Supreme Court of Wyoming

Supreme Court of Wyoming.

Deborah Ann JAHNKE, Appellant (Defendant),

The STATE of Wyoming, Appellee (Plaintiff).�

No. 83-121.�

Dec. 12, 1984.

�� Defendant was convicted in the District Court, Laramie County, Joseph F. Maier, J., of aiding and abetting voluntary manslaughter, and sentenced to not less than three nor more than eight years in penitentiary.� Defendant appealed.� The Supreme Court, Thomas, J., held that:� (1) trial court properly gave instruction on lesser included offense of aiding and abetting voluntary manslaughter;� (2) evidence was sufficient to support giving of lesser included offense instructions on charge of aiding and abetting voluntary manslaughter;� (3) evidence at suppression hearing was sufficient to support finding that under the totality of the circumstances, defendant made a voluntary, knowing and intelligent waiver of her rights prior to being questioned by police;� (4) failure of arresting officer to notify defendant's mother that defendant had been arrested did not render defendant's statement inadmissible;� (5) defendant was not prejudiced by being charged initially in district court even if she had right to be charged initially in the juvenile court;� and (6) sentence did not violate constitutional provision that penal code be framed on principles of reformation and prevention.

�� Affirmed.

�� Rooney, C.J., filed concurring opinion.

�� Brown, J., filed specially concurring opinion.

�� Cardine, J., filed dissenting opinion in which Rose, J., joined.

�

�� Terry W. Mackey and Robert W. Tiedeken of Terry W. Mackey, P.C., and Jeff Brinkerhoff, Legal Intern for Terry W. Mackey, P.C., Cheyenne, for appellant.

�� A.G. McClintock, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., John W. Renneisen, Sr. Asst. Atty. Gen., Dennis C. Cook, Asst. Atty. Gen., Thomas J. Carroll, Dist. Atty., and Jon Forwood, Deputy Dist. Atty., Laramie County, for appellee.

�� Before ROONEY, C.J., and THOMAS, ROSE, BROWN and CARDINE, JJ.

�� THOMAS, Justice.

�

�� The critical question to be resolved in this case is whether voluntary manslaughter is a lesser-included offense when the charged offense is murder in the first degree;� more specifically, whether the offense of aiding and abetting voluntary manslaughter is a lesser-included offense of aiding and abetting first degree murder.� Other issues presented relate to the denial of the suppression of the teenage defendant's statement to sheriff's officers;� the constitutionality of vesting discretion in the prosecuting attorney to determine whether charges should be filed in juvenile court or in the district court where the defendant is treated as an adult;� and the legality of the sentence imposed when appraised in the light of the state constitution.

�� Deborah Ann Jahnke was charged by Information with aiding and abetting her brother in the first degree murder of their father, and with conspiracy to commit first degree murder.� (FN1)� A motion to transfer the case from district court, where Deborah Jahnke was charged as an adult, to juvenile court was denied.� At her trial the district

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court admitted her statement to the officers of the sheriff's department into evidence and instructed on the lesser-included offense of aiding and abetting voluntary manslaughter.� After her conviction of aiding and abetting voluntary manslaughter and her acquittal of other charges the district court sentenced her to serve not less than three nor more than eight years in the Women's Correctional Center.� We affirm the district court.

�� The facts surrounding the killing of the Jahnke children's father have been reviewed in the case of Jahnke v. State, Wyo., 682 P.2d 991 (1984).� They can be reiterated briefly.� Following years of both physical and psychological abuse of the children by the father, matters came to a head on the evening of November 16, 1982.� After an altercation between the deceased father, Richard Chester Jahnke, and Deborah Jahnke's brother, Richard John Jahnke,

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which included the father's striking the brother with his fists, the Jahnke children's parents went out to dinner.� While they were gone Richard made elaborate preparations for confronting his father.� These preparations included loading firearms and placing them at several "back-up" locations throughout the house;� putting the family pets in the basement for their safety;� and waiting in a darkened garage with a shotgun loaded with slugs for the parents to return.� When the parents did return Richard Jahnke shot six times through the garage door, with four of the slugs striking the father and killing him almost instantly.

�� Deborah Ann Jahnke's role in these events began on that evening when she observed the assault upon her brother, Richard, and heard her father tell her brother, "We're going to get rid of you, we don't know how we're going to, but we're going to get rid of you."�� Deborah Jahnke stated that where her brother went she also went, but she was rebuffed by the father, who told her, "Shut up, you slut" and sent her back into her own room.� From her bedroom Deborah Jahnke heard the events of still another verbal and physical assault upon the brother.� Just before the parents left, the father returned to the house and shoved the brother, Richard, against the wall, stating "I'm really disgusted with the shit you turned out to be.� I don't want you to be here when I get back."

�� Deborah Jahnke watched as her brother changed the ammunition in a modified .12 gauge shotgun, the death weapon, from what their father referred to as "candy-cane mix" to the fatal slugs.� While the brother, Richard, was placing loaded weapons in "back-up" positions in the family room and the basement, he told Deborah to get her shoes on because he wanted to get her out of the house before the parents returned.� Deborah put her shoes on, but she made no further preparations to leave because she began experiencing feelings of guilt about leaving her brother there alone.� She decided not to leave but that instead she would stay to help her brother.

