Opinion
44097.
SUBMITTED JANUARY 8, 1969.
DECIDED JANUARY 27, 1969.
Burglary. Chatham Superior Court. Before Judge Harrison.
Kravitch Hendrix, Aaron Kravitch, for appellant.
Andrew J. Ryan, Jr., Solicitor General, Andrew J. Ryan, III, for appellee.
Where due process and fair trial standards are otherwise met, it is not cause for new trial that the confession of the 16-year-old defendant to various felony offenses was admitted in evidence, where the defendant both orally and in writing waived the right to counsel during interrogation, never attempted to withdraw the waiver, and made no showing that the refusal of counsel at certain pre-trial investigative interrogations was due to any lack of understanding on his part of his rights or of the issues involved.
SUBMITTED JANUARY 8, 1969 — DECIDED JANUARY 27, 1969.
The appellant and other juveniles were jointly tried without a jury on ten indictments charging burglary, attempted burglary and larceny of an automobile. In most of the cases this defendant was found guilty based on proof of the commission of the crime charged (usually a breaking and entering where items of small value such as beer, candy, cigarettes and petty cash were taken) plus his confession of involvement. In one case an automobile was stolen and recovered some quarter of a mile distant; in another the defendants stated that they had tried to break into a safe but had failed. In all cases the appellant's written confession was introduced in evidence, signed by him, and containing the following language: "I, Henry Lee Jones . . . make the following statement freely and voluntarily after being advised of my rights and waiving right to attorney being present." A city police detective further testified: "We advised him the Constitution of the United States and the State of Georgia guarantees you certain rights as follows: you are not required to answer any questions, you have the right to remain silent, anything you do say can and will be used against you in a court of law, you have the right to have an attorney present for advice when a statement is given, or talk to an attorney before we question you. Q. After having advised them of their rights, did you also advise them that if they could not afford an attorney the court would appoint them one? A. That's correct, sir. . . Q. You think he understood what you asked him? A. I am sure he did. Q. And you told him about his constitutional rights — you think he understands what they are — understood at that time? A. Yes, sir."
Jones, then 16 years of age, was arrested about 3:30 on the morning of November 27, 1967, was first questioned at 9:10 that morning, and signed the statement about 2:30 p. m. on November 28. He was represented at the trial by counsel, who objected to the confessions being introduced in evidence on the ground that the waiver of counsel by a minor was ineffective. It does not appear when counsel entered the case, whether he was appointed by the court or hired by the defendants or on their behalf. The defense offered no evidence and the defendants elected not to make statements. The overruling of the motion for new trial is enumerated as error.
The evidence before us demands a finding that this defendant was 16 years old, that the confession was voluntary, that he fully understood he was entitled to counsel while being interrogated, that he knowingly and with full understanding of his rights consented to examination in the absence of counsel, and that he has at no time since signified any desire to withdraw the waiver of counsel made prior to the confession. Our path is therefore somewhat clearer than it might have been, for we are called on to decide no more than whether, as a matter of law, a defendant under the age of 21 years with full understanding of his rights and who does not wish to have an attorney present must nevertheless be provided with one before questioning can proceed. We know of no court which has gone this far. It may be begging the question to make a distinction between cases in which a minor, having waived his right to counsel later seeks to withdraw the waiver, and a case such as this which merely contends that no waiver is possible. In Georgia, a minor is generally under a disability to contract, but the contract is not ipso facto void and the option to disaffirm is personal to him. Code Ann. § 20-201; Hood v. Duren, 33 Ga. App. 203 (1) ( 125 S.E. 787). See also Nieves v. United States, 280 F. Supp. 994, 1003, in which the standards as to waiver by an infant were equated with those applicable to an adult. The basic test of due process is nevertheless conditioned by many circumstances, one of them being the "significant penalty" test (see Winters v. Beck, 281 F. Supp. 793, 800), one being the "full understanding" test (see Strickland v. State, 199 Ga. 792 ( 35 S.E.2d 463)), and others being the age and intelligence level of the defendant, whether or not this is a first offense, his literacy, education and experience, what defenses might have been available to him except for the waiver, any evidence of pressure by the court, its officers, his family, etc., and evidence of undue speed in disposing of the case. An excellent discussion of these factors in regard to waiver of right to counsel by minors will be found in 71 ALR2d Anno., p. 1160 et seq. Nothing therein suggests that the right to counsel cannot be waived, and In Re Gault, 387 U.S. 1 ( 87 SC 1428, 18 L.Ed.2d 527), which is primarily relied upon by the appellant and which deals at length with the right to counsel (but not its possible waiver) in a juvenile court proceeding, centers its attack by saying: "The essential difference between Gerald's [Gault's] case and a normal criminal case is that safeguards available to adults were discarded in Gerald's case." P. 29. Where the defendant in Georgia is over 14 years he is capax doli. Code § 26-301. While our juvenile court jurisdiction embraces all minors under the age of 17 ( Code Ann. § 24-2408), it will be noted both that this cannot deprive the superior courts of this State of their Constitutional felony jurisdiction ( Whitman v. State, 96 Ga. App. 730 ( 101 S.E.2d 621)) and that this defendant was in fact 17 years of age when brought to trial, although 16 at the time the waiver of counsel during interrogation was executed. The State established Prima facie that the waivers, both oral and written, were made intelligently and with full realization of the defendant's rights, and there is certainly a burden upon the defendant at this point to come forward with some evidence to the contrary if he wished to contend that the waiver is void for any reason. Infancy alone is not sufficient under the standards laid down by Gault.
Judgment affirmed. Bell, P. J., and Eberhardt, J., concur.