Shaheem P.1 v.  1William Carbone et al. (2010)

CORRECTED MEMORANDUM OF DECISION ²

The petitioner, a minor child accused of several delinquent acts, has petitioned the court for a writ of habeas corpus seeking release from detention.   She is now being held and confined in the Hartford juvenile detention center at 117 Washington Street, Hartford by authority of the named respondents, the director of the Court Support Services Division of the Judicial Branch and the program director of the Washington Street female detention center.

The petitioner claims that her current confinement is illegal because she was detained without a finding of probable cause as required by Practice Book Sections 30-5(b), 30-6, 30-10(a) and General Statutes § 46b-133(d).

This matter was properly filed in the civil division for the judicial district of Hartford at Hartford and referred to the juvenile division for hearing.   It remains a civil proceeding.

An immediate trial, at petitioner's request, was held on October 8, 2010.   Both respondents were properly served and were represented by the office of the state's attorney for the Hartford judicial district.

The petitioner was represented by her special public defender.   Both sides introduced documents into evidence, but offered no testimony.   The petitioner introduced one exhibit, the transcript of the petitioner's plea and detention hearing on October 1, 2010.   The respondents offered three exhibits:  a copy of the court's order of detention dated October 1, 2010, and two sets of documents containing, for each of the petitioner's two cases, a copy of the juvenile summons, the delinquency petition and the sworn police report reflecting the basis for the petitioner's referral to juvenile court.   These referrals are for two separate incidents:  one occurring on or about June 2, 2010 which resulted in a disorderly conduct charge, and a second occurring on or about September 10, 2010, which resulted in a charge of breach of the peace in the second degree.³  The set of documents relative to the June incident (Exhibit C) also contains a copy of a discharge summary from the Hartford juvenile review board (JRB).  The court also heard counsel's arguments at the conclusion of the hearing.

FINDINGS OF FACT

The court, having reviewed all of the exhibits introduced and considered the arguments of counsel, makes the following findings of fact:

On October 1, 2010, the court (Wollenberg, J.) conducted a delinquency plea hearing pursuant to Practice Book Section 30a-1.   The petitioner and her mother appeared without counsel to enter pleas with respect to her two delinquency files.   One file, docket number DO 00002507822, accused the petitioner of committing a breach of the peace in the second degree on or about September 14, 2010.   Petitioner and her mother, K.L., had been served with a summons by a Hartford police officer on September 14, 2010, to appear and plead to this charge on October 1. The other file, Docket number DO 00002510030, charged the petitioner with disorderly conduct on or about June 2, 2010.   In that matter, the initial plea hearing date for which the petitioner and her mother were noticed was June 14, 2010, but the matter had been diverted from court to the Hartford JRB. Due to the petitioner's new arrest in September, the petitioner was discharged from the JRB. The first case referred to the JRB was then restored to the juvenile docket and scheduled to coincide with the petitioner's appearance for her September charge on October 1.

At the beginning of the hearing, the prosecutor, Senior Assistant State's Attorney Jessie Bennett, advised the court that she would be requesting that the petitioner be placed in detention.   The court inquired as to why the petitioner was not represented by counsel and if an application for the public defender had been made.   The marshal informed the court that the family had elected not to apply for counsel and would appear “pro se.”

After the court informed the mother that an order of detention was being sought by the prosecution, the mother said she would hire a private attorney.   The court then informed the mother that he was reading “what seems to have happened here,” and asks for a moment.   When the court finished reading, a colloquy occurs with the mother, who indicates to the court that the petitioner admitted she was involved in a fight.

At that point, the court insisted that an attorney be present for the petitioner.   Attorney Michael Walker, the supervisory public defender for the Hartford juvenile court, appeared and advised the court that the mother had told his staff earlier she wished to either hire private counsel or go “pro se.”   At this point, the mother inquired, “What does ‘pro se’ mean?”   Mr. Walker responded, “That you are going to be representing yourself.”   Mother then responded, “She didn't tell me that ․ she just said, go upstairs, she tore the paper up and say, go upstairs, because I'm trying to say, explain to me what's going on.   I was trying to say to her, explain to me what's going on, what's she been charged for.” ⁴

After this discussion, the court passed the case briefly so mother could reapply for the services of the public defender for her daughter.   When the matter was recalled, Attorney Joshua Michtom, an assistant public defender, advised the court that the family met the qualifications for the services of a public defender, and the public defender was appointed.⁵  Next, the court informed all present that it had read the two police reports.