�� After this decision Richard demonstrated the use of two of the weapons, a 30.06 rifle in the basement and an M-1 carbine, to Deborah.� Deborah explained that the M-1 carbine was selected for her to use because it kicked less than the other weapons.� Other preparations made by the Jahnke children included turning on a number of lights in the house for the purpose of creating temporary night blindness for the father if he was able to enter the house;� shutting off most of the exterior lights with the exception of those which illuminated the driveway outside of the garage;� and placing the family pets in the basement to prevent them from being harmed or getting in the way.� These latter two steps were accomplished at Deborah's suggestion.� Deborah stated that she perceived her role as a type of backup in the event something went wrong.

�� After Richard had stationed himself at his place of waiting in the garage, appellant on one occasion went into the garage and was escorted back into the family room by her brother, who told her to stay away.� As he was returning to the garage Deborah asked Richard whether he intended to kill their mother also.� Richard testified that Deborah was upset when he told her, "no," and she asked him to kill "Mom."

�� The parents returned at approximately 6:15 p.m., and as the father approached the garage from his parked vehicle Richard fired the fatal shots.� In the statement that she furnished, Deborah said that she knew Richard was angry and would do something.� She thought he would be active, but she did not expect "that he would just, you know, blow my father away."�� She heard the shots from the garage and wondered whether she should pick up the M-1 carbine.� While trying to decide whether to grab the weapon, Deborah heard footsteps and her brother came down the hall from the garage area.� Deborah ascertained that her mother was not shot, and went into her room, shut off her stereo, obtained a coat and book, and then fled with Richard through an open window from the master bedroom.� They separated soon after they

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left the house, and she went out into the hills and plains adjacent to their home.

�� After fleeing the house, Deborah proceeded toward a shopping mall, and from there to the area of a roller rink, where she spoke with two of her friends.� She then went to the clubhouse of a large apartment complex, where she spent the night.� When she awoke the next morning she borrowed a newspaper from the doorway of one of the apartments.� She read the article about the events of the prior evening, replaced the newspaper, and went from the apartment complex to a nearby park which she was seen entering at about 6:30 a.m.� Then Deborah was picked up by a deputy sheriff, and she agreed to accompany the sheriff's officers to their office to talk.

�� Two days after the father's death, on November 18, 1982, a formal complaint was filed charging Deborah Jahnke with aiding and abetting her brother, Richard, in the commission of first degree murder and with conspiracy to commit first degree murder.� She appeared before a county court judge and waived her right to a preliminary hearing, and she was bound over to the district court.� On December 1, 1982, the Information, charging the same offenses as those included in the complaint, was filed in the district court.� Deborah Jahnke was arraigned on December 3, 1982, at which time she entered pleas of not guilty to both counts of the Information.� A Motion to Transfer to Juvenile Court System was filed on her behalf, and following a hearing this motion was denied on February 23, 1983.� Deborah Jahnke also presented a motion to suppress her statements, which was denied after the court found those statements to have been obtained after a knowing, intelligent and voluntary waiver of her right to remain silent.

�� The trial in this case began on March 7, 1983, three weeks after the trial in the case of the brother, Richard.� Following the close of the evidence the district court did instruct the jury on the lesser-included offense of aiding and abetting voluntary manslaughter.� On March 10, 1983, the jury returned its verdict, finding the appellant guilty of the offense of aiding and abetting voluntary manslaughter and acquitting her of the other charges.� The Judgment and Sentence on that verdict was entered on May 23, 1983.� Deborah Jahnke was sentenced to serve not less than three nor more than eight years in the Women's Correctional Center for her participation in the patricide.� Additional facts essential to the justification of our disposition of the appeal will be presented in connection with the discussion of the several issues.

�

BROWN, J., specially concurring.

�� The Jahnke cases are reminiscent of the apocryphal accused who murdered his parents and then appealed to the court for mercy because he was an orphan.� The news media latched on to these cases and carried a preposterous story of self-defense to the public with missionary zeal.

�� The court's opinions here and in Jahnke v. State, Wyo., 682 P.2d 991 (1984), describe the elaborate plans made for the execution of the senior Mr. Jahnke.� I do not recall that the newspapers said much about those elaborate plans.� They delineated only a few circumstances surrounding the killing, then like a "refiner's fire and Fuller's soap" purified and sanctified Richard and Deborah Jahnke, who emerged heroes, worthy of praise.� We have witnessed a remarkable feat of image building.� The Richard Jahnke and Deborah Jahnke perceived by the public are an invention of the news media, and bear little resemblance to the persons who executed and aided in executing their father.� The news media should bear a heavy burden for what they have done.

�� Juries and courts in this state will not buy into any story of self-defense as justifiable homicide when it is so patently unbelievable.� Richard Jahnke, according to a jury of twelve citizens, was culpable.� Deborah Jahnke was no less culpable than Richard.� She did not pull the trigger, but she participated in the planning and was a

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backup if Richard failed in the execution.� In one sense Deborah Jahnke was more culpable than Richard;� she wanted to kill the mother also.

�

CARDINE, Justice, dissenting, with whom ROSE, Justice, joins.

�� Sixteen-year-old Richard Jahnke shot and killed his father in the driveway leading to the family home.� His sister, Deborah Jahnke, then seventeen years of age, was in the living room at the time.� Immediately after the shooting she and her brother fled the home, then separated.� Deborah wandered aimlessly until she found a vacant building where she stayed the night.� The next morning, at approximately 6:30 a.m., she was apprehended at Frontier Park in Cheyenne, Wyoming.� She was taken to the sheriff's office where she was isolated and held incommunicado although her mother was in the outer room asking to see her and one of her teachers called repeatedly asking to see her.� She was in custody for four hours and interrogated for about three of those hours by two officers who ultimately secured her tape-recorded statement.� Upon completion of her statement, she was placed in jail and charged with aiding and abetting first-degree murder.� The taking of her statement and the testimony relating to the statement were critical to the State's case and Deborah's conviction of aiding and abetting voluntary manslaughter.

