# Petition — Louisiana v. Dino

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1802%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 439 U.S. 1047

## Text

Supreme Court, U. S,
FILED
Sep £7@ 1978
IN THE | MI@HAML RODAK, JR., CLERK
Supreme Court of the United States mail

OCTOBER TERM, 1978
No. " 8 ss * 3 o

STATE OF LOUISIANA
IN THE INTEREST OF

ANDREW LEONARD DINO,
STATE OF LOUISIANA,
Petitioners,
versus —_

ANDREW LEONARD DINO,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF LOUISIANA

WILLIAM GUSTE
ATTORNEY GENERAL
STATE OF LOUISIANA

JOHN A. RICHARDSON
DISTRICT ATTORNEY
PARISH OF CADDO
STATE OF LOUISIANA

ANDREW B. GALLAGHER
LEGAL OFFICER OF THE
JUVENILE COURT OF
PARISH OF CADDO

ABBOTT J. REEVES

ASSISTANT DISTRICT ATTORNEY
RESEARCH AND APPEALS

419 DERBIGNY STREET

GRETNA, LOUISIANA 70053
TELEPHONE: (504) 367-1212

ATTORNEYS FOR PETITIONERS

SCOFIELDS’ QUALITY PRINTERS. P.O. BOX 53096.N.0.LA 70183 - 504/822-1614

TABLE OF CONTENTS

Page
I a 9s aC CR aa 1
ee Ce canes couletwiianecncwese< ss 2
CONSTITUTIONAL AND STATUTORY
pe Se ot Be FL): 5 Sr 2
Se EY UO OED oc cec cc kee cescccceses 3
I. Whether a confession by 13-year-old
boy to killing a 9-year-old girl was
made voluntarily to police
II. Whether both suspect 13-year-old boy
and his informed parents knowingly
and intelligently waived juvenile’s
right to counsel and privilege against
self-incrimination.
III. Whether a public trial is required for
juveniles under Due Process Clause of
the Fourteenth Amendment, United
States Constitution and LSA-RS.
13:1579B.
SLA Teme) OF TH CAGE ooo. c ccc ceccecee 3
SUMMARY OF ARGUMENT ...................... 8
PREAMBLE TO ARGUMENT .................... 14
ARGUMENT (REASONS FOR GRANTING
I US ONG EA GS beds ba acs ence 6eed6 sc eec's 18
ee Neen Aviad ads bcdkcdecaeces 23
CERTIFICATE OF SERVICE .................... 27

EEO ees

ii
TABLE OF CONTENTS (Continued)

Page
APPENDIX

Appendix 1 — Excerpt from Ruling on Mo-
tion to Suppress Dino’s Confession by
Juvenile Judge. (Dated November 10,
gs ee eee een Pe re ere Pre Pee ee ee ee ee la

Appendix 2 — Opinion of Louisiana State
Supreme Court (Dated May 8, 1978,
Rehearing Denied June 15, 1978). State of
Louisiana in the Interest of Andrew
Leonard Dino, 359 So.2d 586 ..........5- esses 8a

Appendix 3 — Reprint of LSA-R.S. 13:1579
B, pertaining to Juvenile Hearings and
the exclusion of the general public (as
Amended Louisiana Acts 1977, No. 535,

GE o640 Chad) teed Raed Gree heehee be See cteee 59a
TABLE OF AUTHORITIES
Cases:
BECKWITH vs. UNITED STATES, 425 U.S.
re Ce tL Conta ine eh prin bach: 64k 08d 808): 16
COMMONWEALTH vs. ANDERSON, (Pa.
EEE 6 ocak cad weksievate buses eees ees 16
COTTON vs. UNITED STATES, 446 F.2d 107,
GT Sica P ae ce Ub ewEawddceeecss Ue ees 25
ESCOBEDO vs. STATE OF ILLINOIS, 378
U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 ........... 24
IN RE GAULT, 387 U.S. 1, 87 S.Ct. 1428, 18
Cg REE eye eer 9,14,21

JAMES vs. UNITED STATES, 418 F.2d 1150
Sy Cy MED: cee ceed rhe cvews si beeeererdevenes 24

iii
TABLE OF AUTHORITIES (Continued)
Page
LITTLE vs. STATE OF ARKANSAS, (23 Cr.L.
CN EE: Se es ee re ee 14,15
McBRIDE vs. JACOBS, 247 F.2d 595, 596
Pe Pac Sadak RNG ROk Pan Ae Sa ERUAAL Oe cheeses 15

McKEIVER vs. PENNSYLVANIA, 403 U.S.
528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971) ....14,23,25

McLEMORE vs. CUBLEY, 569 F.2d 940 (5th

eas cic oe dhs vE Uda dade uay 6 wk rho 13,21
MIRANDA vs. STATE OF ARIZONA, 384

IC I abi a ee rn ee as a 16
OREGON vs. MATHIASON, 429 U.S. 492, 97

OS. FEL, Be Tite FOO CABNT occ cvcccccscevceds 16

PEOPLE vs. LARA, (1967), 67 Cal. 2d 365, 389,
62 Cal. Rptr. 586, 603, 432 P.2d 202, 219, cer-
tiorari denied, 392 U.S. 945, 88 S.Ct. 2303, 20
SNE Go Re oho e racens su kbe SebeMaande reverie 11

PEOPLE vs. STEPHEN J. B., (1969), 23 N.Y.2d
611, 616, 617, 298 N.Y.S.2d 489, 495, 246

EE CS iw aniceWagsia seuss cane es ness 6 ds 12
RILEY vs. STATE OF ILLINOIS, —— U.S.

—— (23 Cr.L. 4037) (April 24, 1978) ............. 15
RIVERS vs. UNITED STATES, 400 F.2d 935,

NN IS I Gakisid's wis naive ib hare sds 0,0'9'9 400 21
STATE vs. HOGAN, (1973), 297 Minn. 430, 440,

Py EE Upcberewareneetssesnseecceas 11
STATE OF LOUISIANA IN THE INTEREST

OF DINO, 359 So.2d 586 at 599 .............. 2,23,25

iv
TABLE OF AUTHORITIES (Continued)

Page
UNITED STATES vs. BARFIELD, 507 F.2d 53,

57 (5th Cir.) cert. den. 421 U.S. 950, 95 S.Ct.
2006, 66 TUG BGG: CORTE 6.000 osteo tons tiaceves 21

UNITED STATES vs. HILLIKER, 436 F.2d 101
(9th Cir. 1970), cert. den. 401 U.S. 958, 91S.Ct.

987, 28 L.Ed.2d 242 (1971) .......cceeeeseeevveeves 21
UNITED STATES vs. INDIAN BOX X, 565

F.2d G65 (Sth Cir. 1976) ..nccccccceccccsscesvoecs 21
UNITED STATES vs. MILLER, 453 F.2d 634,

GSS COG CEP. BOTRD ..o ccncncccssdvctvcocdsasecocees 20
UNITED STATES vs. STATE OF NEW

JERSEY, 323 F.2d 146, 148 (3d Cir. 1963) ........ 19

WEST vs. UNITED STATES, 399 F.2d 467, (Sth
Cir. 1968), cert. den. 393 U.S. 1102, 89 S.Ct.

903, 21 L.Ed.2d 795 (1969) ............000- 9,13,16,22
Other Authorities:
UNITED STATES CONSTITUTION

ig sy Re en en ny 2

SEA Tee PENNIES | 6s vnccesdcccestpavbenn’ 2,23

FOURTEENTH AMENDMENT .............. 2,3,23
BD We TR BORD okie cel bc ceicnccccccutscateahet 2
LSA-CONSTITUTION, ART. 1, SEC. 16 .......... 23
SLs SU ROTE OD vicin ns vadnaceadtacen 2,3,13,23,25,26
ORs NE edn s'v54 uke bs 0:66 bwireeencneeee 8

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1978

No.

STATE OF LOUISIANA
IN THE INTEREST OF
ANDREW LEONARD DINO

STATE OF LOUISIANA,
Petitioners,

versus

ANDREW LEONARD DINO,
Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF LOUISIANA

MAY IT PLEASE THE COURT:

Petitioners, the State of Louisiana, pray that a writ
of certiorari issue to review the judgment of the
Supreme Court of Louisiana entered on May 8, 1978,
rehearing denied June 15, 1978.

CITATION TO OPINIONS BELOW

The opinion of the Supreme Court of Louisiana
vacating the orders of the juvenile court which had de-

nied the juvenile’s motion to suppress his confession
and motion for a public trial and affirmed the
juvenile’s right totrial by jury is printed in the Appen-
dix hereto and is reported at 359 So.2d 586.

JURISDICTION

The judgment of the Supreme Court of Louisiana,
printed in the Appendix hereto, was entered on May 8,
1978, rehearing denied June 15, 1975. The Supreme
Court of Louisiana stayed its mandate for 90 days on
June 15, 1978. On September 19, 1978, after timely
application made on September 12, 1978, Mr. Justice
Powell granted the petitioners, the State of Louisiana,
an extension of time in which to file its application for
petition for a writ of certiorari until September 27,
1978.

The jurisdiction of this Court is invoked under 28
USC Section 1254 (1).

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

The constitutional provisions involved are the self-
incrimination and due process clauses of the Fifth and
Fourteenth Amendment to the United States Constitu-
tion and the right to counsel clause of the Sixth
Amendment to the United States Constitution. See
also, the Louisiana Statute 13:1579 B, providing for the
hearing of children’s cases to the exclusion of the
general public.

3
QUESTIONS PRESENTED

I. Whether a confession by 13-year-old boy
to killing a 9-year-old girl was made
voluntarily to police.

II. Whether both suspect 13-year-old boy
and his informed parents knowingly and
intelligently waived juvenile’s right to
counsel and privilege against self-
incrimination.

III. Whether a public trial is required for
juveniles under Due Process Clause of
the Fourteenth Amendment, United
States Constitution and LSA-RS.
13:1579B.

STATEMENT OF THE CASE

On June 26, 1977 at approximately 7:00 p.m., Cynthia
Elizabeth Tew, white female, age 9, was found severe-
ly beaten about the head in the woods some fifty (50)
yards from her home at 2921 Hoyte Drive, in
Shreveport, Louisiana. She was found by an Andrew
Dino, a neighbor, age 13, white male. After a lengthy
search of the neighborhood by the parents and
neighbors, Cynthia was taken to the hospital and died
shortly thereafter from severe head wounds without
regaining consciousness.

Subsequent investigation revealed that prior to her
being missed, Cynthia Tew had been playing with
another boy, Steve Hill, who lives across the street and

4

Andrew Dino (who is the next door neighbor at 2925
Hoyte Drive). These were the people with whom she
was last seen.

The murder scene was approximately 40 to 50 yards
behind both the Dino and Tew residences. A piece of
yellow ski rope with black ski rope tied to the top of it
was found at the scene. Indications were that the girl
had left her yard and gone to the woods. There were no
signs on the body, clothing or in the physical area to
indicate the girl had been assaulted elsewhere and
dragged or forced to go to that area. The piece of rope
was identified by Steve Hill, white male, 9 years, who
lives across the street from the Tew and Dino
residences, as being a piece of the rope that had been
played with by the three children during their
backyard period of time.

Numerous people in the neighborhood and
surrounding area were interviewed but, it being a
quiet Sunday afternoon, no one had seen anybody run
from the woods or go into the woods.

Investigation further revealed that Cynthia Tew had
been too scared to go into the woods unless it would be
with someone she knew and trusted, as she was afraid
of snakes and bugs and other things that could be
found in the woods. Her parents had cauticned her on
numerous occasions never to go in a drainage ditch
which runs parallel to the 2900 block of Hoyte Drive
and backs into the woods, or go into the woods.

During the investigation on July 8, 1977, Andy Dino,
at the State’s request, was brought to the detective of-

fice by his parents, Mr. and Mrs. J. L. Dino, where a
recorded statement was obtained. Details given by
Andy during that statement, conflicted with inter-
views with other people involved, being his parents,
the Tews, and Steve Hill. The possibility of a poly-
graph was presented to the Dinos and they in turn, at
first agreed and an appointment was made and, at the
advice of their family attorney, finally declined to put
the boy on a polygraph test.

Later in the investigation, on August 1, 1977, the
father, J. L. Dino, was requested to come to the Internal
Affairs Division and gave a recorded statement as to
his knowledge of the offense in that he had seen the
scene of the crime and helped carry the murdered child
from the woods. At this time he also brought Mrs.
Mary Dino and son, Andrew Dino to the Internal Af-
fairs Division with him. A recorded statement was
made by J. L. Dino, voluntarily. It was classified as an
informational statement. After this statement was
made, police talked with Mr. Dino regarding his son
and told him that there were certain discrepancies in
the boy’s story and his timing that would have to be
checked out and they requested his assistance. Mr.
Dino stated at that time that if his son wanted to take a
polygraph test that he and his mother would not stand
in the way, in order to assist the Shreveport Police
Department in this investigation. The parents did,
however, request that someone talk to Andy alone and
explain to him what the police wanted and why they
wanted it, so the boy would not be afraid. A detective
conducted an interview with Andy Dino on August 1,
1977, alone, in the Internal Affairs Office, explained to
him about the discrepancies in the story and that the

police would like for him to get on a polygraph to
possibly clarify any doubts they had. The boy agreed
and he was told by Detective Brann that at a later date
when the polygraph could be set up, he would be noti-
fied in plenty of time and to make sure that the ap-
pointment would not conflict with scheduled events he
might have. There was no further contact with the
Dinos until August 2, 1977 at approximately 3:30 to
3:45 in the afternoon, at which time Mary Dino (mother
of Andrew) called the Internal Affairs Division and re-
quested the police to have a detective call her right
away, “It was important.”’ Detective Morgan did call
Mary Dino at her residence, at which time she stated
that Andy had awakened in a nightmare, screaming
that he was in the woods with Cindy on the day of the
offense and that something had scared him and he ran,
leaving her in the woods. She asked for police advice
and she was advised that she should bring Andy tothe
Internal Affairs Division to be interviewed again by
Detectives Brann and Morgan. Mrs. Dino requested
that Detective Brann interview Andy alone as Andy
knew him and trusted him and she felt that he would be
open with him. Chief Lanigan was notified of the
events and he assisted in the interview of Andy Dino.