Exhibit B, which contains the report relevant to the alleged disorderly conduct which occurred on or about June 2, 2010, describes a fight between the petitioner and another girl at the Rawson School in Hartford.   The report indicates the petitioner admitted to fighting with another girl.   Exhibit C, which contains the report relevant to the alleged breach of peace which occurred on or about September 14, 2010, indicates that four female students at the Rawson School recently had filed written complaints regarding bullying incidents by the petitioner that included “shouting obscenities,” “pointing her finger in their faces,” and “attempting to instigate fights.”   The September report refers to the petitioner's “bullying” of other students.

After the petitioner was appointed counsel, the court advised her of her rights, and she entered a pro forma denial as a plea to the charge in each file.   Bennett then requested that the petitioner be detained, noting that as the court could see from the two police reports, “this” is a “bullying incident.”

Attorney Michtom then argued at length against detaining the petitioner.   Michtom's presentation included the citation of several factors mitigating against a detention order and an argument on probable cause as to the breach of the peace charge because the victims and a specific date were unidentified in the report.   He did not make any argument on probable cause as to the disorderly conduct charge.   During the course of this argument, the court direct his attention to a paragraph in the September police report where mother expresses frustration with the petitioner's behavior and indicates maybe her daughter would learn if she were locked up.

At the conclusion of Attorney Michtom's argument, the court ordered the petitioner remanded on the basis of “Ground B.” ⁶ The petitioner's mother asked to be heard, and offered several excuses to avoid her daughter's detention.   The court listened, and then further explained, referencing Attorney Bennet's initial characterization of the petitioner's behavior, “․ And yet she's a bully, and she just wants her way.”

After the hearing was concluded, the court signed an Order of Detention, form number JD-JM-9.   That order, in pertinent part, reads as follows:  “The Court has found that there is Probable Cause to detain the child named above, and that there is no less restrictive alternative available.⁷  The Court ordered that the child be remanded immediately to the care and physical custody of the Juvenile Detention Superintendent ․” A detention review date was set for October 15, 2010, in accordance with the statute that requires a review of the case of any detained child at least once every 15 days.⁸

DISCUSSION

Despite the existence of the order signed by Judge Wollenberg indicating he had found probable cause, the petitioner argues that Judge Wollenberg must specifically state on the record that he had found probable cause.   This argument exalts form over substance.

“A finding of probable cause is not an adjudication of guilt.”  In re Juvenile Appeal (85-AB), 195 Conn. 303, 325 (Parskey, J., dissenting) (1985).   It is merely a determination that there is enough indication of the defendant's involvement in the commission of the offense charged such that [she] ought to stand trial.

The formality of a full evidentiary, adversary hearing to determine whether or not there is probable cause to believe a delinquent or criminal act has been committed is not required to satisfy constitutional requirements for custodial detention.  Gersein v. Pugh, 420 U.S. 103 (1975);  State v. McMillan, 51 Conn.App. 676, 682 (1999);  State v. Middleton, 20 Conn.App. 321, 328-30 (1989).   In Gerstein v. Pugh, the Supreme Court held that the fourth amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest.   A probable cause determination may be made in conjunction with a bail hearing or arraignment, but must be made within 48 hours of arrest.  County of Riverside v. McLaughlin, 500 U.S. 44 (1991).   Otherwise, the defendant must be released.

A detention hearing is tantamount to a bail related hearing in adult court, which requires a “need for expeditious assumption of judicial control ․” (Citations omitted).  State v. Fernando, 294 Conn. 1, 19, (2009);  State v. Doe, 46 Conn.Sup. 598, 609 (2000).   See also In re Ralph M., 211 Conn 289, 307 (“the absence of any language in [General Statutes] § 46b-127 confining the court to the rules of evidence in a hearing to determine probable cause at the transfer stage of [the juvenile court] proceedings is a compelling indication that strict evidentiary standards were not to intended to apply in such a proceeding”).

Delinquency detention hearings are governed by General Statutes § 46b-133, subsections (b) and (d), and Practice Book §§ 30-5 through 30-10.   Section 30-5 states, “No child shall be held in detention unless it appears from the available facts that there is probable cause to believe that the child is responsible for the acts alleged ․” Section 30-9 contemplates an expedited probable cause hearing prior to the issuance of an order of detention.   The judicial authority “may consider any information which is material and relevant to the issue of detention.   Probable cause may be proven by sworn affidavit in lieu of testimony.”   Even the probation officer can offer information.  “Direct access” to the reports, including sworn police affidavits, or the “quotation or summation by the judicial authority of what findings in the reports entered into its decision,” suffice.  (Emphasis added.)   A quotation or summation only is required where the judicial authority withholds any reports from counsel because it finds that the availability of any materials would be psychologically destructive to the relationship between members of the child's family.   As long as written reports or other records considered by the court are made available to counsel of record, probable cause may be established solely by a review of such reports.   In that case, there is no requirement that the court make any specific factual finding on the record.