�� It is surprising how often good, honest men, acting in utmost good faith, can look at the same facts and circumstances and see them so differently.� Thus, some of my brothers on the court see Deborah as a mature, intelligent, knowledgeable, mentally

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�alert and sound, capable child who knowingly confessed to aiding and abetting manslaughter.� I see Deborah as a frightened child who, after a lifetime of beatings, abuse, molestation, and humiliation, had been so affected mentally that at various times she was in a severe state of depression, frightened, contemplated suicide, was out of touch with reality, fantasized, and was frequently unable to rationally control her emotions.

�� The reasons for providing that special provision should be made for protecting the constitutional rights of children are illustrated so clearly by the facts of this case.� Let us examine the record.� Dr. MacDonald, testifying at the suppression hearing, found Deborah having, " * * * an almost unbelievable history of parental abuse, including sexual assaults upon her * * *."�� He testified at the hearing on the motion to suppress her statement that she was beaten by her father as far back as she could remember, somewhere around the age of four and that the beatings took place about twice a week until she was thirteen years of age.� After the age of thirteen, she was beaten once a week.� Her father would punch her, grab hold of her hair, throw her against the wall and shake her so that her head was bobbing back against the wall.� She was beaten for failing to spell her name correctly on her lunch sack, for leaving crayons laying around, for making noise, for not cleaning her room, or for being disrespectful to her mother.� She was beaten with a belt, shoes, with fists, hands, and a paddle.� She would have welts and bruises and black marks on her arms and head.� She has memories of her brother and mother being beaten, of her father kneeling on her mother's head and her mother pleading and sobbing and her father beating her with his fists and saying "I'll give you something to complain about."

�� Maria Jahnke testified that her husband was violent and became enraged over little things.� She begged him not to beat the children because they were small, but he would go into a rage, grab her, shove her against the wall and the furniture and beat her.� When Deborah was four years old, he beat her with a strap;� but when the children were older, he beat them with his fists. �Mrs. Jahnke testified that in Phoenix, Arizona, he pinned her down on the couch, and

" * * * hit me on the sides of my face.� He was like a madman.� And I know Richard, he was small, and he came into the room and said, 'Please leave my mother alone.'�� And then he went after him.

� * * *

�* * *

"And he let go of me and then he went after him in the living room, and at that time I could hear that he was punching him."

�� And, with respect to Deborah, Mrs. Jahnke testified, if she didn't brush her teeth correctly, he would explode and, "he would grab her by the hair and go into the bathroom and brush her teeth for her and scrub her face," until, as Deborah stated, they would bleed and she had trouble eating.

�� How had this kind of abuse affected her?�� What was her mental state when she was taken into custody at Frontier Park and during interrogation?�� Deborah talked frequently to one of her high school teachers who said to her:

"There is something about you and what I think it is, there is a very big conflict between what you show on the outside and what you really feel on the inside."

�� The teacher testified that,

"She told me that things were horrible at home, mostly in terms of her father.

� * * *

�* * *

"I asked her if there was physical abuse and she said yes.

� * * *

�* * *

"[S]he was so dramatic with her friends and loud.� She had a laughter which is not a laughter at all;� it's a not so loud scream, a hysteria.� She would go into uncontrolled laughter and the students

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would roll their eyes and say what is the deal here.

� * * *

�* * *

"I told her that I thought she needed some counseling.� She said everybody always wants me to have counseling.� * * *� '[E]verybody thinks I am insane.'� 'I don't think you're insane.� I just think you need to find some way to tie up the loose ends together.� You are really fragmented.' "

�� Then finally, between 1:00 and 2:00 o'clock November 16, 1982, the afternoon of the day Richard Jahnke shot and killed his father, this teacher said to Deborah, "I have got enough time.� * * *�� You have got to have counseling,you're about to explode.�� She did not resist.� We walked in to see [the counselor]."� (Emphasis added.)

�� When the deputy sheriff took Deborah into custody the next morning at approximately 6:30 a.m., she said she was sleepy.� The deputy observed that she appeared tired and her hair was not combed.

�� At the sheriff's office, in the interrogation room at 7:00 o'clock that morning, Deborah told the deputy she was scared.� He noted that she was speaking with an English accent, but she said he was the one with the accent.� (She often fantasized she was from Ireland and spoke with an accent.)�� A witness testified:

"[S]he tells people that she was born in Ireland.� She has been in Ireland but never got off the airplane, and she effects what I think she thinks is an Irish accent."

�� Then she was read her "Miranda rights" and signed a standard form waiver of those rights.

�� At the time the officers were concluding her interrogation that morning, there was a question about whether she might be suicidal.� The deputy who conducted the interrogation testified:

"At approximately 10:30 that morning after she was placed under arrest, I did have a question by one of the jailers--I don't recall who--as to the effect that she might be suicidal.� And as I indicated, I did not know.� They were trying to determine whether she should be placed under watch--place a watch on her while she was staying in the sheriff's office.� I indicated it might not hurt to have somebody periodically watch her."