After first being advised of his Miranda warnings,
Andy Dino told the same basic story as he had told his
mother in that he had been in the woods and someone
dressed in blue came out of the bushes and attacked
Cindy and he was scared and ran. After this story,the
police told Andy that they had reason to believe that
there was more to it than that and would he tell the
story again, at which point the young man broke down
crying and stated he just didn’t want to hurt his

7

parents any more and at this point he proceeded to
give the details of how he walked Cindy back into the
woods after first obtaining a claw-type hammer from
his residence and struck her some seven (7) to eight (8)
times as best he could recollect. After the assault he
returned the hammer to its place in the rabbit hutch in
his backyard and went into the house, and this was the
end of his involvement until the search was begun.
After this statement was made by Andy, Chief
Lanigan went and advised the mother, who was in the
next office of this division (Internal Affairs), what
Andy had stated. At this point she requested to be with
Andy and was allowed to do so. She was notified that
Andy would have to be under arrest and taken through
the juvenile court process.

Andy, in the presence of a detective and Chief
Lanigan, told his mother again how he killed Cindy
Tew and why he did it, stating that a year ago during
an argument with the neighbors, David Tew had
threatened to kill Joe Dino, Andy’s father. Andy said
this had been on his mind ever since it happened,
approximately a year ago and he wanted to hurt “Un-
cle David,” as he called David Tew and the only way he
knew of to do it was to go through Cindy, to hurt the
man, and this was the reason he had killed her. After a
short period of time, Mr. Joe Dino arrived at the Inter-
nal Affairs Division and was advised also of what had
happened and statements made by Andy, and he was
allowed to be with Mary Dino and Andrew Dino.
Again, in the presence of his father, Andy repeated
why he had killed young Cynthia Tew.

At this point, Andy Dino was charged with the
homicide of Cynthia Tew and transferred to the deten-
tion home.

On August 3, 1977, a petition was filed in the Caddo
Parish Juvenile Court seeking to have thirteen-year-
old Andrew Leonard Dino, adjudicated a delinquent
based on the allegation that he committed the first
degree murder of Cynthia Tew on June 26, 1977 in
violation of LSA-R.S. 14:30.

Prior to the adjudicatory hearing Dino filed a motion
to suppress an inculpatory statement given to the
Shreveport police on the ground that it was obtained
in violation of his constitutional rights. Following a
five day hearing, the juvenile court denied the motion
to suppress. The juvenile court also denied Dino’s mo-
tion for a trial by jury and his motion for a public trial.

SUMMARY OF ARGUMENT

The Supreme Court of Louisiana erred by vacating
the Juvenile Court’s denial of the Motion to Suppress
thirteen-year-old Andrew Dino’s confession that he
took a hammer and beat in the skull of nine-year-old
Cynthia Tew. After a full evidentiary hearing, the
Juvenile Court judge was satisfied the parents and the
suspect youth had understood his rights and that they
were properly and timely explained to them aiid that
the inculpatory statement was made knowingly and
intelligently with full voluntary waiver of right to
counsel being present. Further, the judge found the
parents to be cooperative and fully informed of conse-
quences of the police investigation. Even if Mrs. Dino

was not as informed as her husband, a third repeat of
the confession with Mr. Dino the father, present took
place.

The view that the guidelines met by the Juvenile
Judge in the instant case has support in numerous
United States Circuit Courts of Appeal and a substan-
tial approval in United States District Courts and
State Supreme Courts throughout the country. That is,
employing the ‘totality of circumstances” test similar
to that articulated in West vs. United States, 399 F.2d
467 (5th Cir. 1968) cert. den. 393 U.S. 1102, 89 S.Ct. 903,
21 L.Ed.2d 795 (1969):

“** * 1) age of the accused; 2) education of the
accused; 3) knowledge of the accused as to both
the substance of the charge, if any has been
filed, and the nature of his rights to consult
with an attorney and remain silent; 4) whether
the accused is held incommunicado or allowed
to consult with relatives, friends or an at-
torney; 5) whether the accused was in-
terrogated before or after formal charges had
been filed; 6) methods used in interrogation; 7)
length of interrogations; 8) whether vel non
the accused refused to voluntarily give
statements on prior occasions; and 9) whether
the accused has repudiated an extra judicial
statement at a later date.” 399 F.2d 467, 469.

This Court did not hold, in In re Gault, 387 U.S. 1, 55,
87 S.Ct. 1428, 1458, 18 L.Ed.2d 527 (1967) that the pres-
ence of counsel or parents the sine qua non to a valid
confession nor that waiver of the right to silence is im-

10

possible. Rather, this court recognized that con-
{.ssions of juveniles involve special problems that
may require authorities to use different techniques
from those used in connection with adult confessions
and that require courts to use the “the greatest care” in
assessing the validity of the confession.

The vast majority of state! and federal? courts that
have decided the issue have rejected the per se ap-
proach to juvenile confessions and adopted a totality
of the circumstances test, where the presence of
parents, guardian, or attorney is only one factor to be
considered. As the Minnesota Supreme Court said in

1 Arizona: State vs. Hardy (1971), 107 Ariz. 583, 491 P.2d 17,
overruling State vs. Maloney (1967), 102 Ariz. 495, 433 P.2d 625,
which had created a per se rule against admissibility without prior
notification of parents; California: People vs. Lara (1967), 67 Cal.2d
365, 62 Cal.Rptr. 586, 432 P.2d 202, certiorari denied, 392 U.S. 945, 88
S.Ct. 2303, 20 L.Ed.2d 1407; Connecticut: State vs. Oliver (1970), 160
Conn. 85, 273 A.2d 867, certiorari denied, 402 U.S. 946, 91 S.Ct. 1637,
29 L.Ed.2d 115; Illinois: People vs. Pierre (1969), 114 I1].App.2d 283,
252 N.E.2d 706, certiorari denied, 400 U.S. 854, 91 S.Ct. 71,27 L.Ed.2d
92; Louisiana: State vs. Melanson (La.App.1972), 259 So.2d 609;
Massachusetts: Commonwealth vs. Cain (Mass.1972), 279 N.E.2d
706; Minnesota: State vs. Hogan (1973), 297 Minn. 430, 212 N.W.2d
664; North Carolina: State vs. Dawson (1971), 278 N.C. 351, 180
S.E.2d 140; New York: People vs. Stephen J. B. (1969), 23 N.Y.2d611,
298 N.Y.S.2d 489, 246 N.E.2d 344; New Jersey: State vs. R. W. (1971),
115 N.J.Super. 286, 270 A.2d 709; South Carolina: In re Williams,
217 S.E.2d 719 (1975); Tennessee: Vaughn vs. State (1970), 3 Tenn.
Cr.App. 54, 456 S.W.2d 879; Texas: In re Garcia (Tex. Civ. App.
1969), 443 S.W.2d 594; Wyoming: Mullin vs. State (Wyo. 1973), 505
P.2d 305, certiorari denied, 414 U.S. 940, 94S.Ct. 245, 38 L.Ed.2d 166.

2 United States vs. Miller (4th Cir. 1972), 453 F.2d 634, certiorari
denied, 406 U.S. 923, 92 S.Ct. 1790, 32 L.Ed.2d 123; United States vs.
Hilliker (9th Cir. 1970), 436 F.2d 101, certiorari denied, 401 U.S. 958,
91 S.Ct. 987, 28 L.Ed.2d 242; Rivers vs. United States (5th Cir. 1968),
400 F.2d 935; West vs. United States (5th Cir. 1968), 399 F.2d 467, cer-
tiorari denied, 393 U.S. 1102, 89 S.Ct. 903, 21 L.Ed.2d 795. See United
States vs. Fowler (7th Cir. 1973), 476 F.2d 1091 (issue of per se rule
raised but not decided).

11

State vs. Hogan,’ in upholding the first degree murder
conviction of a fifteen-year-old,

“Defendant here makes the. . . argument for
a per se exclusionary rule whenever Miranda
rights are waived and a statement is given by a
juvenile in the absence of a parent or guar-
dian. Although we recognize that the pres-
ence of parents and their guidance during
interrogation of a juvenile is desirable, we re-
ject the absolute rule that every minor is in-
capable and incompetent as a matter of law to
waive his constitutional rights. In deter-
mining whether a juvenile has voluntarily
and intelligently waived his constitutional
rights, parental presence is only one factor to
consider and is not an absolute prerequisite.
We hold that the determination whether a
waiver of rights is voluntarily and intelligent-
ly made by a juvenile is a fact question depen-
dent upon the totality of the circumstances.
The child’s age, maturity, intelligence, educa-
tion, experience, and ability to comprehend
are all factors to be considered in addition to
the presence and competence of his parents
during waiver.”

In People vs. Lara‘ the California Supreme Court
said:

3 (1973), 297 Minn. 430, 440, 212 N.W.2d 664, 671.

4 (1967), 67 Cal.2d 365, 389, 62 Cal.Rptr. 586, 603, 432 P.2d 202, 219,
certiorari denied, 392 U.S. 945, 88 S.Ct. 2303, 20 L.Ed.2d 1407.

12

“.,a minor, even of subnormal mentality,
does not lack the capacity as a matter of law to
make a voluntary confession without the pres-
ence or consent of counsel or other responsi-
ble adult, or to make a knowing and intelligent
waiver of his right to counsel] at trial; ineither
event, the issue is one of fact, to be decided on
the ‘totality of the circumstances’ of each
case.”

Finally, in People vs. Stephen J. B.5 the New York
Court of Appeals said:

“We cannot accept the suggestion that every
minor is as a matter of law incompetent to
waive his constitutional rights to remain
silent and to an attorney unless the waiver is
consented to by a parent or guardian who has
himself been advised of the minor's rights. Of
course, such adult consent is to be desired.
However, whether a minor knowingly and in-
telligently waived these rights is a question of
fact and a mere failure of the police to seek the
additional consent of an adult will not out-
weigh, in any given instance, an evidentially
supported finding that such a waiver was ac-
tually made.”

Additional quotation of authorities is unnecessary.

The State submits that the reasoning of the majority
of the appellate courts in the cases cited above should

; ot’ 23 N.Y.2d 611, 616, 617, 298 N.Y.S.2d 489, 495, 246 N.E.2d
44, 348.

13

be persuasive. The receipt in evidence of a confession
of a juvenile must be considered under the prevailing
test of the totality of the circumstances with the
absence of a parent or guardian being one factor to be
considered in determining whether the confession
was indeed voluntarily given.

The totality of circumstances in the instant case
shows that Andrew Dino satisfied all these factors to
support a free and voluntary confession. The Supreme
Court of Louisiana erred when it opined its concern
was for the maturity of “most” juveniles and did not
direct itself specifically to Andrew Dino, invoking
most inflexible rules regarding parental guidance and
presence of counsel. Cf. McLemore vs. Cubley, 569 F.2d
940 (5th Cir. 1978). While acknowledging the validity
of the waiver and voluntariness of the confession is
determined by the circumstances based on the
Juvenile Judge’s appraisal of the facts, the Supreme
Court of Louisiana then chose not to accord any
weight to the Juvenile Judge’s finding and then
formulated its own rules, adopting a most dogmatic
approach, which categorically would invalidate every
confession of all juveniles regardless of the West vs.
United States, supra, factors, and unless attended and
advised at the time by an adult or attorney having an
interest in the juvenile. Cf. McLemore, supra.

Finally, in regard to the issue of whether there is a
juvenile’s right to public trial, the Supreme Court of
Louisiana has overlooked Louisiana’s own R.S.
13:1579 B and the basic holdings of this Court’s
decisions concerning both juvenile court procedures
and the right to trial by jury, andin so doing have mis-

14

read the constitutional provisions which underlay
this Court's decisions. McKeiver vs. Pennsylvania,
403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971).

PREAMBLE TO ARGUMENT
MAY IT PLEASE THE COURT:

Associate Jvstices of the United States Supreme
Court, Mr. Justice Brennan and Mr. Justice Marshall,
as recently as April 3, 1978 in Little vs. State of Arkan-
sas, (23 Cr.L. 4003) _.__. U.S. —__, dissented on the
denial of a writ application stating they “would grant
certiorari to resolve the question whether, before a
juvenile waives her constitutional rights to remain
silent and consult with an attorney, she is entitled to
competent advice from an adult who does not have
significant conflicts of interest...”

The Associate Justices alert us to the fact,

“The issue presented here is an important one.
In In re Gault, 387 U.S. 1 (1967), this Court
recognized that ‘special problems may arise
with respect to waiver of the (Fifth Amend-
ment) privilege by or on behalf of children’
and that ‘the greatest care must be taken to
assure that... (a child’s confession) was not
the product of ignorance of rights or of adoles-
cent fantasy, fright or despair...”

Here, in the instant case, the police secured one con-
fession; the mother was on hand for a repeat of it, then
the father sat in on a third repeat.

15

Here, the waiver was knowing and intelligent. For
example, see McBride vs. Jacobs, 247 F.2d 595, 596
(1957) wherein as long as there was no conflict of in-
terest between the parent and the child the waiver was
considered knowing and intelligent.