The court on October 1 met all the requirement for the issuance of an order of detention.   The statutory procedural requirements set forth in subsections 46b-133(b) and (d) are:  (1) that the court find probable cause, which in this case is indicated on the court's written order, as well as easily inferable by the totality of the circumstances of the October 1 hearing, as the court reviewed the police reports, considered the mother's statement that her daughter admitted to fighting and noted agreement with the prosecutor's characterization of the girl's behavior as “bullying;” (2) that the court find that there is no other reasonable alternative to detention, which the court indicated on its written order, subsequent to noting mother's statement in the September 14 police report that she could not control her daughter's behavior;  and (3) that a ground for detention exists, which the court found on the record and in its written order.

The legislature intended for trial courts to have considerable discretion to determine the scope of the hearing necessary prior to the initial issuance of an order of detention in a juvenile case.   Nowhere do the statutes state that the court must make its finding in any specific manner or explain it.   The petitioner has cited no authority for her claim that the court has to explicitly detail, on the record, factual findings and conclusions that there was probable cause to believe she had committed the delinquent acts alleged.   Moreover, in this case, the court actually did explain to the mother, in response to her inquiry, that her daughter was acting in a bullying manner.   Further, there was compliance with the rule in Practice Book § 30-9 that counsel have access to the reports on which the court relied, which occurred here because both counsel refer to the police reports in their arguments to the court.

CONCLUSION

Accordingly, the court finds that the petitioner has failed to prove by a fair preponderance of the evidence that she was illegally detained.   Her petition for a writ of habeas corpus is denied and judgment may enter in favor of the respondents.

KELLER, J.

FOOTNOTES

FN2. The date of the memorandum filed on October 13, 2010 was incorrectly noted as September 13, 2010..  FN2. The date of the memorandum filed on October 13, 2010 was incorrectly noted as September 13, 2010.

FN3. The court has ordered that these exhibits in the file be placed under seal pursuant to the confidentiality protections for delinquency records contained in General Statutes § 46b-124.   See Practice Book § 1-20A(a)..  FN3. The court has ordered that these exhibits in the file be placed under seal pursuant to the confidentiality protections for delinquency records contained in General Statutes § 46b-124.   See Practice Book § 1-20A(a).

FN4. “She” apparently was a person employed by the office of the public defender to take applications for court-appointed counsel in order to determine indigency..  FN4. “She” apparently was a person employed by the office of the public defender to take applications for court-appointed counsel in order to determine indigency.

FN5. A special public defender, Attorney Trudy Condio, was later substituted as counsel for the petitioner in lieu of the regular public defender..  FN5. A special public defender, Attorney Trudy Condio, was later substituted as counsel for the petitioner in lieu of the regular public defender.

FN6. General Statutes § 46b-133(d) states, in pertinent part, “No child shall be ․ held in detention pursuant to a court order unless it appears from the available facts that there is probable cause to believe that the child has committed the acts alleged and that there is (2) a strong probability that the child will commit or attempt to commit other offenses injurious to him or to the community before court disposition ․” This second ground under subsection (2) is listed as Ground B on the order of detention form;  hence the common parlance is to refer to the grounds with alphabetical terms..  FN6. General Statutes § 46b-133(d) states, in pertinent part, “No child shall be ․ held in detention pursuant to a court order unless it appears from the available facts that there is probable cause to believe that the child has committed the acts alleged and that there is (2) a strong probability that the child will commit or attempt to commit other offenses injurious to him or to the community before court disposition ․” This second ground under subsection (2) is listed as Ground B on the order of detention form;  hence the common parlance is to refer to the grounds with alphabetical terms.

FN7. General Statutes § 46b-133(b) states, “If detention becomes necessary, such detention shall be in the manner prescribed by this chapter, provided the child shall be placed in the least restrictive environment possible in a manner consistent with public safety.”.  FN7. General Statutes § 46b-133(b) states, “If detention becomes necessary, such detention shall be in the manner prescribed by this chapter, provided the child shall be placed in the least restrictive environment possible in a manner consistent with public safety.”

FN8. See Practice Book § 30-10(b)..  FN8. See Practice Book § 30-10(b).

Keller, Christine E., J.