�� A psychologist from the Southeast Wyoming Mental Health Center was immediately called and interviewed Deborah at the jail.� He found her emotionally unstable and recommended that she be continued under a twenty-four hour surveillance.� He concluded that she would have been incapable of knowingly and intelligently waiving her rights because of her fantasies and romanticizing, because she was frightened, tired, without sleep, needed a tremendous amount of reassurance and her general instability would have prevented her from doing that.

�� Here, then, was a scared little girl, fragmented, out of touch with reality, frequently fantasizing, who in the interrogation room was speaking with an "English accent," and who appeared suicidal to the extent that a psychologist from the mental health center was called and interviewed her shortly after the interrogation ended.� He was of the opinion that in her state she could not have knowingly, understandingly and intelligently waived her constitutional right to counsel and privilege against self-incrimination.

�� In Dryden v. State, Wyo., 535 P.2d 483, 491 (1975), we stated:

"The privilege against self-incrimination and the right to advice of counsel are firmly established in this state * * * [and]

� * * *

�* * *

"The question is not whether the examining officers have been 'unfair' to the accused;� it is whether the State has proved that the statements were freely made by an informed and knowledgeable accused after full and proper warning as to his constitutional rights."� (Emphasis added.)

�� To be admissible, a confession must be voluntary and that must be determined

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upon the particular facts of each case.� Mullin v. State, Wyo., 505 P.2d 305, cert. denied 414 U.S. 940, 94 S.Ct. 245, 38 L.Ed.2d 166 (1973);� Jarrett v. State, Wyo., 500 P.2d 1027 (1972).� Incommunicado custodial interrogation can result in an overpowering psychological disadvantage such that an accused will often succumb to the pressures and urgings of the interrogators.� Thus, in the interrogation of a child without counsel present or an opportunity to consult with an adult, great care is required to assure that a statement made by the child is not a product of fantasy or fright.�� Application of Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).� We have said that whether a child's statement, the product of custodial interrogation, is voluntary depends upon the facts of the particular case and that factors to be considered are age, intoxication, physical injuries, lack of parental contact, or mental trauma, any one of which would be sufficient to render the statement involuntary.� Mayer v. State, Wyo., 618 P.2d 127, 130 (1980).� Without more, I believe that Deborah's statement was not by an "informed and knowledgeable accused";� and, therefore, it was inadmissible for this reason alone.� But there is more.� It was inadmissible also for a failure to comply with the requirements of law concerning juveniles.

�� The constitution of the state of Wyoming provides in Art. 1, � 11, that "[n]o person shall be compelled to testify against himself in any criminal case * * *," and in Art. 1, � 10, that "[i]n all criminal prosecutions the accused shall have the right to defend in person and by counsel * * *."

�� Legislative enactments in effect at the time (FN1) concerning children required that law enforcement authorities advise not only the child but also his parents, guardian, or custodian of his right to counsel and to remain silent.

�� Section 14-6-206(b), W.S.1977, relating to children, provides in part:

"(b) Any person taking a child into custody shall as soon as possible notify the child's parent, guardian or custodian."

�� Section 14-6-209, W.S.1977, provides that a child detained without a court order must be afforded a hearing within 72 hours and,

"(b) At the commencement of the hearing the judge shall advise the child and his parents, guardian or custodian of:

� * * *

�* * *

"(ii) The right to counsel as provided in W.S. 14-6-222;

"(iii) The child's right to remain silent with respect to any allegations of a delinquent act;

� * * *

�* * *

"(vii) All other rights afforded a criminal defendant."� (Emphasis added.)

�� Section 14-6-222(a), W.S.1977, provides:

"(a) At their first appearance before the court the child and his parents, guardian or custodian shall be advised by the court of their right to be represented by counsel at every stage of the proceedings including appeal, and to employ counsel of their own choice."� (Emphasis added.)

�� The clear intent of the legislature in adopting these statutes is to insure that rights guaranteed by the constitution to adults are also secure for children by requiring that the child and his parents be advised of those rights.� Sections 14-6-209(b) and 14-6-222(a), W.S.1977, supra, require that the court inform both the child and his parents, guardian or custodian of the right to counsel and to remain silent but do not in specific terms impose a similar requirement upon law enforcement officials.� Does that mean the child is fair game before he gets to court;� that law enforcement officials are permitted to do what the courts are prohibited from doing, i.e., hold the child incommunicado, keep the parents at bay, not inform the parents of the right to counsel, to silence, to employ

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counsel and to consult with the child?�� If the court must advise the child and his parents of the right to counsel and to remain silent, surely law enforcement officials must do the same.� This was the holding in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), with respect to adults, the Court stating:

"Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves.� We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely.� In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored."� 86 S.Ct. at 1624.

�� The Fifth Amendment privilege and the Sixth Amendment right to counsel provided in court are protected outside of court for adults by informing the adult of those rights.� Miranda v. Arizona, supra.� By analogy, it is clear that the same rights afforded children in court must be afforded out of court by requiring that the child and his parents, guardian or custodian be advised of these rights provided by the constitution.

�� This child then, more than any other, desperately needed the help and advice of an adult to which she was entitled by statute.� Being deprived of that help and advice, her confession was inadmissible as evidence not only because it was unreliable, but also because there was no valid waiver of her right to counsel and to remain silent.� This result, i.e., that her statement be suppressed for failure to comply with the requirements of �� 14-6-206, 14-6-209, and 14-6-222, W.S.1977, supra, flows from a

" * * * deep-rooted feeling that the police must obey the law while enforcing the law;� that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves."� Spano v. People of the State of New York, 360 U.S. 315, 79 S.Ct. 1202, 1205-1206, 3 L.Ed.2d 1265 (1959).