See also, the same Associate Justices asked for fur-
ther review of whether or not a juvenile’s waiver of
rights was valid again in Riley vs. State of Illinois,
—_—. U.S. ____ (23 Cr.L. 4037) (April 24, 1978). In that dis-
sent from the writ application denial the Justices cite
numerous cases wherein juvenile confessions have
been upheld where the juvenile had received adult ad-
vice. This matter is most ripe for reconsideration
where, especially even the United States Supreme
Court Justices appreciate the conflict among State
and Federal Courts on the question.

In the two cases cited above, Little and Riley, the
United States Supreme Court upheld voluntariness of
confessions by juveniles by virtue of writ denials. In
the instant case, inasmuch as there was in fact extend-
ed cooperation (over a six-week period prior to actual
confession) and what interrogation there was, was in
fact a gratuitous statement made after voluntary
visits to the police station in the company of his
mother and/or father, this Court in all probability will
want to consider the Louisiana Supreme Court
holding.

The primary basis for the State’s Application for
Writ of Certiorari lies in the error of the Louisiana
Supreme Court’s ruling regarding the voluntariness
of the defendant’s statement to the police. Admittedly

16

that Court circumvented the United States Supreme
Court holding in Oregon vs. Mathiason, 429U.S. 492, 97
S.Ct. 711, 50 L.Ed.2d 714 (1977), and rather, applies its
own interpretation of the matter adopting “the Miran-
da edicts full blown and unfettered.”” And therein lies
the error of the Louisiana Supreme Court’s reasoning
as applied to the instant set of facts.

Even allowing for the expansion of Miranda, and
even allowing for the interpretation of facts most
beneficial to the accused, under West vs. United States,
399 F.2d 467, 469 (CAS, 1968), cert. den. 393 U.S. 1102, 89
S.Ct. 903, 21 L.Ed.2d 795 (1969) the Court has inter-
preted erroneously in the facts of the matter.

As a matter of fact, contrary to the majority opinion
Dino was allowed to consult with relatives; contrary
to the majority opinion, the interrogation of eight
minutes was of no measurable length; contrary to the
majority opinion, Dino did in fact readily cooperate on
numerous prior occasions. Despite these incidents
which clearly do not indicate coercion by the police,
the Louisiana Supreme Court has chosen to interpret
them asa basis for finding a violation of Miranda upon
the “totality of circumstances test.”

Miranda is not required where there is ‘general
questioning of citizens in the fact-finding process.”
Miranda, supra, 384 U.S. at 477. Alternatively, the
mere fact that the police investigation had focused on
Dino did not require Miranda warnings before police
interviews could begin. Beckwith vs. United States,
425 U.S. 341 (1976), reinforced by Oregon vs.
Mathiason, 429 U.S. 492 (1977). Compare Com-
monwealth vs. Anderson, (Pa. 1978) 23 Cr.L. 2152.

17

Questions Raised In The Dino
Decision As It Now Stands

Does the law require that juveniles must always
receive adult advice before making a confession?

Does this apply to only 13-year-olds or 14-15-16-
year-olds also?

Does the adult consulted, whether parent, other
relative or friend, have to establish “no conflict”

before the police can accept him or her as valid
counselor?

Just how much “knowledge” of criminal justice
must the adult consulted possess to be a valid advisor?

Absent a request from the juvenile to see or consult
with a parent, other relative, friend or lawyer, is the

statement taken or given otherwise invalid for use at
trial?

Are all state-employed personnel to be precluded
from the status or category of “friendly adult?’ Does
the fact an adult is in fact a police officer per se in-

dicate antagonistic interests and police
overreaching?

Dino’s Parents’ Own Cooperativeness Led The
Way For Dino To Volunteer His Statements.

The youth was no more coerced than his parents
who, on repeated occasions, voluntarily — un-
solicited, went to the police with statements of their

18

own. The murder occurred on June 26, 1977. With plen-
ty of time for everyone to “cool off,” on July 8, 1977
Dino gave his first statement to the police. On August
1, 1977 his father gave a statement. On August 2, 1977
Dino and his mother both went to the police station,
voluntarily. It was at this latest date, August 2, 1977
after all the delays, Dino’s witnessing of his
cooperating parents and their encouragement of him
to cooperate that’s in question.

See then, despite the tender age of the youth, he didin
fact have all the advice, warnings and freedom to come
and go, and that only after August 2, 1977 when he
identified the murder weapon, detailed his own
reasons for the killing, and after repeating the confes-
sion three times (once to police, second time with his
mother present and a third time with his father pres-
ent, was he then placed in custody.

ARGUMENT
REASONS FOR GRANTING THE WRIT

I. Whether a confession by 13-year-old boy
to killing a 9-year-old girl was made
voluntarily to police.

Il. Whether both suspect 13-year-old boy and
his informed parents knowingly and in-
telligently waived juvenile’s right to
counsel and privilege against self-
incrimination.

What seems particularly disturbing about the rever-
sal of the Juvenile Judge’s ruling is that, despite the

19

fact the ultimate confession was a result of an un-
solicited telephone call from the boy’s mother that the
youth had something very important to tell the police
and the mother and boy wanted, voluntarily, to talk
with the friendly detective, the Supreme Court of
Louisiana nevertheless calls it “coerced.” It is not
even as though the actual interrogation that produced
the confession took any appreciable length of time —
less than eight minutes at the longest. The facts are
undisputed that from the very initial cry of “little girl
lost” on June 26, 1977, when according to a statement
by Dino’s father, both Dino and his father joined in the
search, all contacts with the police by the Dinos in-
dividually and asa family, were clearly voluntary and
most cooperative. It is not as though, as in United
States vs. State of New Jersey, 323 F.2d 146, 148 (3rd
Cir., 1963) that the police confronted the boy with
results of their investigation and checking out his
story of where he had been and what he had done dur-
ing the critical period. No, rather Mrs. Mary Dino had
voluntarily called the police for an interview, along
with her son, Andrew, who had complained of night-
mares about the killing. Andrew Dino orally con-
fessed after six weeks of conscience, having come to
the police station on his and his mother’s own in-
itiative. His own story was corroborated by locating
and identifying the hammer, the murder weapon, for
the police.

There is no suggestion made that this last interview
with the police, on August 2, 1977, was a novel ex-
perience for either the mother or the boy. The record is
replete with numerous occasions the boy and his
parents had with the police prior to this last con-
fessional.

20

The boy’s sophisticated characterization to the vic-
tim, as the only way he could get back at “Uncle
David,” the fact he didn't want to hurt his parents
anymore, his having found the body originally where
the whole neighborhood had failed earlier, all add up
to an unmistakable, twisted maturity from which
boyish adolescence was long ago and far away. He
may well have had tensions and fears pressing down
on his mind in his realization that the police were
focusing on him and he faced punishment but these
were not multiplied because of adolescence in him. It
was rather because of his awareness of what he had
done, how it was affecting his parents, and the conse-
quences thereof.

The Louisiana Supreme Court would have the boy,
Dino, presumed conclusively to be incapable of waiv-
ing his constitutional rights due to the fact that he was
only 13 years old. Although the age of the individual is
a factor to be taken into account in ascertaining if the
waiver was voluntary, no court has held that age alone
is determinative. United States vs. Miller, 453 F.2d 634,
636 (4th Cir., 1972). The Juvenile Judge had every op-
portunity to personally observe the boy, Dino. The
Judge explicitly noted that the youth understood his
rights and indeed, after a five-day hearing, wherein
the six-week period of cooperation with the boy and
parents and police was revealed, added up to clear-cut
voluntariness. There is nothing to indicate the boy or
his parents were not well informed, and the record
amply supports the observation and conclusion of the
Juvenile Judge.

Notwithstanding police awareness of the Dino fami-
ly having a lawyer, there were no instructions to

21

“keep away” from Dino by the lawyer, nor were the
police required to turn away from the Dino phone call
that urged “It was important,” when the Dino boy and
his mother wanted to talk to the police on August 2,
1977.

As recently as March 20, 1978. the United States
Court of Appeals for the Fifth Circuit, in McLemore, a
minor vs. Cubley, Youth Court Judge, 569 F.2d 940 (5th
Cir. 1978) held that the assistance and advice of
counsel was not a constitutional prerequisite to a
valid waiver of counsel by a juvenile in a juvenile
proceeding. The court there wrote that although In re
Gault, 387 U.S. 1, 87S.Ct. 1428, 18 L.Ed.2d 527 (1967) did
not directly address the issue head on, language in the
Gault opinion strongly indicates that the assistance
and advice of counsel is not a prerequisite to a valid
waiver of counsel. 387 U.S. at 42, 87 S.Ct. at 1451. See
also, United States vs. Barfield, 507 F.2d 53, 57 (5th Cir.)
cert. den. 421 U.S. 950, 95 S.Ct. 1684, 44 L.Ed.2d 105
(1975); Rivers vs. United States, 400 F.2d 935, 942-43
(5th Cir. 1968).

Neither did the police secure the confession without
first giving Miranda warnings. United States vs.
Hilliker, 436 F.2d 101 (9th Cir. 1970), cert. den. 401 U.S.
958, 91 S.Ct. 987, 28 L.Ed.2d 242 (1971). See also United
States vs. Indian Box X, 565 F.2d 585 (9th Cir. 1978).
There is no dispute or allegaticn that the detective who
interviewed the boy was not scrupulously fair and
deliberate in ascertaining that both Dino and his
parents understood the boy’s rights under Miranda.
(The father, in his own statement to the police, clearly
indicated full and complete understanding in this
regard).

See also, all the factors espoused in West vs. United
States, 399 F.2d 467 (5th Cir. 1968) were met satisfac-
torily by the Juvenile Judge in the determination the
juvenile was treated fairly and the waiver of his
privilege against self-incrimination was voluntarily
and knowingly and intelligently made.

1. Age of accused: Dino was found to be a “nor-
mal” thirteen-year-old.

2. Education: In proper grade for his age.

3. Knowledge of accused as to the substance of
charge and nature of his rights to consult with an at-
torney and remain silent: Dino had come unsolicited,
voluntarily to the police station after his mother made
an appointment, on her own initiative, with Andrew's
consent.

4. Whether accused was held incommunicado: No
allegation was ever made in this regard.

5. Whether he was interrogated before or after for-
mal charges had been filed: Before.

6. Methods and length of interrogation: Dino came
to police station on his own and his mother’s own in-
itiative. Within eight minutes, if not less, he confessed
the killing to the police.

7. Whether he repudiated the extrajudicial state-
ment at a later date: No.

23

8. Whether vel non the accused refused to volun-
tarily give statements on prior occasions: Never. He
always cooperated.

III. Whether a public trial is required for
juveniles under Due Process Clause of
the Fourteenth Amendment, United
States Constitution and LSA-RS.
13:1579B.

Chief Justice Joe W. Sanders’ dissent in the instant
case, 359 So.2d 586 at 599, states succinctly what the
State believes to be sufficient reasons for granting the
writ in this regard:

“Since the proceeding is noncriminal, the
public trial requirement of the state and
federal constitutions does not apply. The
public trial provision of the state constitution
(Art. 1, § 16) applies only to a ‘person charged
with a crime.’ The public trial provision of the
United States Constitution (6th Amendment)
applies only to ‘criminal prosecutions.’

“As late as 1971, the United States Supreme
Court pointed out in McKeiver v. Penn-
sylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d
647, that there is no constitutional require-
ment that all the procedures of acriminal trial
be imposed in a juvenile hearing.”

CONCLUSION

Andrew Leonard Dino's statement to the police was
made under the guidance and through the initiative of

24

his own mother and father. It was consistent and un-
hesitatingly made culminating six week’s time period
of off-and-on contacts with police, including his father
giving a statement and arrangements being made
(though subsequently cancelled) for polygraph
testing.

Andrew Leonard Dino never recanted or denied
committing the offense. The hearing on the Motion to
Suppress was extensive. The described cir-
cumstances, especially the mother requesting an ap-
pointment with the police and specifically asking for a
certain police officer so Andrew “would open up,” in-
dicates that he did, knowingly, intelligently, and
voluntarily waive his rights to remain silent and right
to presence of counsel.

A careful examination of the record and the totality
of all the circumstances here, leads to the conclusion
that the statement under attack alternatively, may
have been taken during the investigatory rather than
the accusatory stage of the proceedings and that it was
proper to admit it in evidence. That the police dropped
specific inquiry when the boy and his family aban-
doned the polygraph appointment belies the existence
of the custodial or focused atmosphere that defines the
Miranda rule. James vs. United States, 418 F.2d 1150
(CA.D.C., 1969). (See Escobedo vs. State of Illinois, 378
U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977). The defendant
minor did have the ability to, and ask for, his mother’s
or father’s or counsel's presence, if he wanted it; in fact
he did specifically seek out a certain detective without
seeking his own counsel's advice. The trial judge
found that the defendant was advised of his rights and

25

that any statement he made was made voluntarily,
with understanding of his constitutional rights, and
without any coercion, promises, or threats. These
findings have substantial basis in the record.

The Supreme Court of Louisiana erred in reversing

the Juvenile Court's ruling which admitted the confes-
sion.

Lastly, the Louisiana statute providing that
juvenile delinquency proceedings shall be without in-
trusion of the general public, does not impair any Six-
th Amendment right to trial. Cotton vs. United States,
446 F.2d 107, 110(8th Cir. 1971). In the light of McKeiver
vs. Pennsylvania, 403 U.S. 528, 91S.Ct. 1976, 29 L.Ed.2d
647 (1971), “trial by jury in the juvenile court's ad-
judicative stage is not a constitutional requirement.”
Certainly it is within the purview of the legislature of
the State of Louisiana to legislate R.S. 13:1579 B,
excluding the general public from juvenile hearings.
As Associate Justice Frank Summers of the Loui-

siana Supreme Court wrote in his dissent, 359 So.2d
586 at 601,

“*** Only widespread publicity and morbid
curiosity are prohibited in the interest of the
juvenile. Ali those primarily interested in the
welfare of the juvenile may attend. It is evi-
dent that such a provision is designed for the
protection of the juvenile by these safeguards
limiting attendance, undue publicity and
notoriety are avoided and the child's future is
not blemished or impaired by his juvenile
record.”

