DL00-01028
: JUVENILE MATTERS
IN
RE MICHAEL S. : JUDICIAL DISTRICT OF:
:STAMFORD/NORWALK
:
AT STAMFORD
:
JANUARY 31, 2001
MEMORANDUM
OF DECISION
The
respondent, currently forty years of age, has been referred to the
Superior
Court
for Juvenile Matters, charged as a delinquent for the alleged commission of
the
murder
of Martha Moxley in 1975.
The
statute in effect at the time of the murder, which controls the
transfer
assessment
in this matter, provides:
Transfer
to superior court of child referred for commission of
murder.
The juvenile court shall have the authority to transfer to
the
jurisdiction
of the superior court any child 1
referred
to it for the commission of a
murder,
provided any such murder was committed after such child attained
the
age
of fourteen years. No such transfer shall be valid unless prior thereto
the
court
has caused a complete investigation to be made as provided in section
17-
66
and has found, after a hearing, that there is reasonable cause to believe
that
(1)
the child has committed the act for which he is charged and (2) there is
no
state
institution designed for the care and treatment of children to which
said
court
may commit such child which is suitable for his care or treatment or
(3)
the
safety of the community requires that the child continue under restraint for
a
period
extending beyond his majority and (4) the facilities of the superior
court
provide
a more effective setting for disposition of the case and the institutions
to
which
said court may sentence a defendant are more suitable for the care
or
treatment
of such child.
General
Statutes (Rev. to 1975) § 17-60a.2
1
General
Statutes ( Rev. to 1975) § 17-53 defines a “child” as “any person
under
sixteen
years of age.”
2
Further
references to the General Statutes will be to those in effect at the time
of
the
murder, revised to 1975.
Two
conditions precedent to any such transfer – the age of the respondent
and
reasonable
cause – were addressed, by the state and the respondent, during a
three-day
evidentiary
hearing in late June, 2000. In a written memorandum of decision issued
on
August
17, 2000, this court held that there was reasonable cause to believe that
the
respondent
committed the murder of Martha Moxley in 1975 and that he was
fifteen
years
of age on the date of said murder.
These
two conditions precedent having been established, for the court’s
further
consideration
in assessing any such transfer request, §17-60a directs the court to
order
“a
complete investigation to be made as provided in [General Statutes (Rev. to
1975)] §
17-66.”3
Generally,
such an investigation is only ordered post adjudication, i.e., after
a
finding
of delinquency, and would include physical and/or mental evaluation(s),
if
appropriate
to the full disposition of the case. Here, however, there has been
neither
acknowledgement
of responsibility by the respondent nor adjudication of
the
respondent
as a delinquent 4
for
the murder of Martha Moxley. Accordingly, the
3
General
Statutes (Rev. to 1975) § 17-66 provides:
Investigations
by probation officer prior to disposition of
delinquency
case. Prior
to the disposition of the case of any child found
to
be delinquent, investigation shall be made of the facts as
herein
specified
by the probation officer, and until such investigation has
been
completed
and the results thereof placed before the judge, no
disposition
of
the child’s case shall be made. Such investigation shall consist of
an
examination
of the parentage and surroundings of the child, his age,
habits
and history, and shall include also an inquiry into the
home
conditions,
habits, and character of his parents or guardians. Where a
child
is or legally should be in attendance at school, it shall
further
contain
a report of the child’s school adjustment, which shall be
furnished
by the school officials to the court upon its request. The
court
shall,
when it is found necessary to the disposition, cause a
complete
physical
or mental examination, or both, to be made of the child by
persons
professionally qualified to do so.
4
A
“delinquent” is defined in General Statutes (Rev. to 1975) § 17-53 as a
child
“(a)
who has violated any federal or state law or municipal or local ordinance,
or
Two
conditions precedent to any such transfer – the age of the respondent
and
reasonable
cause – were addressed, by the state and the respondent, during a
three-day
evidentiary
hearing in late June, 2000. In a written memorandum of decision issued
on
August
17, 2000, this court held that there was reasonable cause to believe that
the
respondent
committed the murder of Martha Moxley in 1975 and that he was
fifteen
years
of age on the date of said murder.