�� I would hold, therefore, that before a child is interrogated in circumstances such as here presented, both the child and his parents, guardian or custodian must be informed of the constitutional right to remain silent, to be represented by counsel, to employ and consult with counsel, and all other rights afforded a criminal defendant both by our constitution and statutes.� This requirement will accomplish the clear intent of the legislature.� Constitutional rights guaranteed to adults will also be secure for children and not lost because the child was deprived of the counsel of an adult.

�� Protecting the constitutional rights of children by affording the help and advice of an adult is not new.� Thus, in the absence of a statute providing for consultation with an adult, a confession was held inadmissible where a seventeen-year-old defendant was subjected to a continuous stream of interrogation at a time when his mother was desperately trying to be in touch with him.� It was said that, in the course of extracting the confession, the seventeen-year-old defendant was sealed off by means of deception and trickery from the most likely avenue by which assistance of counsel might reach him.�� People v. Townsend, 33 N.Y.2d 37, 347 N.Y.S.2d 187, 300 N.E.2d 722 (1973).

�� The importance of securing for a child under interrogation, the advice and consultation of a parent, guardian, custodian or lawyer was recognized by the National Advisory Committee on Criminal Justice, Standards and Goals (1976), in the adoption of Standard 5.8 which provides in part:

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"When police are conducting a custodial investigation of an individual who is legally a juvenile, they should take care not to allow that juvenile to waive the right against self-incrimination without the advice of counsel."�� P. Hahn, The Juvenile Offender and the Law, p. 384 (2nd ed. 1978),

�� and by the Institute of Judicial Administration, American Bar Association, Juvenile Justice Standards, Standard 3.2 which provides in part:

"For some investigative procedures, greater constitutional safeguards are needed because of the vulnerability of juveniles.� Juveniles should not be permitted to waive constitutional rights on their own."�� Police Handling of Juvenile Problems, p. 6 (Ballinger Publishing Co. 1980),

�� and Standard 5.3(C), which provides:

"C. Presence of attorney.� The right to have an attorney present should be subject to knowing, intelligent waiver by the juvenile following consultation with counsel.� If the police question any arrested juvenile concerning an alleged offense in the absence of an attorney for the juvenile, no information obtained thereby or as a result of the questioning should be admissible in any proceeding."�� Release, Control, and Detention of Accused Juvenile Offenders Between Arrest and Disposition, p. 67 (Ballinger Publishing Co. 1980).

�� The standards take account of the fact, as was noted in Application of Gault, supra, 87 S.Ct. 1428, that

" '[W]e cannot believe that a lad of tender years is a match for the police in such a contest.� He needs counsel and support if he is not to become the victim first of fear, then of panic.� He needs someone on whom to lean lest the overpowering presence of the law, as he knows it, crush him.� No friend stood at the side of this 15-year-old boy as the police, working in relays, questioned him hour after hour * * *.' "� 87 S.Ct. at 1453 (quoting Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948)).

�� And later in that opinion, quoting from In the Matter of Four Youths, Nos. 28-776-J, 28-778-J, 28-783-J, 28-859-J, Juvenile Court of the District of Columbia, April 7, 1961, the Court noted that statements of children are generally untrustworthy:

" '[T]he Court's decision * * * rests upon the considered opinion--after nearly four busy years on the Juvenile Court bench during which the testimony of thousands of such juveniles has been heard--that the statements of adolescents under 18 years of age who are arrested and charged with violations of law are frequently untrustworthy and often distort the truth.' "� 87 S.Ct. at 1458.

�� Our sister state of Colorado recently adopted a statute which provides that statements or admissions of a child are not admissible against that child unless a parent, guardian, or legal custodian of the child is present and advised of the child's right to remain silent, to be represented by counsel, to have counsel present, to have counsel appointed, unless the public defender or counsel is representing the child and present at the time.� People v. Maes, 194 Colo. 235, 571 P.2d 305 (1977).

�� After the adoption of legislation providing that a statement of a child over the age of sixteen years is inadmissible unless a good-faith effort is made to notify the parent, guardian or custodian of the child of certain rights including the right to visit and confer with the child, it was held that notifying a parent that a child was in custody, without more, did not meet the good-faith requirements of the statute and the statement was suppressed.�� State v. Walker, Iowa, 352 N.W.2d 239 (1984).

�� The legislature in our state has wisely adopted legislation requiring that both the child and his parents, guardian or custodian be informed of the right to counsel, the right to remain silent, and other constitutional rights afforded criminal defendants.

�� In this case Deborah's mother was not advised before interrogation of her daughter's right to counsel or right to remain

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silent.� Thus, the interrogating deputy was asked:

"Q. Did you tell her parents or an attorney or some other person responsible for Miss Jahnke about [her being in custody]?

"A. No, sir.�

"Q. Did you cause that to be done?�

"A. No, sir, I did not.�

"Q. To your knowledge, was it done by anyone?�

"A. Not to my knowledge."

�� When her teacher called the sheriff's office at 8:00 a.m. that morning, she was told:

" 'No, she is being held.� She isn't allowed to have any visitors.' "

�� And when Maria Jahnke arrived at the sheriff's office at 8:30 a.m. she was not allowed to see her daughter.� When she suggested that Deborah should have an attorney, she was told an attorney would be appointed for her.