The State submits R.S. 13:1579 B does not violate any
federal constitutional guarantees espoused by the
Sixth Amendment to the United States Constitution.

For the reasons stated, it is respectfully submitted
that this petition for a writ of certiorari should be
granted. |

Respectfully submitted,

WILLIAM GUSTE
ATTORNEY GENERAL
STATE OF LOUISIANA

JOHN A. RICHARDSON
DISTRICT ATTORNEY
PARISH OF CADDO
STATE OF LOUISIANA

ANDREW B. GALLAGHER
LEGAL OFFICER OF THE
JUVENILE COURT OF
PARISH OF CADDO

ABBOTT J. REEVES

ASSISTANT DISTRICT
ATTORNEY

RESEARCH AND APPEALS

419 DERBIGNY STREET

GRETNA, LOUISIANA 70053

TELEPHONE:-(504) 367-1212

ATTORNEYS FOR
PETITIONERS

27
CERTIFICATE

I hereby certify three copies of the foregoing Peti-
tion for Writ of Certiorari have been sent to Frederic L.
Miller, Esq., P.O. Box 91, Shreveport, Louisiana 71 161;
Francis M. Gowen, Jr., Esq., 9053 Mansfield Road,
Shreveport, Louisiana, by placing them in the United

States mail, postage prepaid this __ day of
September, 1978.

ABBOTT J. REEVES

la

APPENDIX 1

EXCERPT FROM RULING ON MOTION TO SUP-
PRESS DINO’S CONFESSION BY JUVENILE
JUDGE

(Dated: November 10, 1977)

“* * * the Court, after having considered all
of the evidence before it in this motion to sup-
press, the Court finds that there was no con-
spiracy by the Police Department of the City of
Shreveport nor any members thereof to
violate the constitutional rights of Andrew
Dino, nor to extract from him any statements
or other information in violation of his con-
stitutional rights.

On June 26th, 1977, a report was made by Mr.
Dino, the father of Andy, that a child had been
hurt. This report originally was given to a
Sergeant Sandlin of the Shreveport Police
Department. In response to this information,
Detective T. V. Humphrey arrived at the scene
at approximately 7:15 p.m. and contacted Mr.
Dino. As he drove up, Mr. Dino approached the
car, as Detective Humphrey drove up, and said
that his son Andy had found the girl. About
this time Andy came up and told Detective
Humphrey that he saw the girl was hurt and
started calling for his father. About 8:00 or 8:15
on the same date, as it was just getting dark,
Detective L. R. Jaudon arrived at the scene and
again Andy confirmed that he had found the

2a

girl, whereupon Detective Jaudon joined ina
door-to-door canvass of the area, along with
many other officers of the Shreveport Police
Department. Late that same night Detective
Troy Morgan and Detective Brann arrived at
the Dino residence and requested that Andy
accompany them to the crime scene,
whereupon they were informed by his parents
that he was spending the night with a friend
but they would be glad and they did send and
get Andy for them. And upon arrival Andy did
escort the two detectives to the crime scene
and went over the position of the body at the
time of his discovery and how he happened to
find the child under this clump of bushes or
this fallen tree. On the next day, while the of-
ficers were again at the crime scene, and in the
area, Andy came out into the woods voluntari-
ly and on his own and again volunteered the
information about finding the child. On June
29th a contact was made with Sergeant Lopez
and Detective Brann by Mr. Dino to inform
them that Mr. Tew wished to talk to them. As
the Court recalls this testimony, it turned out
that Mr. Tew had actually wanted to tell the of-
ficers who had killed his daughter. But during
the course of this investigation the Police
Department, members of the Police Depart-
ment, were in the area continuously. There
were casual contacts with the Dino family as
well as many other families within the area,
and this was in the course and scope of its in-
vestigation of this homicide. On or about July
6th or the 7th it was decided that the police

3a

should get a statement from Andy as a poten-
tial witness, as he was the last person to see
the child, that he had found the body, and so the
Dinos were contacted, Mr. and Mrs. Dino, and
the arrangements were made for Andy to give
his statement on the 8th of July at ap-
proximately 4:00 p.m.

All the testimony and the evidence before
the Court is to the effect that at this time no
suspicion was focused on Andy, and the state-
ment was purely for informational purposes.
Even after this statement was given, the
testimony is to the effect that Andy was still
not a suspect.

The Court might point out that even after
this, at the time Mr. Tew came in to the station
to tell who had killed his daughter, and at the
time Mr. Tew named Andy as Cindy’s
assailant, Detective Morgan in disgust walked
out of the room. Some of the reasoning being
that Mr. Tew had already accused two other
boys. Therefore, at this time Mr. Tew was not
taken seriously in his accusations toward
Andy, andI don’t believe anybody in the Police
Department took any of these accusations
toward Andy seriously.

Therefore, the Court finds that the statement
of July 8th, 1977, given by Andrew Leonard
Dino, was given voluntarily and purely and
simply as an informational statement taken
by the police in the ordinary course of its in-

da

vestigation into the death of Cynthia Tew, and
that no rules of due process or fair play were
violated in obtaining this statement from him.
Therefore, this statement is legal and is ad-
missible.

Although, as was stated before, there is no
specific law authorizing motions to suppress,
included in this motion to suppress there is an
effort to suppress an inculpatory or self-
incriminating statement made by Andrew
Dino on August 2nd, 1977.

In Juvenile delinquency proceedings, such
as this, it is required by the due process clause
of the Fourteenth Amendment to measure up
to the essentials of due process and fair treat-
ment, and a confession or an inculpatory
statement made by a juvenile is required to be
voluntary and not to have been extracted in
violation of the due process requirements of
the Fourteenth Amendment. The only
different guides in Juvenile proceedings and
those in adult cases is the totality of the cir-
cumstances surrounding the taking of a state-
ment that bear on the youth of the juvenile, the
long detention prior to the extraction of the
statement, and the failure to have his parents
present or to send and get them if they are not
present.

In deciding this question, the Court will
comment upon a few things concerning Andy
and the conduct of this hearing. Andy Dino has

5a

been referred to continuously throughout
these proceedings by counsel as Little Andy,
and from the Court’s observation of Andy he is
not small for his age, he is an average-size
thirteen or fourteen year old young man. And
from his demeanor during these proceedings
it is apparent that he is very attentive as to
what is going on and appears to comprehend
what is happening before him.

On August 2nd, when Andrew made the in-
culpatory or self-incriminating statement, he
had not been taken into custody at that time.
He had not been in detention. He had not been
subjected to interrogation for a long period of
time. But, to the contrary, had been brought to
the police station by his mother after she had
called to request that Detective Brann talk
with him, and on the suggestion of Detective, I
believe it was Morgan, he was brought to the
station for this purpose or for this interview.

Upon arriving, the mother went into another
office with one detective and Andy went into
the office with Detective Brann and Chief
Lanigan. Detective Brann started the inter-
view with Andy, whereupon the Chief in-
terrupted and explained the necessity for the
reading of Andy his rights, whereupon Detec-
tive Brann obtained a card, a rights card as it is
referred to, and basically this card was recit-
ed to Andy by Detective Brann, and it conclud-
ed with the statement: ‘‘Do you wish to make a
statement and tell how this happened.” And,

6a

according to the evidence, after this statement
was made, Andy responded and made his in-
culpatory or self-incriminating statement.
From this Court’s experience, having had the
responsibility to explain these rights to
juveniles and seeing their reaction in Court,
and testing their ability to understand, itis our
opinion that a juvenile of Andy’s mentality
and his capabilities and his age is well capable
of understanding his rights, with such an ex-
planation having been given him. From this
Court’s experience, it is apparent that most
juveniles of Andy’s age, and even his limited
exposure to the criminal justice system or
Juvenile justice system, knows more about
their constitutional rights than most parents.
Although they are not capable of reciting con-
stitutional provisions or from which section
of the constitution these rights stem, they do
know that they exist, and that they are protect-
ed, and a waiver is necessary before the police
or the courts may proceed.

During the course of these proceedings,
questions were directed to what provision of
the constitution some of these things came
from, or which provision provided for this.
Not many lawyers, unless they are specifical-
ly practicing in the criminal field, could recite
the constitutional provision concerning these
constitutional safeguards.

As stated before, the Court is of the opinion
that Andy is a very alert young man and fully

7a

understands what is going on. This is further
evidenced by Dr. Paul Ware’s testimony, and,
too, by a statement made by Dr. Ware when he
was asked, after having been read the Rights
Card, if Andy could understand it, and he testi-
fied in words somewhat like this: “Not unless
it was explained to him.” When Andy testified
in his own behalf, the same question was
propounded to him, and his testimony was
almost verbatim with that of Dr. Ware, and
having heard this phrase only one time, and in
an unfamiliar surrounding of a courtroom.

The Court is then of the opinion that at this
time, on August 2nd, 1977, an attorney-client
relationship did not exist between Andy nor
his parents with Mr. Gowen, and the presence
of Mr. Gowen at the taking of this statement
was not required. However, if from some
stretch of imagination the contrary could be
concluded, such presence was effectively
waived by Andy and by his parent, his mother,
when they requested the interview be conduct-
ed and went ahead without Mr. Gowen.
Therefore, the inculpatory or self-
incriminating statement taken August 2nd,
1977, at the police station was free and volun-
tary and not in violation of any of these rights
afforded Andrew Leonard Dino by the Fourth,
Fifth, and Sixth, and Fourteenth Amendments
of the Constitution of the State of Louisiana,
nor Article 1, Section 2, and Article 1 of Sec-
tion 13 of the Constitution of the State of
Louisiana.

Next, we will consider the admissibility of
the hammer sought to be suppressed by this
motion. The evidence is to the effect that the
hammer was obtained as a result of a search
authorized by Mrs. Dino, a co-occupant of the
premises, and therefore legal and admissible.
Therefore, the motion to suppress pvghiataaing
and the evidence is admissible...

APPENDIX 2

STATE of Louisiana in the Interest of
Andrew Leonard DINO.

No. 61283.
Supreme Court of Louisiana.
May 8, 1978.
Rehearings Denied June 15, 1978.

Certiorari was granted to review pre-trial rulings of
Juvenile Court on petition seeking to have 13-year-old
boy adjudicated a delinquent based on the allegation
that he committed first-degree murder. The Supreme
Court, Dennis, J., held that: (1) inculpatory statement
given by 13-year-old boy, who was suspect in first-
degree murder prosecution, should have been iv
pressed where State failed to establish that juveni e
knowingly and intelligently waived his rights in mage
of showing that juvenile’s mother was present a

police station during interrogation but State did not
fully advise her of her son’s rights and son did not ac-
tually consult with mother in waiving his rights; (2)'
public trial is among essentials of due process and fair
treatment required during adjudication of charge of
delinquency based upon acts that would constitute a
crime if engaged in by an adult; (3) statute providing
that in all cases of children within jurisdiction of
juvenile court general public shall be excluded from
adjudicatory hearings is unconstitutional insofar as it
prohibits juvenile from electing public trial in ad-
judicatory proceedings based on criminal charges
which would entitle an adult accused to have his trial
conducted in public, and (4) due process guaranty does
not afford juvenile right to jury trial during adjudica-
tion of charge of delinquency based upon acts which
constitute a crime if engaged in by an adult.

Affirmed in part; vacated in part and remanded.

Sanders, C. J., concurred in part and dissented in
part with written reasons in which Marcus, J . COn-
curred.

Summers, J., dissented in part andconcurred in part
and assigned reasons.

Dennis, J., concurred in part and dissented in part
and filed opinion in which Dixon and Calogero, JJ.,
joined and all would grant defendant's application for
rehearing.

Sanders, C. J., and Summers and Marcus, JJ.,-all
would grant the State’s application for rehearing.

10a
DENNIS, Justice.

On August 3, 1977 a petition was filed in the Caddo
Parish Juvenile Court seeking to have thirteen year
old Andrew Leonard Dino, relator, adj udicated a delin-
quent based on the allegation that he committed the
first degree murder of Cynthia Tew on June 26, 1977 in
violation of La.R.S. 14:30. Relator denied the
allegations contained in the petition.

Prior to the adjudicatory hearing relator filed a mo-
tion to suppress an inculpatory statement given to the
Shreveport police on the ground that it was obtained
in violation of his constitutional rights. Following a
five day hearing the juvenile court denied the motion
to suppress. The juvenile court also denied relator's
motion for a trial by jury and his motion for a public

trial.

We granted writs to review the pre-trial rulings of
the juvenile court. State of Louisiana in the Interest of
Dino, 353 So.2d 1334 (La.1978).

Waiver of Rights by a Juvenile

During the late afternoon of June 26, 1977 the ai
of nine year old Cynthia Tew discovered that s e a
missing from home. Several residents in
neighborhood, including relator Andrew Dino, ne i
menced a search for her. Early that evening the re a e
reported that he had found Cynthia, critically injured,
in a wooded area behind the Tew and Dino ste
Cynthia was taken to the hospital and died sho y
thereafter from severe head wounds without regain-

ing consciousness.

lla

The police began an investigation which extended
over a period of about six weeks. Because relator was
the one who discovered Cynthia the police were in fre-
quent contact with him and his parents during the in-
vestigation. However, during the initial Stages of the
investigation the relator was regarded merely as a
potential witness, rather than as a suspect, by the
police.

On July 8, 1977, the relator at the request of the in-
vestigating officers went to the police station with his
parents and gave the policea “witness informational”
statement. On this occasion he did not implicate
himself in the crime. His parents were not present in
the room during the taking of the statement, which
was recorded. Because of discrepancies between An-
drew’s statement and information from other sources,
it was agreed that Andrew should take a polygraph
test to clarify his earlier statement and to eliminate
him as a potential suspect.! One test was cancelled by
Andrew’s father because of the youth’s nervousness.
Another test was scheduled but never performed when
the polygraph examiner went on vacation. .

