mother to leave the room. Although somewhat ambiguous about surrounding events, the police testified that after his mother had been gone from the room about 30 minutes, Raymond admitted both the firearm charge and the burglary.

Raymond was then placed in jail, and remained there about 64 hours. This was in violation of the mandate of LSA-R.S. 13:1577, as there had been no change in circumstances which would indicate Raymond’s appearance at a court hearing would be unlikely, and thus justify his incarceration. It is significant that Raymond had been voluntarily released to his mother a few hours earlier on the firearm charge, and his mother had posted a bond on the burglary charge 30 days earlier and obtained his custody.

Raymond was released to the juvenile probation officer about 3 P.M. on Monday afternoon. The officer took Raymond to an office in the courthouse and talked with him about the burglary. After a discussion, Raymond wrote out a confession to the December burglary of Nabors Oil Company. Neither Raymond’s parents nor any other advisor was present during this time. Additionally, Raymond had not been allowed to speak to his parents since Friday night when he was placed in jail, nor had he ever obtained legal counsel. After writing the confession, Raymond was released to his parents.

The law is clear that a juvenile proceeding is not civil or criminal, but is sui generis. In Re Estate In Interest of Curley, 287 So.2d 558 (La.App., 1st Cir. 1973). Juvenile proceedings are not criminal proceedings and do not involve convictions but rather adjudications of delinquency. In Re State In Interest of Taylor, 255 So.2d 361 (La.App., 1st Cir. 1971). However, a juvenile court delinquency proceeding is required by the due process clause of the Fourteenth Amendment to measure up to the essentials of due process and fair treatment. The juvenile and his parents or guardian must receive constitutionally adequate notice of the hearing, must be informed of the right to counsel, and must be informed of the privilege against self incrimination. Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). A confession by a juvenile is likewise required to be voluntary, and not to have been extracted by methods in violation of the due process requirements of the Fourteenth Amendment. Haley v. State of Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948).

The State of Louisiana has imposed additional requirements on juvenile proceedings. See LSA-R.S. 13:1561 et seq., especially LSA-R.S. 13:1577, quoted in the majority opinion. A reading of the cases interpreting R.S. 13:1577, especially In Re Garland, 160 So.2d 340 (La.App., 4th Cir. 1964), In Re White, 160 So.2d 344 (La.App., 4th Cir. 1964) and In Re State In Interest of Wesley, 285 So.2d 308 (La.App., 4th Cir. 1973), indicate there is a strong presumption against the voluntariness of a confession given by a juvenile while out of the presence of his parents or counsel. This presumption is additionally supported by the paternalistic concept of juvenile proceedings. Although State v. Melanson, 259 So.2d 609 (La.App., 4th Cir. 1972) holds to the contrary, this decision has been strongly criticized by the same court in State, In Interest of Holifield, 319 So.2d 471 (La.App., 4th Cir. 1975). Also see Gallegos v. State of Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962).

The situation presented in this case is exactly the type of situation at which the statute and the jurisprudence are aimed. After the police take a juvenile into custody late one evening, some 30 days after his initial arrest, interrogate him out of his parents’ presence, and hold him incommunicado for 64 hours in the city jail, how can it be said a written “confession” given to a juvenile officer immediately prior to the juvenile’s release is voluntary? This written confession should have been suppressed.

The majority recognizes the verbal confession given to the officers after they deliberately removed the boy’s mother from the interrogation room is involuntary. Its admission into evidence alone demands reversal of the adjudication of delinquency.

In State In Interest of Simon, 295 So.2d 473 (La.App., 3d Cir. 1974), the court stated:

“We believe it to be reversible error for a juvenile court to receive . . . [inadmissible] hearsay evidence, opinions, and recommendations prior to making an adjudication. In re State In the Interest of Elliott, 206 So.2d 802 (La.App., 2d Cir. 1968); Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).”

See also State In Interest of Simmons, 299 So.2d 906 (La.App., 3d Cir. 1974); State In Interest of Prestridge, 323 So.2d 868 (La.App., 2d Cir. 1975).

If introduction of inadmissible hearsay mandates reversal, surely the introduction of a constitutionally infirm oral confession can do no less.

Finally, those articles of the Louisiana Code of Criminal Procedure upon which the majority rely, especially C.Cr.P. art. 921, lend no support to their decision, since the provisions of the Code of Criminal Procedure are inapplicable to juvenile proceedings. State In Interest of Braswell, 294 So.2d 896 (La.App., 2d Cir. 1974); In Re State In Interest of Tyler, 262 So.2d 815 (La.App., 4th Cir. 1972); In Re State In Interest of Williams, 267 So.2d 918 (La.App., 4th Cir. 1972).

I think the judgment of the trial court should be reversed. 
      
      . R.S. 13:1577
      A. Whenever a child is taken into custody, unless it is impracticable or inadvisable or has been otherwise ordered by the court, he shall be released to the care of a parent, tutor or other custodian, upon the promise of such parent, tutor or custodian to bring the child to the court at the time fixed. The court may require a bond from such person for the appearance of the child; and upon the failure of such person to produce the child when directed to do so, the court may, in addition to declaring the bond forfeited, punish that person as in case of contempt. If not so released such child shall be taken immediately to the court or to the place of detention designated by the court or probation officer. Any police officer, sheriff, probation officer, or other peace officer violating any of the terms of this section may be judged guilty of contributing to the act or condition which would bring a child within the provision of this chapter. Pending further disposition of the case, the child may be released to the care of a parent, tutor, agency or other person appointed by the court, or be detained in such place as shall be designated by the court or probation officer subject to further order.
     
      
      . B. Nothing in this chapter shall be construed as forbidding any peace officer from immediately taking into custody any child who is found violating any law or ordinance, or whose surroundings are such as to endanger his welfare. In every case the officer taking into custody any child for detention shall immediately and in any event within twenty-four hours, report the fact to the court or probation officer and the case shall then be proceeded with as provided by law.
      C. Except as hereinafter provided, no child shall be confined in any police station, prison or jail, or be transported or detained in association with criminal, vicious or dissolute persons. A child fifteen years of age or older may be placed in a jail or other place of detention for adults, but in a room or ward entirely separate from adults.
     
      
      . Cases such as State v. Whatley, 320 So.2d 123 (La.1975) and State v. Ghoram, 328 So.2d 91 (La.1976) are easily distinguishable since, although they involve juveniles, they are not juvenile proceedings but are criminal proceedings and not within the purview of LSA-R.S. 13:1571.
     