�� Deborah's statement should have been suppressed at trial, but it was not.� Then the error was compounded, for the manner in which it was used against her was so utterly unfair and devastating that Deborah did not receive a fair trial.� When the prosecution refused to offer into evidence the transcript of her statement which the court had ruled was admissible, defense counsel stated:

"I don't know why they are afraid of the tape, Your Honor, but it is, in fact, the best evidence, and I would renew that objection that this witness' testimony is not the best evidence."

�� Where a writing is the best evidence of the matter sought to be established and the writing is available, evidence which is secondary or substitutionary should not be received.� Harned v. Credit Bureau of Gillette, Wyo., 513 P.2d 650 (1973);� Truck Terminal, Inc. v. Nielsen, 80 Wyo. 223, 339 P.2d 413 (1959).� Especially is that so when production of the original writing is essential to any accurate determination of the issues involved.� Edwards v. State, Wyo., 577 P.2d 1380 (1978).� Nevertheless, one of the interrogating officers began testifying to his opinions and conclusions about what Deborah had said in her statement.� Defense counsel renewed his objection that the statement itself was the best evidence.� The objection was overruled, the court granting counsel a continuing objection to all of the testimony of the witness.� The objection was valid.� It should have been sustained.

�� The interrogating officer first testified that he had interrogated Deborah Jahnke for an hour making notes of the interrogation before he began to take her recorded statement.� Then he turned on a tape recorder and, from the notes taken, began to take her tape-recorded statement which lasted something over one and one-half hours.� The notes made before the tape-recorded statement were shredded by the department and not available for the trial.� The interrogating officer testified that everything Deborah Jahnke said was contained in the recorded statement.� The trial court, in ruling on a defense motion, stated:

"I am at a loss to ascertain how the defendant could have in any way been prejudiced by the failure to be able to produce these [shredded] notes which were fragmentary, and all covered in any event by the taped interview * * *."

�� The recorded statement was reduced to writing and offered as an exhibit in the suppression hearing.� Since the recorded statement itself was complete, there was no reason for the court to receive the officer's opinions and conclusions about what Deborah Jahnke had said.� The statement was the best evidence and should have been all that was received in evidence.

�� The extreme prejudice in permitting the officer to paraphrase and interpret Deborah Jahnke's statement for the jury is demonstrated by comparing his testimony with excerpts from the statement:

�� Detective's testimony:

"Q. The weapons were supports.� Did she state she was to be there in any particular capacity?�

---------- 692 P.2d 939 ----------

"A. Yes, sir, she did.� She told me that her capacity that night was to be as a support, as a backup to Richard."

�� Excerpt from Deborah Jahnke's statement:

"Okay.� My intentions were just very simply, um, I'm not a violent person, the only time I would ever strike anybody or do anything like that, actively, is if it is in either self defense, or to defend somebody else.� My father, in the past, extensively, carried a firearm with him, almost wherever he went.� Or like he would have something in the glove compartment of his car and that was my concern.� Because, if my father, like I felt that he was going to chicken out, that it was a scare tactic etc., my father has a very very short temper, he's very irrational, he's very irate.� And, I, I've seen him, you know, just get hysterical over just teeny, tiny little things, you know.� And he would just get hysterical and beat up on people, you know, beat up on all three of us, my mother, and my brother and me, just over the teeniest things because he just had a bad day at work.� I thought, oh my God, what if he's armed.� What if he pulls it out on my brother, what if he shoots him.� What if he goes after me?�� At that point, definitely, yes, I would have shot him.� But only as a very last resort.� If he just came at me and he didn't have any firearms or something like that, I would have just put the weapon down and just took off you know."

�� With respect to an escape route, the detective testified:

"A. Deborah told me that she recommended to her brother that he escape through the back door, as she put it, which was between the garage and the kitchen area.� Her concern was that her brother may become trapped in the garage area, and that that would be the easiest route to travel, the easiest escape route, as she told me later."

�� Excerpt from Deborah's statement:

"[Detective]:� Did you get the impression that, uh, anytime or maybe throughout the whole, whole thing before your parents got home, that the incident that would happen would take place in the garage area?�� Was that the impression that you had?�

"D.A. Jahnke:� It didn't occur to me.�

"[Detective]:� Did he ever mention that that's where it was going to be?�

"D.A. Jahnke:� No.

"[Detective]:� Okay.� Then if I understand what you told me correctly, then, he was going, one of his ideas was to escape through the garage area?�

"D.A. Jahnke:� Maybe, I don't know."

�� And with respect to knowing her brother's intentions, the detective testified:

�� " * * * yes, she knew what her brother's intentions were that evening."

�� Deborah testified:

"[Detective]:� In regards to your brother, after your parents left to go eat, I believe you said that Richard stated something to the effect that, I have to do this.

� * * *

�* * *

"D.A. Jahnke:� Okay.� I, I interpret it as, that, well he's going to do something.� Uh, well, he's going to be active, he's actually going to do something.� I didn't think that he would just, you know, blow my father away.� But simply, that this was something, that he was, that was bothering him intensely.� Like, I remember in conversations, you know, he just, bring back all these really bad memories and things that I'd blocked out, or just choose not to remember or for whatever reasons and my brother always felt really, really bad and guilty because my father used to beat up on me.� And he used to get sexual with me too.� And I couldn't defend myself and he was like, like this high, he was younger than me, he couldn't defend me, you know.� And, it just got to the point that he just couldn't take it anymore."�

"D.A. Jahnke:� Okay, well I felt that he was playing a role, that he was playing a role and that maybe if he just went through these steps, he'd just get out all of his bad feelings and just forget about it.� Me, I was not playing a role.� I was

---------- 692 P.2d 940 ----------

torn between, I did not want to be like this, and I just said, oh my God, I just wish that I wasn't here, you know, and I told him, you know, I'm really scared.� And, you know, this is terrible, I just, this doesn't seem real.� But also I just felt kind of indebted to my brother, because he has been, he's always been very kind to me, very protective of me.� And, you know, at first saying yes and then opting out."�

"Nothing seemed real to me.� I occasionally get into a state of mind that well, you know, this is, that this isn't, you know, real, and, you know, like I'm living in a movie or something.� I felt it was a role.� That my brother was just going through these steps, you know.� I just thought, well, uh, it's something that.� It's like sometimes, children when they play.� You know, like I remember when I was little, when I used to ...