These
two conditions precedent having been established, for the court’s
further
consideration
in assessing any such transfer request, §17-60a directs the court to
order
“a
complete investigation to be made as provided in [General Statutes (Rev. to
1975)] §
17-66.”3
Generally,
such an investigation is only ordered post adjudication, i.e., after
a
finding
of delinquency, and would include physical and/or mental evaluation(s),
if
appropriate
to the full disposition of the case. Here, however, there has been
neither
acknowledgement
of responsibility by the respondent nor adjudication of
the
respondent
as a delinquent 4
for
the murder of Martha Moxley. Accordingly, the
3
General
Statutes (Rev. to 1975) § 17-66 provides:
Investigations
by probation officer prior to disposition of
delinquency
case. Prior
to the disposition of the case of any child found
to
be delinquent, investigation shall be made of the facts as
herein
specified
by the probation officer, and until such investigation has
been
completed
and the results thereof placed before the judge, no
disposition
of
the child’s case shall be made. Such investigation shall consist of
an
examination
of the parentage and surroundings of the child, his age,
habits
and history, and shall include also an inquiry into the
home
conditions,
habits, and character of his parents or guardians. Where a
child
is or legally should be in attendance at school, it shall
further
contain
a report of the child’s school adjustment, which shall be
furnished
by the school officials to the court upon its request. The
court
shall,
when it is found necessary to the disposition, cause a
complete
physical
or mental examination, or both, to be made of the child by
persons
professionally qualified to do so.
4
A
“delinquent” is defined in General Statutes (Rev. to 1975) § 17-53 as a
child
“(a)
who has violated any federal or state law or municipal or local ordinance, or
(b)
3
transfer
assessment in this matter is only dispositive of the issue of the forum,
juvenile
versus
adult, in which the adjudicatory phase will occur.5
Hence,
this court is without
authority
to order that the respondent submit to any such physical and/or
mental
evaluation(s).6
Recognizing
that the provisions of §17-66 are not totally applicable to
the
instant
matter, but in furtherance of, and in accordance with the mandatory language
of
General
Statutes (Rev. 10 1975) § 17-60a, this court ordered an investigation by
the
probation
office, albeit limited given the respondent’s circumstances. The
completed
report
was filed on September 27, 2000. Pursuant to the applicable rules of
practice,
who
has without just cause run away from his parental home or other
properly
authorized
and lawful place of abode, or (c) who is beyond the control of his
parent,
parents,
guardian or other custodian, or (d) who has engaged in indecent or
immoral
conduct,
or (e) who has been habitually truant or who, while in school has
been
continuously
and overtly defiant of school rules and regulations, or (f) who has
violated
any
lawful order of the juvenile court.”
5
See
In re Ralph M., 211 Conn. 289, 308, 559 A.2d 179 (1989) (the only
purpose
of
the juvenile transfer hearing is the determination of the uses of one of the
two
possible
forums, which will then hold the adjudicatory hearing).
6
See
Practice Book, 1963 § 1125 (1974 Sup.).
Physical
and Mental Examinations
(1)
Pursuant to Gen. Stat. 17-66, and as a part of the investigation
therein
authorized
of any child who has acknowledged responsibility for
delinquent
behavior
in accordance with paragraph (5) of Sec. 1102, the court may, in
its
discretion,
cause a complete physical and/or mental examination to be
made
of
the child by persons properly qualified professionally to do
so.
(2)
No such examination or examinations by any physician, psychologist,
or
psychiatrist
shall be made of any child denying responsibility for
delinquent
behavior
prior to the adjudication by the court of his responsibility for
the
behavior
in question, except (a) with the written permission of the
child’s
parent,
or attorney, or (b) when the court finds that there is a question of
the
child’s
competence to understand the nature of the proceedings or
to
participate
in his own defense, or of his having been mentally capable
of
unlawful
intent at the time of the commission of the alleged act, or (c)
where
the
child has been detained and as an incident of detention is administered
a
physical
examination to establish his freedom from any contagious
or
infectious
conditions prejudicial to himself or others.