On August 1, 1977 Andrew’s father gave a witness
statement to the police. Mr. Dino’s account of An-
drew’s activities on the afternoon in question differed
from that of his son. One of the officers testified that
Andrew definitely became a suspect at this time.

On the afternoon of August 2, 1977, Andrew awoke
from a nap and a bad dream. He told his mother he

1 At this point several residents in the neighborhood were con-
sidered by the police as “potential suspects.”

12a

remembered being in the woods with Cynthia, that
something “blue” had come toward them, and that he
ran away leaving Cynthia alone. Mrs. Dino called one
of the officers with whom she had become acquainted
during the investigation and told him what Andrew
had said. She asked the officer to come talk with An-
drew after her husband came home from work.
However, at the insistence of the officer Mrs. Dino
agreed to bring Andrew to police headquarters. The of-
ficer agreed to leave word at her husband's office for
him to join his wife and son at the stationhouse. Mrs.
Dino attempted to call the family attorney to ask for
advice before leaving her house, but he was not in.

Upon arrival at the station Andrew was taken into
an office by the chief of police and one of the inves-
tigating officers. Mrs. Dino was left to wait in a
separate room and was not asked if she wished to be
present while they talked to Andrew. She was not told
that the investigation had focused on Andrew as a
suspect. She was not informed of her son's con-
stitutional rights or given an opportunity to confer
with him about whether he should give a statement
without consulting a lawyer. Because they had not
previously met the chief of police, Mrs. Dino and An-
drew were asked if they objected to his presence dur-
ing the interrogation. No objection was made, and no
other conversation occurred before the interrogation

began.

Apparently, the youth was not told either that he
was free to leave or required to remain during ques-
tioning. According to the record Andrew was in the of-
fice with the chief of police and the other officer for

13a

approximately four to eight minutes. During this
short period of time, the officers testified, Andrew read
and listened to explanations of his constitutional
rights, he waived his rights both orally and in writ-
ing, and he gave them an oral inculpatory statement.
The officers’ testimony was not detailed as to the oral
explanation or the means by which it was determined
that the warnings were fully understood by the thir-
teen year old youth. Contrary to the testimony of the
officers, Andrew testified that they gave no explana-
tion of his rights and that he did not understand what
was on the paper signed by him. At the motion to sup-
press hearing a psychiatrist and a clinica] psy-
chologist testified that Andrew was incapable of
understanding the language contained on the stand-
ard waiver form, but that he could have comprehended
a statement of constitutional] rights phrased in
simpler terms. From our review of the officers’
testimony it appears that the warnings given the
youth were either quoted or paraphrased from a stan-
dard waiver form.

After the statement was given, the police informed
Mrs. Dino that Andrew had confessed to the murder
and asked her to sign the waiver card. She signed it
without reading the warnings. Mr. Dino arrived at the
station shortly after these events transpired. The
youth was not allowed to leave the stationhouse with
his parents but was placed in confinement in the
juvenile detention center.

The constitutional privilege against self-
incrimination and the rights to counsel and to con-
front and cross-examine witnesses are applicable in

14a

the case of juveniles as they are with respect to adult

accuseds.2 Article I, § 13 of the 1974 Louisiana Con-

stitution requires that any person arrested or detained

in connection with the investigation or commission of

any offense must be advised fully of the reason for his

arrest or detention, his right to remain silent, his right
against self-incrimination, his right to the assistance
of counsel and, if indigent, his right to court appoint-

ed counsel. By the adoption of this provision
Louisiana enhanced and incorporated the prophylac-
tic rules of Miranda v. Arizona,® which in essence re-
quire that the state, before it may use a confession at
trial, establish that a defendant was informed of his
right against self-incrimination and to have an at-
torney present at the interrogation; that he fully un-
derstood the consequences of waiving those rights;
and that he did in fact waive those rights voluntarily
and without physical or mental coercion.‘ This protec-
tion must have been given “when the individual [was]
first subjected to police interrogation while in custody
at the station or otherwise deprived of his freedom of
action in any significant way.’

The State raises a threshold issue by contending
that the warnings required by Miranda and Article 1,
§ 13 of our constitution do not come into play in the in-
stant case because the youth was brought to the police
station and placed in an office with his interrogators
through the voluntary action of his own mother.

2 In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
3 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
4 Id.; see, State v. Ned, 326 So.2d 477 (La. 1976).

5 384 U.S. 436, 477, 86 S.Ct. 1602, 1629, 16 L.Ed.2d 694, 725 (1966).

15a

Perhaps in recognition that the circumstances sur-
rounding young Dino rather plainly qualified him asa
person who had been taken into custody or otherwise
deprived of his freedom of action in a significant way,
the State relies primarily upon the Supreme Court’s
decision in Oregon v. Mathiason,* which may to some
extent modify Miranda.’

The State’s arguments must be rejected for several
reasons. First, the precedent relied upon is distin-
guishable on its facts from the circumstances in-
volved in Dino’s interrogation. In Mathiason the Court
held that police were not obliged to administer warn-
ings to an adult parolee who came to the stationhouse
at the request of a policeman to answer questions
about his possible involvement in a recent burglary
under investigation. Heavily emphasizing that
Mathiason voluntarily came to the stationhouse as a
possible suspect and was allowed to leave without
hindrance when the questioning was over, the Court
held that this was not the sort of coercive environment
to which Miranda applies. The ingredients of the in-
stant case are significantly different. The relator
became the primary suspect in the murder investiga-
tion when the police learned of his admission to being
in the woods with the victim before she was attacked.
It cannct be said that young Dino, who was only thir-
teen years old and subject to the legal custody of his
parents, acted voluntarily when he was brought to the
stationhouse by his mother. Nor could one conclude
realistically that he was not deprived of his freedom of

6 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977).
7 429 U.S. 492, 500, 97 S.Ct. 711, 716, 50 L.Ed.2d 714, 722 (1977).

16a

action in a significant way when he was closeted with
two adult policemen in the interrogation room,
without counsel, parents, or friends. Insofar as the rec-
ord reflects, young Dino was not “streetwise” and did
not have any previous experience as a juvenile ac-
cused. The youth was never told that he was free to
leave the police station, and he was placed in confine-
ment immediately after his confession was taken. Sec-
ond, if Mathiason represents a constriction of the
Miranda definition of significant deprivation of
freedom of action, its holding clearly does not govern
our interpretation of Article I, § 13 of the 1974 Loui-
siana Constitution whose framers intended to adopt
the Miranda edicts full-blown and unfettered.’ Finally,
it appears that, in fact, there was an intention by the
convention to go beyond Miranda and to require more
of the State regarding the precise issue now under dis-
cussion. In Article I, § 13 the cautions are triggered
and must be given “when any person has been arrest-
ed or detained in connection with the investigation or
commission of any offense.” The use of “detained” in
addition to “arrested’”’ was intended to prevent a
narrow construction of the latter term.®

It is well settled under Miranda and our state con-
stitution that if a statement is taken without the pres-
ence of an attorney, under circumstances in which the
warnings are required, a heavy burden rests on the
State to demonstrate that the accused knowingly and

8 State of Louisiana Constitutional Convention of 1973 Verbatim
Transcripts, September 1-7, 1973, Vol. XIII, pp. 68-112, Vol. XIV,
pp. 1-51; Hargrave, The Declaration of Rights of the Louisiana
Constitution of 1974, 35 La.L.Rev. 1, 40-48 (1974). See, State v.
Welch, 337 So.2d 1114 (La.1976).

9 Id. See, State v. Segers, 355 So.2d 238 (La. 1978).

17a

intelligently waived his privilege against self-
incrimination and his right to retained or appointed
counsel.!° Since the warnings were required before a
statement could be taken in the instant case, the State
must discharge a heavy burden in order to prove a
valid waiver of his constitutional rights by young
Dino.

This Court has not expressly stated under what cir-
cumstances a juvenile may be deemed to have
knowingly and intelligently waived his privilege
against self-incrimination and his right to retained or
appointed counsel.!! One Louisiana court of appeal?
has taken the position that the age of a person under
interrogation does not necessarily require additional
protections and has employed a “totality of cir-
cumstances” test similar to that articulated in West v.
United States.'3 That test consists of an illustrative
list of factors to be considered in determining whether
a juvenile has knowingly and intelligently waived his
privilege against self-incrimination and his right to
retained or appointed counsel:

“* * * 1) age of the accused; 2) education of the
accused; 3) knowledge of the accused as to both
the substance of the charge, if any has been

10 Miranda v. Arizona, supra; State v. Welch, supra; State v.
Ross, 343 So.2d 722 (La.1977).

11 Cf. State v. Hall, 350 So.2d 141 (La.1977); State v. Ross, 343
So.2d 722 (La.1977); State v. Sylvester, 298 So.2d 807 (La.1974).
Although the issue was undoubtedly presented in these cases the
opinions of the Court did not address it directly.

12 State v. Melanson, 259 So.2d 609 (La.App. 4th Cir. 1972). See,
however, the vigorous divergent view expressed in State v. Ross,
343 So.2d 722 (La.1977) (Tate, J., concurring) and State in the In-
terest of Holifield, 319 So.2d 471 (La.App. 4th Cir. 1975) (Fedoroff,
J., concurring).

13 399 F.2d 467 (Sth Cir. 1968) cert. den. 393 U.S. 1102, 89 S.Ct. 903,
21 L.Ed.2d 795 (1969).

18a

filed, and the nature of his rights to consult
with an attorney and remain silent; 4) whether
the accused is held incommunicado or allowed
to consult with relatives, friends or an at-
torney; 5) whether the accused was in-
terrogated before or after formal charges had
been filed; 6) methods used in interrogation; 7)
length of interrogations; 8) whether vel non
the accused refused to voluntarily give
statements on prior occasions; and 9) whether
the accused has repudiated an extra judicial
statement at a later date.” 399 F.2d 467, 469.

The totality of circumstances in the instant case
shows, inter alia, that Andrew’s knowledge and educa-
tion pertaining to his constitutional liberties were no
greater than that of an average thirteen year old Loui-
siana youth; that he was not allowed to consult with
relatives, friends or an attorney during the interroga-
tion; that he was interrogated before formal charges
had been filed and without being told that the in-
vestigation had focused on him as the primary
suspect; that he was interrogated in an office at the
police station by the chief of police and another officer;
that the interrogation itself lasted no longer than eight
minutes, but it occurred after an intensive six-week
investigation involving many previous contacts
between relator and the police, and it followed closely
his awakening from a frightening dream related to the
murder incident; that the youth had not refused to give
statements on prior occasions, but his father had
cancelled a lie detector test because of his emotional
condition; and that Andrew had repudiated the waiver
of his rights. Thus the factors of the present case raise

19a

grave doubts as to whether there was real under-
standing and intelligent exercise of the constitutional
liberties. Accordingly, were we to rely solely upon the
totality of circumstances test in this case, we would
conclude that the State has not carried its heavy
burden in proving that young Dino was aware not only
of his rights, but also of the consequences of foregoing
them, that he knew he was faced with a phase of the
adversary system, and that he was aware that he was
not in the presence of persons acting solely in his in-
terest.'4

However, exclusive use of the totality of circum-
stances test in relation to waivers by juveniles tends
to mire the courts in a morass of speculation similar to
that from which Miranda was designed to extricate
them in adult cases. Although the Miranda court did
not express itself specifically on the special needs of
juveniles confronted with police interrogation, the
reasons given for making the warnings an absolute
prerequisite to interrogation point up the need for an
absolute requirement that juveniles not be permitted
to waive constitutional rights on their own. The Court
stated:

“The Fifth Amendment privilege is so fun-
damental] to our system of constitutional rule
and the expedient of giving an adequate warn-
ing as to the availability of the privilege so
simple, we will not pause to inquire in in-
dividual cases whether the defendant was
aware of his rights without a warning being

14 Miranda v. Arizona, 384 U.S. 436, 469, 86 S.Ct. 1602, 1625, 16
L.Ed.2d 694, 721 (1966).

20a

given. Assessments of the knowledge the
defendant possessed, based on information as
to his age, education, intelligence, or prior
contact with authorities, can never be more
than speculation; a warning is aclearcut fact.
More important, whatever the background of
the person interrogated, a warning at the time
of the interrogation is indispensable to over-
come its pressures and to insure that the in-
dividual knows he is free to exercise the
privilege at that point in time.” 384 U.S. 436,
468-9, 86 S.Ct. 1602, 1625, 16 L.Ed.2d 694, 720.

‘‘e *# ®

“No amount of circumstantial evidence that
the person may have been aware of this right
will suffice to stand in its stead. Only through
such a warning is there ascertainable
assurance that the accused was aware of this
right.” 384 U.S. 436, 471-2, 86S.Ct. 1602, 1626, 16
L.Ed.2d 694, 722.

Similarly, the rights which a juvenile may waive
before interrogation are so fundamental to our system
of constitutional rule and the expedient of requiring
the advice of a parent, counsel or adviser so relatively
simple and well established as a safeguard against a
juvenile’s improvident judicial acts,'5 that we should
not pause to inquire in individual cases whether the
juvenile could, on his own, understand and effectively
exercise his rights. Assessments of how the “totality
of the circumstances” affected a juvenile in a par-

15 State in the Interest of Holifield, 319S0.2d 471 (La.App. 4th Cir.
1975) (Fedoroff, J., concurring).

EE =

ee Te

2ia

ticular case can never be more than speculation.
Furthermore, whatever the background of the juvenile
interrogated, assistance of an adult acting in his in-
terest is indispensable to overcome the pressures of
the interrogation and to insure that the juvenile knows
he is free to exercise his rights at that point in time.'é

The presence of a parent, counsel, or other adult act-
ing in the juvenile’s interest at the interrogation may
serve several significant subsidiary functions as well.
If the juvenile decides to talk to his interrogators, the
assistance of an adult can mitigate the dangers of un-
trustworthiness. With an adult acting in his interest
present the likelihood that the police will practice
coercion is reduced, and if coercion is nevertheless ex-
ercised the adult can testify to it in court. The pres-
ence of such an adult can also help to guarantee that
the accused gives a fully accurate statement and that
the statement is rightly reported by the prosecution at
trial.'”