"[Detective]:� Okay, excuse me.� Were you playing a role?�

"D.A. Jahnke:� No.

"[Detective]:� Did you see it as that?�� Or were you, were you serious about what you were doing?�

"D.A. Jahnke:� I didn't know what I was doing."

�� And with respect to an agreement to kill, the detective testified as follows:

"She told me also that her brother didn't verbalize anything specifically but that there was a tacit agreement between the two of them.� She agreed with that concept."

�� Miss Jahnke's actual words in giving her statement follow.�

"D.A. Jahnke:� Okay, you know, just very simply, when he just told me that he couldn't take it anymore, he said uh, I really don't want you here, so I'll take you someplace.� I'll look for the keys.� And I put on my shoes, you know, thinking, you know, I really didn't want to be here, you know.� I didn't know what to expect.� I just felt really guilty, you know, because I'm really close to my brother.�

"[Detective]:� About, guilty about leaving him there alone?�

"D.A. Jahnke:� Leaving him there alone.

� * * *

�* * *

"[Detective]:� At that time, let me ask you okay, at that time, when he said that did you have any indication of what he had in mind or what he might do?�

"D.A. Jahnke:� No.

"[Detective]:� The reason I ask that Deborah, is because, I guess I don't understand why you would feel guilty, leaving him there to face whatever it was that you ...

� * * *

�* * *

"D.A. Jahnke:� I've, I don't know, I've always been protective of my brother, especially recently.� Like, I remember, there were these kids and we were really little going to grammer school, and they used to tease my brother and they would beat him up, you know, and I'd be there flinging them off, because I was bigger than they were, you know.�

"[Detective]:� Sounds like my sister.�

"D.A. Jahnke:� That's great, that's great you know.�

"[Detective]:� The stories I could tell you about my sister.�

"D.A. Jahnke:� But, basically, that's how I felt that if something was going to happen I should at least be there to explain what was going on, and my brother shouldn't be left all alone."� (Emphasis added.)

�� With respect to what happened being a execution, the detective testified:

"She at one time told me that it was her assessment of the entire situation for that evening, that what had happened that evening was an execution;� that's how she described it."

�� The following is from Deborah's statement:

"[Detective]:� Where you indicated that you interpreted, wait I guess I should restate this.� That you felt that your brother interpreted that action as an execution and then you had some, some other statements * * *.�

---------- 692 P.2d 941 ----------

"D.A. Jahnke:� Okay.� It's just a hypothesis, my brother did not just, did not say to me, well you know, this is an execution * * *."

�� With respect to Mrs. Jahnke, the following was said:

"[Detective]:� * * * you had asked him in reference, what about mother?�

"D.A. Jahnke:� Yeah.� And, and he said that, you know, that she was going to be okay, that he wasn't going to do anything.� Because his hostility, you know, even though she was an awful pain * * *, there is no way in the world that my brother or me would ever want to hurt her, ever."

�� With respect to Deborah fleeing after the shooting and hiding from police, the detective testified:

"I asked her why she did that.� She said she did not want to be picked up.� She did not want to be caught."

�� What Deborah told the detective in her statement was the following:

"[Detective]:� Would you at this time tell me why it was that you did not want to be picked up?�

"D.A. Jahnke:� Okay, um, it was just very simply, if I was, okay now, the police they were there within five minutes.� I didn't want to be there at that time to say my brother did it.� Also I didn't want to say that my brother did it, I didn't do anything, I'm innocent whatever, because that would be betraying him.� I felt very strongly about that.� * * * "

�� The statement is thirty pages in length.� It may be subject to different interpretations.� But, it is the province of the jury to consider and interpret the words of the statement and to resolve conflicts therein, to draw such inferences as it sees fit, to give it such weight as the jury thinks it entitled, and determine the ultimate guilt or innocence of the accused.�� Hopkinson v. State, Wyo., 632 P.2d 79 (1981), cert. denied 455 U.S. 922, 102 S.Ct. 1280, 71 L.Ed.2d 463 (1982);� Ditrich v. United States, 243 F.2d 729 (10th Cir.1957).� The jury is the finder of fact.� That is their function.� Taylor v. State, Wyo., 642 P.2d 1294 (1982);� 23A C.J.S. Criminal Law � 1118.� In this case it was grievous, prejudicial error to permit the detective to inform the jury of his opinions and conclusions of what Deborah had said in her statement.� Only the jury had a lawful right to decide the meaning of, inferences to be drawn, and effect to be given Deborah Jahnke's statement.

�� Conclusions drawn from facts are inadmissible in cases in which the normal experience and qualifications of lay jurors enable them to draw proper conclusions from those facts, and only in those cases in which such experience does not enable laymen to draw correct conclusions may experts be called upon.� Grayson v. Williams, 256 F.2d 61 (10th Cir.1958).