Practice
Book, 1963 § 1125 (1974 Sup.)..4
upon
request, the author of the report shall be present at the “dispositive” hearing
and
be
subject to cross-examination on the contents of the report.7
The
state and respondent each had already presented some evidence
with
respect
to the issues set forth in § 17-60a (2)-(4) in the course of the initial portion
of
the
transfer hearing in late June 2000. However, pursuant to a request by
respondent’s
counsel,
the transfer hearing was reconvened on October 20, 2000, to address
the
contents
of the probation investigation report. Joseph Paquin, the author of the
report,
was
sworn as a witness and questioned by counsel for the respondent and the state.
In
accordance
with the rules of practice, the respondent also had the right to
produce
witnesses
on behalf of any dispositive plan he wished to offer.8
Although
no specific
dispositive
plan was presented, the respondent did produce additional witnesses at
this
hearing.
Central
to this court’s consideration of the probation investigation report
and
assessment
of the remaining factors of § 17-60a, specifically sections (2)-(4), is
a
review
of the dispositional authority of the Juvenile Court, as set forth in
General
Statutes
(Rev. to 1975) § 17-68. Section § 17-68 provides:
Commitment.
Reports.
(a) The court, if it finds that the child is
delinquent
and needs the care, discipline or protection of the state, may
adjudge
him
delinquent and place him in the care of any institution or agency which
is
permitted
by law to care for children, order the child to remain in his own
home
or
in the custody of a relative or any other fit person subject to the
supervision
of
the probation officer or withhold or suspend execution of any judgment.
(b)
If
the court further finds that its probation services or other services available
to
the
court are not adequate for such a child, the court shall commit such child
to
the
department of children and youth services in accordance with the
provisions
of
section 17-69. (c) Any child coming within the jurisdiction of the court,
who
is
found to be mentally ill, may be committed by said court to a hospital or
other
institution
empowered by law to treat mentally ill children: and, if the
court
adjudges
a child to be delinquent and finds him to be mentally deficient, it
may
7
See
Practice Book, 1963 § 1114 (5) (1974 Sup.).
8
See
Practice Book, 1963 § 1114 (6) (1974 Sup.)..5
commit
him to an institution for mentally deficient children or
defective
delinquents.
Whenever a child adjudged by the court to be delinquent is
fourteen
years of age or older and is further found to be either mentally
deficient
or
too educationally retarded to benefit from continued school attendance,
the
court
may order him to be placed on vocational probation if such court
finds
that
he may properly be employed for part or full time at some
useful
occupation
and that such employment would be more favorable to his
welfare
than
commitment to an institution and the probation officer shall supervise
such
employment.
For the purposes of this section the limitations of subsection
(a)
of
section 31-23 on the employment of minors under the age of sixteen
years
shall
not apply for the duration of such vocational probation. (d) Whenever
the
juvenile
court commits a child to the department of children and youth
services
or
to any institution, public or private, there shall be delivered with the
mittimus
a
copy of the results of the investigations made as required by section
17-66.
The
court may, at any time, require from the department, person, institution
or
agency
in whose care a child has been placed such report as to such child
and
his
treatment as it may direct.
Section
17-68 presents a range of dispositional alternatives for an
adjudicated
delinquent.
Pursuant to the provisions of the transfer statute, § 17-60a, this court must
,
however,
narrowly focus on the availability and suitability of state
institutions
“designed
for the care and treatment of children” to which the Juvenile Court
has
authority
to “commit such child.”9
Commitments
are the most restrictive of the
available
dispositional alternatives in the juvenile system.10
Sections
17-68 (b) and (c)
essentially
provide the only two possible commitment options in a delinquency
matter.
Upon
commitment to the department of children and youth services
(DCYS)
under
§ 17-68(b),11
said
department then places the child in the appropriate state
institution.
Any such commitment of a delinquent child 12
to
DCYS would be for an
indeterminate
time up to a maximum of two years, with the possibility of an
extension
9
See
General Statutes (Rev. to 1975) § 17-60a.
10
See
generally In re Tyvonne M., 211 Conn 151, 159, 166, 558 A.2d 661
(1989).
11
The
department of children and youth services is now known as the
department
of
children and families (DCF).