Moreover, such a rule will relieve the police from
having to make a subjective judgment in each case. As
noted by the Indiana Supreme Court in Lewis v. State,
259 Ind. 431, 288 N.E.2d 138, 141 (1972):

“The authorities seeking to question a
juvenile enter into an area of doubt and confu-
sion when the child appears to waive his
rights to counsel and against self-

16 See, Miranda v. Arizona, 384 U.S. 436, 468, 86 S.Ct. 1602, 1624, 16
L.Ed.2d 694, 720 (1966).

17 Id. 384 U.S. 436, 470, 86 S.Ct. 1602, 1626, 16 L.Ed.2d 694, 721
(1966).

22a

incrimination. They are faced with the
possibility of takihg a statement from him
only to have a court later find that his age and
the surrounding circumstances precluded the
child from making a valid waiver. There are
no concrete guidelines for the authorities to
follow in order to insure what the waiver will
be upheld. The police are forced to speculate as
to whether the law will judge this accused
juvenile on the same plane as an adult in
regard to the waiver of his constitutional
rights, or whether the court will take
cognizance of the age of the child and apply
different standards.

‘‘*e © ©

‘“* * * It is harmful to the system of criminal
justice to require law enforcement authorities
to second guess the courts in the area of con-
stitutional rights. Clearly defined procedures
should be established in areas which lend
themselves to such standards in order to
assure both efficient police procedure and
protection of the important constitutional
rights of the accused. Age is one area which
lends itself to clearly defined standards.”

One study indicates that many law enforcement of-
ficers in Louisiana are presently following this
procedure.'8

18 See, Comment, Louisiana's Youth Law: Rules and Practice, 35
La.L.Rev. 851, 856 (1975):

“The practice of many of the Louisiana police
departments interviewed was to advise a youth who was
suspected of committing a serious offense that he could re-
main silent and that he could consult with and have

23a

Although a majority of jurisdictions allow a
juvenile to waive his privilege against incrimination
and his right to counsel without mature guidance,'9 a
growing number of courts and scholars recognize that
a& more ascertainable assurance of a knowing and in-
telligent waiver of constitutional rights should
precede juvenile interrogation.2°

counsel present during interrogation. Police often delay
interrogation until the parents of the youth are present and
orally consent to the questioning. Some departments go
even further and obtain a written waiver from the juvenile
and his parents before seeking am admission. A few au-
thorities interviewed, however, were lax in consistently
enforcing such procedures. Failure to employ these and
other safeguards may not only deny fundamental due
process, but may also weaken the state's case against a
delinquent youth by threatening the validity of the confes-
sion thereby obtained.”
See also, Tentative Draft, ABA Standards Relating to Police
Handling of Juvenile Problems, § 3.2 and comments (1977).

19 E.g., State v. Gullings, 244 Or. 173, 416 P.2d 311, 315 (1966); See,
S. Davis, Right of Juveniles: The Juvenile System, §§ 3.11 et seq.
(1974); IJA-ABA Juvenile Justice Standards Project, Standards
Relating to Police Handling of Juvenile Problems (1977), § 3.2, p.
70.

20 See, e.g., Commonwealth v. Jamison, 474 Pa. 541, 379 A.2d 87
(1977); Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977);
Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975);
Lewis v. State, 259 Ind. 431, 288 N.E.2d 138 (1972); Freeman v.
Wilcox, 119 Ga.App. 325, 167 S.E.2d 163 (1969).

See, Comment, Interrogation of Juveniles: The Right to a
Parent’s’Presence, 22 Dick.L. Rev. 543 (1972-73); Comment, Recent
Developments-Criminal Law, 1972 Univ. of I11.L. Forum 625; Note,
34 U. of Pitt.L.Rev. 321 (1972); Note, 3 Seton Hall L.Rev. 482 (1972);
Note, 23 Baylor L.Rev. 467 (1971); Note, 68 Col.L.Rev. 1149(1968).

In § 3.2 of the IJA-ABA Juvenile Justice Standards Project,
Standards Relating to Police Handling of Juvenile Problems
(1977), it is stated:

“*** For some investigative procedures, greater con-
stitutional safeguards are needed because of the
vulnerability of juveniles. Juveniles should not be per-
mitted to waive constitutional rights on their own. * * *”

See, also, the Commentary commencing on p. 69.

Rule 25 of the Model Rules for Juvenile Courts prepared by the

24a

The courts of Pennsylvania, Indiana and Georgia,
for example, have recently concluded that the ad-
ministering of Miranda warnings to a juvenile,
without providing an opportunity to consult with a
mature, informed individual concerned primarily
with the interest of the juvenile, is inadequate to offset
the disadvantage occasioned by youth.2! Moreover,
the Pennsylvania Supreme Court has held that the im-
pediment of immaturity can only be overcome where
the record establishes that the youth had access to the
advice of an attorney, parent or other interested adult,
and that the consulted adult was informed as to the
constitutional rights available to the minor and aware
of the consequences that might follow the election to
be made.22

Some “sophisticated” juveniles, without the benefit
of adult advice, may understand the serious conse-
quences flowing from a waiver of constitutional

Council of Judges of the National Council on Crime and Delin-
quency (1969) recommends, in part:

“No extrajudicial statement by the child to a peace of-
ficer or court officer shall be admitted into evidence unless
it was made in the presence of the child's parent or guar-
dian or counsel. No such statement shall be admitted into
evidence unless the person offering the statement
demonstrates to the satisfaction of the court that, before
making the statement, the child and his parents were in-
formed and intelligently comprehended that he need not
make a statement, that any statement made might be used
in a court proceeding, and that he had a right to consult
with counsel before or during the making of a statement.”

21 See, e.g, Commonwealth v. Jamison, 474 Pa. 541, 379 A.2d 87
(1977); Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797 (1977);
Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 669 (1975);
Lewis v. State, 259 Ind. 431, 288 N.E.2d 138 (1972); Freeman v.
Wilcox, 119 Ga.App. 325, 167 S.E.2d 163 (1969).

22 See, e.g., Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797
(1977).

25a

rights. However, one empirical study indicates that a
large percentage of juveniles are incapable of
knowingly and intelligently waiving constitutional
rights.?3 In any event, it is the general policy of ourlaw
to protect all minors from the possible consequences
of immaturity.*4

Because most juveniles are not mature enough to
understand their rights and are not competent to exer-
cise them,”5 the concepts of fundamental fairness em-
bodied in the Declaration of Rights of our con-
stitution®® require that juveniles not be permitted to
waive constitutional rights on their own. For these
reasons we hold that in order for the State to meet its
heavy burden of demonstrating that a waiver is made
knowingly and intelligently, it must affirmatively
show that the juvenile engaged in a meaningful con-
sultation with an attorney or an informed parent,
guardian, or other adult interested in his welfare

23 A. Ferguson and A. Douglas, A Study of Juvenile Waiver, 7
San Diego L.Rev. 39 (1970).

24 See, e.g., La.C.C. art. 1785; La.C.C.P. art. 4501.

25 IJA-ABA Juvenile Justice Standards Project, Standards
Relating to Police Handling of Juvenile Problems, § 3.2 at p. 70;
Ferster and Countless, The Beginning of Juvenile Justice, Police
Practices and the Juvenile Offender, 22 Vand.L.Rev. 567, 569-97
(1969); see the concurring opinion of Fedoroff, J., State in the In-
terest of Holifield, supra: “* * * I cannot fathom how a minor, who
lacks [see La.C.C. art. 1785 and La.C.C.P. art. 4501] the capacity to
sell, mortgage, donate or release (who could not even contract with
the lawyer whose services he waives) can be said to possess the
capacity to waive constitutional privileges and lose his freedom
as a consequence.”’ 319 So.2d at 475.

26 La.Const. 1974, Art. I, §§ 2 (Due Process of Law), 3 (Right to In-
dividual Dignity [equality], 13 (Rights of the Accused), 16 (Right to
a Fair Trial [right against self-incrimination)).

before he waived his right to counsel and privilege
against self-incrimination.2’

Accordingly, the purported waiver by a juvenile
must be adjudged ineffective upon the failure by the
State to establish any of three prerequisites to waiver,
viz., that the juvenile actually consulted with an at-
torney or an adult before waiver, that the attorney or
adult consulted was interested in the welfare of the
juvenile, or that, if an adult other than an attorney was
consulted, the adult was fully advised of the rights of
the juvenile. In the instant case the record establishes
that Andrew Dino’s mother, who was interested in his
welfare, was present at the police station during the
interrogation. However, the State did not show that
Mrs. Dino was fully advised of her juvenile son's
rights or that Andrew actually consulted with her in
waiving his rights. We are therefore constrained to
conclude that the statement should have been sup-
pressed.

Public Trial

In conformity with the provisions of La. R.S. 13:1574
_ the petition in this case alleges that Andrew Dino isa
delinquent child in that he committed an act in viola-
tion of La.R.S. 14:30, first degree murder, before at-
taining the age of fifteen years.”8 If found guilty of

27 See, Commonwealth v. Smith, 472 Pa. 492, 372 A.2d 797, 803
(1977). (Mandarino, J., concurring).

28 La.R.S. 13;1569(3) defines “child” as a person less than seven-
teen years of age. However, La.R.S. 13:1570, subd. A(5) excepts
from juvenile court jurisdiction any child fifteen years old or over
who is charged with a capital offense or attempted aggravated
rape.

27a

violating any law he could be committed to the
Louisiana Department of Corrections?® until he
reaches the age of twenty-one years.°° Because he
faces a significant period of confinement, Dino con-
tends that he is guaranteed a public trial by our state
constitution on the issue of guilt or innocence. In op-
position, the State relies upon portions of the
Louisiana Juvenile Court Act which provide that in all
cases of children within the jurisdiction of the
juvenile court “[t]he general public shall be excluded”’
from adjudicatory hearings.*! This statutory scheme
conclusively prevents a juvenile who is alleged to
have committed a criminal offense from demanding a
public trial. The issue of whether this legislation is
permitted by the Louisiana Constitution of 1974 is
squarely presented.

In the fiscal year 1976-77, 1,055 juveniles were com-
mitted to the Louisiana Department of Corrections.*
If a juvenile is over the age of thirteen a determination
that he has violated any law or ordinance may result
in his commitment to the Department of Corrections
until he reaches the age of twenty-one years.*9 For a
child under thirteen years of age a finding that he
committed a felony may bring the same conse-

29 La.R.S. 13:1580(A)(2).

30 La.R.S. 13:1580(A)(2)(a). However, achild under the age of thir-
teen years may not be committed unless he committed a felony. La.
R.S. 13:1580(A)(2).

31 La.R.S. 13:1570(B); La.R.S. 13:1570(A)(5) provides that the
juvenile courts do not have jurisdiction over a child fifteen years
or older, who is charged with committing a capital crime or
attempted aggravated rape. Cf. La.Const. 1974, Art. 5, § 19.

32 Louisiana Department of Corrections Annual Statistical
Report, fiscal year 1976-77.

33 La.R.S. 13:1580(A)(2)(a).

quence.34 However, a juvenile cannot be confined fora
period which exceeds the length of time for which an
adult could be confined if convicted of the offense
which formed the basis for the adjudication of delin-
quency.*5 Upon request of the Department of Correc-
tions, a judge may authorize the Department to
transfer any committed male of the age of fifteen years
or over, whom the Department has determined to be in-
corrigible, to the Louisiana Correctional and In-
dustrial School, an adult correctional institution.
Failure of the judge to act on the request within thirty
days authorizes the Department to effect the transfer
within its own discretion.3’ A judge also may transfer,
upon recommendation of the Department, any
juvenile “to such other agency or facility which may
be available to best serve the needs of the juvenile.'’8

The consequences which can result from a juvenile
adjudication are much more severe than the legal and
social sanctions which flow from many offenses
comitted by adults who are entitled to a public trial.%°

34 La.R.S. 13:1580(A)(2).
35 La.R.S. 13:1580(A)(2)(a).

36 La.R.S. 15:907(B). In the instant case we are not called upon to
express our opinion as to the validity of the transfer procedures
set forth in La.R.S. 15:907.

37 Id.
38 La.R.S. 15:907.

39 E.g., the maximum period of incarceration following convic-
tion in cases involving the selected offenses are:

Negligent homicide — not more than five years (La.R.S. 14:32);
simple arson where the damage is less than $500 — a $2500 fine or
imprisonment for not more than five years or both (La.R.S. 14:52,
as amended by Act 53 of 1977); simple robbery — not more than
seven years with or without hard labor (La.R.S. 14:65, as amended
by Act 134 of 1977); theft involving a value of greater than $100 but
less than $500 — not more than two years with or without hard
labor (La.R.S. 14:67); improper telephone communications —- not
more than two years or a $500 fine or both (La.R.S. 14:285).

Although a child less than fifteen years of age who is
accused of a capital offense is not exposed to capital
punishment, a determination of his culpability may
subject him to harsh consequences. He can be confined
until his twenty-first birthday, bringing on the ad-
ditional possibility of his transfer to an adult penal in-
stitution. In cases involving homicides or other
heinous crimes, a judge may be reluctant to exercise
his authority to discharge a child orto release him un-
der supervision before his twenty-first birthday.*° The
opprobrium attached to such a delinquent act is likely
to be as severe as that which follows from similarcon-
duct by adults.