�� It is true that opinion testimony by an expert with specialized training and knowledge about a subject not ordinarily understood by lay persons may be admissible if the expert is qualified and his opinion would be helpful to the jury.� Krahn v. Pierce, Wyo., 485 P.2d 1021 (1971).� No one contended the detective was an expert in interpreting the meaning to be placed upon and the effect to be given the oral statement of another person.� There was no attempt to establish a foundation for the testimony, nor any attempt to satisfy the requirements of Rule 703, W.R.E., for its admission.� Neither was the testimony of the detective admissible as an opinion by a lay witness, for it is generally held that "the nonexpert witness may not give his opinions or conclusions, but must confine his testimony to a report of facts," 31 Am.Jur.2d Expert and Opinion Evidence � 14;� and where an opinion of a nonexpert witness is received, it is because it was "found necessary to admit the opinions or conclusions of nonexpert witnesses where the facts could not otherwise be adequately presented or described to the jury."�� 31 Am.Jur.2d Expert and Opinion Evidence � 14.

�� Rule 701, W.R.E., provides:

"If the witness is not testifying as an expert, his testimony in the form of opinions

---------- 692 P.2d 942 ----------

�or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue."

�� The testimony of the detective was not based upon his perception (what he saw), but upon what he heard, and a review of what Deborah actually said in response to his questions makes clear that it was not helpful to a clear understanding of her testimony.

�� In Commonwealth v. O'Dell, 392 Mass. 445, 466 N.E.2d 828 (1984), an indictment was dismissed because it resulted from the inaccurate and incomplete testimony of a detective who was asked by a juror:

" 'What about the driver, was he supposed to be involved in this thing or not?'�� The detective answered, 'We believe he was.� He was the driver of the getaway van or the car.' "� 466 N.E.2d at 830.

�� In fact, the detective's report showed that the driver had denied knowledge of the robbery;� and the court stated,

"[P]resentation of the defendant's edited statement tended to distort the meaning of that portion of the defendant's statement that was repeated * * *."� 466 N.E.2d at 830,

�� and the court found that:

"It is possible, and perhaps likely, particularly in view of the responses of the detective and the assistant district attorney to one juror's questions, that the grand jurors, being untrained in the law and uninformed that the defendant had denied having knowledge of Preston's criminal intent, incorrectly interpreted the defendant's statement as a confession that he was a willing participant in the crime.� Clearly, the defendant's full statement was not such a confession, however."� 466 N.E.2d at 830.

�� The court held it necessary to dismiss the indictment because of the impropriety of the detective's testimony.� What occurred in this case was far more serious and should result in a reversal of the judgment entered.

�� The testimony was patently inadmissible.� A proper objection was made and overruled, and that was error.� That error would not have been cured by later receiving the statement into evidence, for then the jury would be in a position of having to resolve conflicts in the detective's testimony (which was inadmissible) and the statement itself.� In any event, the statement was not received in evidence.� There was cross-examination, but that could not overcome the prejudice created by the officer's inadmissible testimony.� Finally, appellant should not have been put in the position of having to overcome inadmissible evidence.

�� The overwhelming prejudice resulting from that error is apparent.� Had the detective's testimony been excluded and the jury permitted to receive Deborah's statement as they should have after the court ruled it "admissible in evidence," they could, in considering and weighing and resolving conflicts in the evidence, have determined:� that Deborah Jahnke did not plan with her brother to kill their father;� that she did not act as a backup but was given a gun which she would have used only to defend herself;� that Richard did not need her help and wanted her to leave and was going to take her away and looked for the car keys;� that she stayed, not to help him, but because, "if something was going to happen I should at least be there to explain what was going on";� that she did not plan his escape route or load or place the guns or even know how to shoot them (with respect to the guns involved--rifles and shotguns--she said in her statement:

"And, I guess it's the one he gave to me, because, it seemed to be the smallest.� It was also the most attractive one there, probably.� And, I've never, I don't recall ever firing a rifle or a shotgun or a riot gun or anything like, related to that.");

�� that the matter of the dogs and cats and lights were Richard's ideas and, in any event, insufficient;� and finally that she was merely present when the incident occurred and was not an active participant.� We have held that mere presence at the

---------- 692 P.2d 943 ----------

scene of a crime without more is insufficient to establish guilt of the crime of aiding and abetting.� Haight v. State, Wyo., 654 P.2d 1232 (1982).� Thus, it is said that:

"The mere fact that a person with knowledge that another intends to commit a crime acquiesces in the commission will not, provided he does nothing to procure or to bring about the commission of the crime, render him an accessary before the fact.�

"The mere fact that the accused had knowledge of an intended crime on the part of another and concealed the same or failed to prevent it will not render accused an accessary before the fact.� Mere approbation of a proposed crime to be committed by another will not render one an accessary before the fact."� (Footnotes omitted.)�� 22 C.J.S. Criminal Law � 93.

�� And so the jury might have found Deborah Jahnke not guilty of any crime at all.

�� I hasten to add that even if Deborah Jahnke's statement had been put in evidence and the detective had not testified, the jury might still, under the rules adopted in the opinion of this court, have found Deborah guilty of the same crime.� But if she is to be found guilty and sentenced to prison, it ought to be in a fair trial, upon proper, legally admissible evidence;� and if she is to be convicted by words from her own mouth, they ought to be her words, not those of someone else.