12
See
footnotes 1 and 4..6
of
the commitment for an additional period of not more than two years.13
Consistent
therewith,
Judith Kallen, the Program Director of the Bridgeport office of
the
department
of children and families, testified that the licensing regulations of
the
department
prohibit placement of anyone over the age of eighteen, either on a
custodial
or
non-custodial basis. The respondent’s age forecloses a commitment by the
Juvenile
Court
to the department.
The
remaining commitment alternative under § 17-68 (c) provides for
the
commitment
of a child directly to a hospital or other appropriate institution for
an
indefinite
time,14
if
the child is found by the court to be mentally ill or a
mentally
deficient
delinquent 15
who
would require, for his protection or for the protection of
others,
special care, supervision and control.16
The
issue of mental illness was never
raised
at any time by the respondent. Nothing approaching the above specified level
of
mental
deficiency was ever articulated or expressed. In fact, the witnesses presented
by
the
respondent essentially testified to the contrary when they referenced
the
respondent’s
past diagnoses of, and treatment for, dyslexia and substance
abuse.
Moreover,
they opined that the respondent was neither dangerous nor a threat to
the
community.
Accordingly, based on the respondent’s age in conjunction with the
lack
of
evidence of mental illness and/or mental deficiency, neither commitment option
is
available
or appropriate in this matter.
From
the evidence presented, this court finds that there is no available
or
suitable
state institution designed for the care and treatment of children to which
the
13
See
General Statutes (Rev. to 1975) § 17-69(a)-(b).
14
See
General Statutes (Rev. to 1975) § 17-69(c).
15
See
General Statutes (Rev. to 1975) § 17-53.
16
See
General Statutes (Rev. to 1975) § 17-53..7
Juvenile
Court could commit the, now forty year old, respondent that would be
suitable
for
his care and treatment, should he be adjudicated delinquent for the murder
of
Martha
Moxley. This court further finds that the facilities of the adult criminal
division
of
the Superior Court afford and provide a more effective setting for the
disposition of
this
case, and the institutions to which the adult criminal division of the Superior
Court
may
sentence a defendant are more suitable for the care and treatment of
this
respondent,
should he be found guilty of the murder of Martha Moxley.
Therefore,
this matter is transferred to the adult criminal division of the
Superior
Court
for the judicial district of Stamford-Norwalk at Stamford. Although, in
1975,
this
judicial district did not handle criminal matters, effective October 1, 1981,
criminal
jurisdiction
was officially established in the judicial district of
Stamford-Norwalk.17
This
district is the most appropriate venue 18
at
this time in that the murder of Martha
Moxley
was committed in the town of Greenwich, which falls within the
judicial
district
of Stamford-Norwalk.
Lastly,
this court takes no action with respect to the respondent’s motion
to
dismiss,
filed June 20, 2000, as it is based upon a challenge to a statute of
limitations
provided
in General Statutes (Rev. to 1975) § 54-193, and is therefore
premature.
Section
54-193 was enacted as part of title 54 of the General Statutes, which
governs
criminal
procedure.19
The
language of the statute, upon which the respondent relies,
17
See
Public Act No. 81-303, entitled “An Act Establishing Criminal
Jurisdiction
In
The Judicial District of Stamford-Norwalk,” which was codified at General
Statutes
§
51-344.
18
See
1 Wharton, Criminal Procedure, (13 th
Ed.
Torcia 1989) § 34, p. 183(“[i..n
essence,
venue means the neighborhood from which jurors are to be selected, and
the
neighborhood
is ordinarily the place where the crime was committed”).
19
See
In re Jose M., 30 Conn. App. 381, 392, 620 A.2d 804 cert. denied,
225
Conn.
921, 625 A.2d 821 (1993)..8
applies
only to a criminal prosecution, which prosecution would begin with the filing
of
a
charge in the adult division of the Superior Court. By contrast, a “child”
charged as a
delinquent
is neither prosecuted nor stands trial for an offense until effectuation of
a
transfer
to the regular docket of the adult criminal division of the Superior
Court.20
______________________________
DENNIS,
J
20 See In re Prudencio O., 229 Conn. 691, 698-699, 643 A.2d 265 (1994).