A judicial proceeding which may result in the
removal of a child from the custody of his parents and
in his confinement until the age of twenty-one years is
not essentially different from a criminal trial. The
purpose of the juvenile adjudicatory proceeding is to
decide whether the accused is responsible for
prohibited conduct and, when based on a criminal
violation, the consequences may be in effect the same
as in the case of an adult. Indeed, it is even possible
that ultimately it could result in the juvenile being in-
carcerated in a penal institution with adult
offenders.*! This contingency was noted in In Re
Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). In
discussing the importance of Fifth Amendment
protection against self-incrimination in delinquency
proceedings, because the characterization of the
proceedings as “civil” or the supposition that they

40 See La.R.S. 15:906.
41 See footnote 36, supra.

30a

possess a benevolent quality does not work a change
in their nature, the Court observed:

“It would be entirely unrealistic to carve out
of the Fifth Amendment all statements by
juveniles on the ground that these cannot lead
to ‘criminal’ involvement. In the first place,
juvenile proceedings to determine ‘delinquen-
cy,’ which may lead to commitment to a state
institution, must be regarded as ‘criminal’ for
purposes of the privilege against self-
incrimination. To hold otherwise would be to
disregard substance because of the feeble en-
ticement of the ‘civil’ label-of-convenience
which has been attached to juvenile proceed-
ings. Indeed, in over half of the States, there is
not even assurance that the juvenile will be
kept in separate institutions, apart from adult
‘criminals.’ In those States juveniles may be
placed in or transferred to adult penal in-
stitutions after having been found ‘delinquent’
by a juvenile court. For this purpose, at least,
commitment is a deprivation of liberty. It is
incarceration against one’s will, whether it is
called ‘criminal’ or ‘civil.’ * * *” 387 U.S. 1, 49-
50, 87 S.Ct. 1428, 1455, 18 L.Ed.2d 527, 558 (foot-
notes omitted).

The Supreme Court’s reasons for finding the slight
differences between adult and juvenile confinement in
Arizona to be of ‘‘no constitutional consequence” are
equally applicable to the Louisiana correctional
system. The Court stated:

3la

“Ultimately, however, we confront the reali-
ty of that portion of the Juvenile Court process
with which we deal in this case. A boy is
charged with misconduct. The boy is commit-
ted to an institution where he may be restrain-
ed of liberty for years. It is of noconstitutional
consequence — and of limited practical mean-
ing — that the institution to which he is
committed is called an Industrial School. The
fact of the matter is that, however euphemistic
the title, a ‘receiving home’ or an ‘industrial
school’ for juveniles is an institution of con-
finement in which the child is incarcerated for
a greater or lesser time. His world becomes ‘a
building with whitewashed walls, regimented
routine and institutional hours... .’ Instead of
mother and father and sisters and brothers and
friends and classmates, his world is peopled
by guards, custodians, state employees, and
‘delinquents’ confined with him for anything
from waywardness to rape and homicide.” 387
U.S. 1,27, 87S.Ct. 1428, 1443, 18 L.Ed.2d 527, 546.

For these reasons the Court introduced into the
juvenile process all the elements necessary to make
the adjudicatory hearing into an adversary process —
the right to counsel, the right to confront and cross-
examine witnesses, and the privilege against self-
incrimination.*2 Because the consequences which
confront a child who is alleged to have committed a
criminal offense are essentially the same as those fac-
ed by adult criminal defendants, the protections which
may be afforded by a public trial in juvenile proceed-

42 In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

32a

ings corresponding to criminal cases are of great im-
portance.

A brief consideration of the underlying reasons for
the right to a public trial convinces us that it is of fun-
damental importance in any adversary proceeding
which may lead to confinement. The Supreme Court,
in holding that the public trial guaranty is applicable
to the states through the due process clause of the
Fourteenth Amendment, in In Re Oliver,* stated:

“The traditional Anglo-American distrust
for secret trials has been variously ascribed to
the notorious use of this practice by the
Spanish Inquisition, to the excesses of the
English Court of Star Chamber, and to the
French monarchy’s abuse of the lettre de
cachet. All of these institutions obviously
symbolized a menace to liberty. In the hands of
despotic groups each of them had become an
instrument for the suppression of political
and religious heresies in ruthless disregard of
the right of an accused to a fairtrial. Whatever
other benefits the guarantee to an accused that
his trial be conducted in public may confer
upon our society,*4 the guarantee has always
been recognized as a safeguard against any
attempt to employ our courts as instruments
of persecution. The knowledge that every
criminal] trial is subject to contemporaneous
review in the forum of public opinion is an
effective restraint on possible abuse of
judicial power.

‘th & &

43 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948).

33a

“*** In view of this nation’s historic dis-
trust of secret proceedings, their inherent
dangers to freedom, and the universal require-
ment of our federal and state governments that
criminal trials be public, the Fourteenth
Amendment’s guarantee that no one shall be
deprived of his liberty without due process of
law means at least that an accused cannot be
thus sentenced to prison.”

333 U.S. at 268-70, 273, 68 S.Ct. 505-6, 507, 92
L.Ed. 682, 691-2, 694. (Other footnote omitted.)

24 “Other benefits attributed to publicity
have been: (1) Public trials come to the
attention of key witnesses unknown to the
parties. These witnesses may then volun-
tarily come forward and give important
testimony. 6 Wigmore, Evidence § 1834 (3d
ed. 1940); Tanksley v. United States, 145
F.2d 58, 59, 156 A.L.R. 257.

“(2) The spectators learn about their
government and acquire confidence in
their judicial remedies. 6 Wigmore,
Evidence, § 1834 (3d ed. 1940); 1 Bentham,
Rationale of Judicial Evidence 525 (1827);
State v. Keeler, 52 Mont. 205, 156 P. 1080; 20
Harv.L.Rev. 489.”

In the same vein the Court later observed in Estes v.
Texas“ that the constitutional guarantee of public

44 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965).

34a
trial isto insure that “the accused would be fairly dealt
with... .""45

Accordingly, the right to a public trial is one of the
fundamental rights in the American scheme of justice
and it is included in the constitutions of both the Unit-
ed States and the state of Louisiana because it works
analogously to a jury trial to protect the accused from
possible oppression by exposing improper judicial
behavior to the indignation of the community at
large.*® For the reasons assigned we conclude that a
public trial is also among the essentials of due process
and fair treatment required by Article 1, § 2 of the 1974
Louisiana Constitution during the adjudication of a
charge of delinquency based upon acts that would con-
stitute a crime if engaged in by ai adult.4”7 We hold
therefore that La.R.S. 13:1579(B) is unconstitutional
insofar as it prohibits a juvenile from electing a public
trial in adjudicatory proceedings based on criminal
charges which would entitle an adult accused to have
his trial conducted in public.

Jury Trial

The juvenile court determined that a person in
relator’s circumstances is denied the right to a jury

45 381 U.S. 532, 538-9, 85 S.Ct. 1628, 1631, 14 L.Ed.2d 543, 548 (1965).

46 United States Constitution, Sixth Amendment; La.Const.1974,
Art. 1,§ 16; McKeiver v. Pennsylvania, 403 U.S. 528, 91S.Ct. 1976, 29
L.Ed.2d 647 (1971) (Brennan, J., concurring).

47 See also, R.L.R. v. State, 487 P.2d 27 (Alaska, 1971); IJA-ABA
Juvenile Justice Standards Project, Standards Relating to Ad-
judication (1977), § 6.1 et seq. and comments. For the same reasons
expressed in his separate dissenting opinion, the author is of the
opinion that denial of a public trial to a juvenile charged with the
commission of a criminal] offense is also invalid as a contraven-
tion of the ban against arbitrary and unreasonable age-based dis-
crimination. La.Const.1974, Art. 1, § 3.

35a

trial by La.R.S. 13:1579(A), which, in pertinent part,
provides:

“All cases of children shall be heard
separately from the trial of cases against
adults and shall be tried without a jury.* * *”

For a majority of this Court, the only question
presented by this ruling is whether a jury trial is
among the essentials of due process and fair treatment
required during juvenile adjudicatory proceedings. A
majority of the United States Supreme Court, in
McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976,
29 L.Ed.2d 647 (1971), held that the due process clause
of the Fourteenth Amendment does not impose the
Sixth Amendment right to jury trial upon the states in
juvenile delinquency proceedings. For reasons
similar to those expressed in McKeiver, a majority of
this Court has concluded that the Louisiana due
process guaranty, La.Consv. 1974, Art. 1, § 2, does not
afford a juvenile the right to a jury trial during the ad-
judication of a charge of delinquency based upon acts
that would constitute a crime if engaged in by an
adult.48

Conclusion

For the reasons assigned, the orders of the juvenile
court denying relator’s motion to suppress and motion
for a public trial are vacated. The order denying
relator’s motion for a jury trial and the other rulings

48 For the reasons stated in a separate dissenting opinion, the
author and two other members of this Court disagree with the
reasons and holding expressed in the part of this Court's opinion
pertaining to jury trial.

36a
below are affirmed.49 The case is remanded to the
juvenile court for further proceedings consistent with
the opinion herein.

SANDERS, C. J., concurs in part and dissents in part
with written reasons.

MARCUS, J., dissents in part and concurs in part for
reasons assigned by SANDERS, C. J.

SUMMERS, J., dissents in part and concurs in part
for the reasons assigned.

DENNIS, J., with whom DIXON and CALOGERO,
JJ., join, dissents in part and concurs in part.

DIXON and CALOGERO, JJ., agree with the majori-
ty opinion except for the disposition of the jury trial
question, and join in dissent of DENNIS, J.

SANDERS, Chief Justice (concurring in part and
dissenting in part).

I concur in the holding that LSA-R.S. 13:1579 A,
providing for the hearing of children’s cases without a
jury is constitutional. In the absence of a con-
stitutional infirmity, the expression of legislative will
is entitled to full recognition. I must dissent, however,
from the two remaining holdings: (1) that a public trial
is required under the Due Process Clause of the
Fourteenth Amendment and, consequently, that LSA-

49 We have reviewed relator’s other assignments of error
relating to witness sequestration; priest-penitent privilege; in-
troduction of hypnosis evidence; and motion to clarify procedure
and find them to be without reversible merit.

37a

R.S. 13:1579 B is unconstitutional; (2) that the in-

culpatory statement is inadmissible and should be
suppressed.

PUBLIC TRIAL

The juvenile court is geared to the philosophy of
rehabilitating each child and protecting the public
from delinquent behavior. Basic to this philosophy is
the concept of “parens patriae” — the power of the
state through the court to act in behalf of the child asa
wise parent would. :

The juvenile proceeding is noncriminal. If ad-
judicated a delinquent, the child becomes a ward of the
court. For correctional purposes, the maximum dis-
position is commitment to the Department of Correc-
tions for placement in a juvenile training school for an
indefinite period, but in no case beyond the age of
twenty-one. LSA-R.S. 13:1580 A(2)(a). LSA-R.S.
13:1579 A provides for the use of civil procedures.
LSA-R.S. 13:1580 B expressly provides:

“No adjudication by the court upon the
status of any child shall operate to impose any
of the civil disabilities ordinarily resulting
from conviction, nor shall any child be deemed
a criminal by reason of such adjudication, and
such adjudication shall not be deemed a con-
viction. The disposition of a child or any
evidence given in the court shall not operate to
disqualify the child in any future civil service
application or appointment.”

38a

Since the proceeding is noncriminal, the public trial
requirement of the state and federal constitutions does
not apply. The public trial provision of the state con-
stitution (Art. 1, § 16) applies only to a ‘person charg-
ed with acrime.” The publictrial provision of the Unit-
ed States Constitution (6th Amendment) applies only
to “criminal prosecutions.”

As late as 1971, the United States Supreme Court
pointed out in McKeiver v. Pennsylvania, 403 U.S. 528,
91 S.Ct. 1976, 29 L.Ed.2d 647, that there is no con-
stitutional requirement that all the procedures of a
criminal trial be imposed in a juvenile hearing.

The Legislature has wisely accorded the judge con-
siderable discretion in regulating attendance at a
juvenile hearing.

LSA-R.S. 13:1579 B provides:

“The general public shall be excluded from
hearings under this section. Only the child, his
counsel, witnesses, the child’s parents, tutor
or other custodian, the officers of the court,
and any other persons asthe court finds havea
legitimate or proper interest in the proceed-
ings or in the work of the court may be admit-
ted by the court. The court may exclude any
person from the hearing if such person’s con-
duct is disruptive of orderly proceedings and
the court’s admonition to conduct himself
properly is not heeded promptly.”

In my opinion, the statute is constitutional.

39a

INCULPATORY
STATEMENT — WAIVER
OF RIGHTS

The decision today establishes three iron rules con-
cerning the admission of a confession of a person un-
der seventeen years of age:

(1) that the juvenile actually consulted with
an attorney or an adult before waiving his
right to silence;

(2) that the attorney or adult consulted was
interested in the welfare of the juvenile;

(3) if an adult other than an attorney is con-
sulted, the adult also must be fully ad-
vised of the rights of the juvenile.

I recognize that in most instances the presence of a
parent during the questioning of a child is the better
practice. I am not prepared, however, to fasten upon
our law enforcement officers the inflexible rules an-
nounced in the present case. Under them, when
parents are unavailable, an investigation must be
halted. The requirement of the presence of an attorney
adds one more costly burden to our already heavily
burdened justice system. Finally, the question of
whether the attorney or adult is “interested in the
welfare of the juvenile” creates a troublesome issue to
baffle the courts. In the rush of an investigation, how
are law enforcement officers to determine the re-
quisite interest?

40a

As the majority notes, the prevailing rule is that a
juvenile may waive his right to silence without paren-
tal guidance or the presence of counsel. The validity of
the waiver and voluntariness of the confession are
determined from the totality of the circumstances.
See, e.g., State v. Gullings, 244 Or. 173, 416 P.2d 311
(1966); Mosley v. State, 246 Ark. 358, 438 S.W.2d 311
(1969); People v. Lara, 67 Cal.2d 365, 62 Cal.Rptr. 586,
432 P.2d 202 (1967), cert. denied 392 U.S. 945, 88 S.Ct.
2303, 20 L.Ed.2d 1407 (1968); State v. Roberts, Fla.App.,
274 So.2d 262 (1973); West v. United States (5th Cir.) 399
F.2d 467 (1968); American Law Institute, Model Code of
Pre-Arraignment Procedure, pp. 361-362 (1975).

In State v. Gullings, supra, the Oregon Supreme
Court stated:

“It can not be said that a juvenile can not waive
constitutional rights as a matter of law. It may
be more difficult to prove because of his age,
but it is a factual matter to be decided by the
trial judge in each case.”

This Court has heretofore aligned itself with the ma-
jority rule. See, e.g., State v. Ross, La., 343 So.2d 722
(1977); State v. Sylvester, La., 298 So.2d 807 (1974);
State v. Melanson, La.App., 259 So.2d 609 (1972).

In State v. Ross, supra, this Court stated:

“Before a written confession can be in-
troduced in evidence, the state has the burden
of affirmatively proving that it was free and
voluntary and not made under the influence of

4la

fear, duress, intimidation, menaces, in-
ducements or promises. La.R.S. 15:451;
La.Code Crim.P. art. 703(C). It must also be es-
tablished that an accused who makes aconfes-
sion during custodial interrogation was first
advised of his Miranda rights. Miranda v.
Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966). A confession need not be the spon-
taneous act of the accused and may be obtained
by means of questions and answers. La.R.S.
15:453; State v. Simmons, 340 So.2d 1357
(La.1976). While close scrutiny is required in
determining whether the state has met its
heavy burden of demonstrating that the con-
fession of a juvenile was free and voluntary,
we have held that the age of a defendant does
not of itself render a confession involuntary.
State v. Sylvester, 298 So.2d 807 (La.1974). The
voluntariness of the confession is a question
of fact. State v. Demourelle, 332 So.2d 752
(La.1976); State v. White, 321 So2d 491
(La.1975).”

I would adhere to our prior jurisprudence, holding
that the validity of a waiver and the voluntariness of
the ensuing confession depend upon the totality of the
circumstances. Among the factors to be considered
are age, intelligence, opportunity to consult with
parents or an attorney, and length of questioning.

The background facts are these. A nine-year-old girl
was found fatally beaten in a wooded area in
Shreveport. Andrew Leonard Dino, a thirteen-and-
one-half-year oid neighbor of the deceased “found” the
body and pointed it out to the police.

42a

On July 8, 1977, Andrew, who was not then a suspect,
came to the police station with his parents and with
their consent gave a statement concerning the inci-
dent. When the questioning was completed, they
departed.

On August 1, 1977, the father likewise gave a state-
ment to the police.

On August 2, 1977, Andrew made a statement to his
mother indicating that he might know something
about the crime. His mother then called one of the
police officers and asked him to talk to her son. She
agreed to bring him to the police station. At her Te-
quest, the officers called her husband's office, leaving
word for him to join them at police headquarters.

Upon arrival at the police station, Mrs. Dino waited
in a separate room while the officers talked to her son.
The officers explained to Andrew all of his rights as
required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.
1602, 16 L.Ed.2d 694 (1966). Within not more than eight
minutes, he gave an oral inculpatory statement. After
the statement had been given, the police informed the
mother that he had confessed. The father arrived
shortly thereafter.

It is evident from the statement of facts that the
questioning was initiated at the suggestion of the
mother and that there was no coercion, pressure, or
prolonged questioning. While the mother was not in
the immediate presence of her son, she was in an ad-
joining room, readily available.

43a

In ruling the confession admissible, the able
juvenile court judge stated:

“In deciding this question, the Court will
comment upon a few things concerning Andy
and the conduct of this hearing. Andy Dino has
been referred to continuously throughout

these proceedings by counsel as Little Andy,

and from the Court's observation of Andy he is
not small for his age, he is an average-size
thirteen or fourteen year old young man. And
from his demeanor during these proceedings
it is apparent that he is very attentive as to
what is going on and appears to comprehend
what is happening before him.

“On August 2nd, when Andrew made the in-
culpatory or self-incriminating statement, he
had not been taken into custody at that time.
He had not been in detention. He had not been
subjected to interrogation for a long period of
time. But, to the contrary, had been brought to
the police station by his mother after she had
called to request that Detective Brann talk
with him, and on the suggestion of Detective, I
believe it was Morgan, he was brought to the
station for this purpose or for this interview.

“Upon arriving, the mother went into
another office with one detective and Andy
went into the office with Detective Brann and
Chief Lanigan. Detective Brann started the in-
terview with Andy, whereupon the Chief in-
terrupted and explained the necessity for the

44a

reading of Andy his rights, whereupon Detec-
tive Brann obtained acard, arights card as itis
referred to, and basically this card was recit-
ed to Andy by Detective Brann, and it conclud-
ed with the statement: ‘Do you wish to make a
statement and tell how this happened.’ And,
according to the evidence, after this statement
was made, Andy responded and made his in-
culpatory or self-incriminating statement.
From this Court’s experience, having had the
responsibility to explain these rights to
juveniles and seeing their reaction in Court,
and testing their ability to understand, it is our
opinion that a juvenile of Andy’s mentality
and his capabilities and his age is well capable
of understanding his rights, with such an ex-
planation having been given him.”

The juvenile court judge’s ruling on the volun-
tariness of a confession is entitled to great weight. I
find no adequate reason in the record to disturb the rul-

ing.

For the reasons assigned, I concur in the holding
that no jury trial is required but otherwise dissent.

SUMMERS, Justice (concurring in part and dissen-
ting in part).

I agree that in this case of a thirteen-year-old
juvenile the inculpatory statement he gave officers
outside the presence of his parents, tutor, custodian or
an attorney should be suppressed. I do not agree,
however, that such a result should follow automatical-

45a

ly in every case involving every juvenile. As the ma-
jority opinion concedes, some “sophisticated”
juveniles, without the benefit of adult advice, may un-
derstand the serious consequences flowing from a
waiver of constitutional rights.

Inasmuch as the majority was able to come to the
conclusion upon the totality of the circumstances test
in this case that the State had not carried its heavy
burden in proving that young Dino was aware not only
of his rights, but also of the consequences of foregoing
them, an adequate basis for suppressing the in-
culpatory statement had been found. It was unneces-
sary, therefore, to adopt a dogmatic approach and for-
mulate a rule which categorically invalidates every
confession of all juveniles regardless of age unless
attended and advised at the time by an adult or at-
torney having an interest in the juvenile.

The totality of circumstances tests contemplates
age and maturity of the juvenile as one of the prin-
cipal factors to be considered in determining the
voluntariness of an inculpatory statement or confes-
sion. In this sensitive and complex field of the law in-
volving juveniles, judicial restraint and a wise regard
for legislative prerogatives should make it clear that
such matters are more properly the concern of the
legislature.

If wisely applied the totality of circumstances test is
entirely adequate to protect the rights of the juvenile,
uphold constitutional due process and at the same
time permit the State to maintain a measure of control
over the delinquent juvenile and protect the public
from his offenses.

. 46a

Provisions of the Juvenile Court Act which require
that the general public be excluded from adjudication
hearing involving juveniles are not unconstitutional.
La. Rev.Stat. 13:1579 B. The child, his counsel, wit-
nesses, the child’s parents, tutor or other custodian,
the officers of the court, and any other persons which
the court finds has a legitimate or proper interest in
the proceedings or in the work of the court may be ad-
mitted. Ibid. 1579 B. Only widespread publicity and
morbid curiosity are prohibited in the interest of the
juvenile. All those primarily interested in the welfare
of the juvenile may attend.

It is evident that such a provision is designed for the
protection of the juvenile. By these safeguards limit-
ing attendance, undue publicity and notoriety are
avoided and the child’s future is not blemished or im-
paired by his juvenile record. In the absence of a show-
ing of undue prejudice in a particular case, and none
has been shown here, there is no reason to declare this
statute unconstitutional. As presently structured the
Juvenile Court Act presents no threat of a secret trial.
Adequate assurances are contained in the Act that the
juvenile will be fairly dealt with.

I would uphold the constitutionality of the Act
against the charge that it deprives the juvenile of a
public trial.

I agree that the juvenile is not entitled to jury trial.
DENNIS, Justice, with whom DIXON and

CALOGERO, JJ., join, dissenting in part and con-
curring in part.

47a

I join in the reasons and holding of the majority
opinion pertaining to the waiver of rights by juveniles
and the right to public trial. I respectfully dissent from
the part of the opinion and the holding relating to the
right to jury trial.

Article 1, §3 of the 1974 Louisiana Constitution
guarantees all persons equal protection of the laws
and prohibits arbitrary, capricious or unreasonable
discrimination against a person because of age or cer-
tain other physical and intellectual characteristics.!
By prohibiting such discrimination because of age, it
was the intention of the delegates to the constitutional
convention to forbid, at least, unreasonable
classifications that do not have the support of a
rational basis.”

Louisiana has established classifications based on
age in determining whether a person accused of a
crime shall be entitled to a jury trial before being sub-
jected to confinement or other punishment. A person
accused of a capital offense or attempted aggravated
rape who is fifteen years of age or older is entitled to be
tried before a jury of twelve persons, all of whom must

1 Article 1, § 3 of the Louisiana Constitution of 1974 provides:

“No person shall be denied the equal protection of the
laws. No law shall discriminate against a person because
of race or reiigious ideas, beliefs, or affiliations. No law
shall arbitrarily, capriciously, or ui reasonably discrim-
inato against a person because of birth, age, sex, culture,
physical condition, or political ideas or afiiliations.
Slavery and involuntary servitude are prohibited, except
in the latter case as punishment for crime.”

2 XII, Constitutional Convention of 1973, Verbatim Transcripts,
August 29, 1973, pp. 57-77, 80-99, August 30, 1973, pp. 2-6; Hargrave,
Declaration of Rights of the 1974 Louisiana Constitution, 35
La.L.Rev. 1, 7 (1974).

48a

concur to render a verdict. A person under fifteen
years of age alleged to be delinquent because he com-
mitted such an act is entitled only to a trial before a
juvenile court judge.* A person seventeen years of age
or older who is charged with an offense punishable by
confinement for more than six months is entitled to a
jury trial.5 A person under seventeen years of age, ex-
cept in instances when he may be charged as an adult
with a capital offense or attempted aggravated rape,
may not have a jury determine whether he violated a

law.®

The right to a jury trial is guaranteed by our state
constitution to any person in a case in which the
punishment may be confinement for more than six
months.’ The average term of juvenile confinement in
Louisiana is well in excess of six months.’ In basing
the right on the possibility of confinement for six

3 La.Const.1974, Art. 1, § 17; Art. 5, § 19; La.R.S. 13:1570(A)(5).

4 La.R.S. 13:1579.

5 La.Const.1974, Art. I, § 17.

6 See footnote 4, supra.

7 La.Const.1974, Art. 1, § 17.

8 Juvenile Exits by Major Crime Categories and Length of Stay
No. Exits Average No. Exits Average

1975-76 Stay 1976-77 Stay

Robbery and

Rusestion 60 353 days 89 371 days

Assault and

Battery 59 271 67 223

Burglary

and Theft 414 266 525 254

Drugs 47 229 24 254

Other 297 275 277 296

Louisiana Department of Corrections Annual Statistical Report,
fiscal year 1975-76, 1976-77.

49a

months, Louisiana has chosen to incorporate substan-
tially the jury trial guaranty of the Sixth Amendment
to the United States Constitution as set forth in Dun-
can v. Louisiana.® In that decision and ina companion
case’? the Court set forth the rationale that a jury trial
Should be afforded to any person charged with a
serious offense or upon whom the government seeks
to impose a severe period of confinement. The un-
derlying reasons for finding that the Sixth Amend-
ment right to a trial by jury is afforded in state courts
by virtue of the due process clause of the Fourteenth
Amendment were eloquently stated by the Duncan
majority as follows:

“The guarantees of jury trial in the Federal
and State Constitutions reflect a profound
judgment about the way in which law should
be enforced and justice administered. A right
to jury trial is granted to criminal defendants
in order to prevent oppression by the Govern-
ment. Those who wrote our constitutions
knew from history and experience that it was
necessary to protect against unfounded crim-
inal charges brought to eliminate enemies and

9 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968).

10 In Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522
(1968) the Supreme Court held the right to a trial by jury guar-
anteed under Duncan v. Louisiana, supra, extended to a criminal
contempt proceeding which had been previously thought to be a
non-serious offense and which, at common law, had been tried
without a jury. The Court found such proceedings to be “in-
distinguishable” from ordinary criminal proceedings since the
impact on the individual was the same in terms of deprivation of
freedom. Even though such proceedings had traditionally been
disposed of summarily before a judge for purposes of judicial ef-
ficiency, the Court ruled that these considerations must give way
to the right to trial by jury.

50a

against judges too responsive to the voice of
higher authority. The framers of the con-
stitutions strove to create an independent
judiciary but insisted upon further protection
against arbitrary action. Providing an ac-
cused with the right to be tried by a jury of his
peers gave him an inestimable safeguard
against the corrupt or overzealous prosecutor
and against the compliant, biased, or eccentric
judge. If the defendant preferred the common-
sense judgment of a jury to the more tutored
but perhaps less sympathetic reaction of the
single judge, he was to have

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1802%3A1. Public record. Not legal advice.