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In re D.C.M.

Supreme Court of Missouri, En Banc

August 13, 2019

IN THE INTEREST OF: D.C.M., A MINOR, Appellant,
v.
PEMISCOT COUNTY JUVENILE OFFICE, Respondent.

          APPEAL FROM THE CIRCUIT COURT OF PEMISCOT COUNTY The Honorable W. Keith Currie, Judge

          MARY R. RUSSELL, JUDGE

         D.C.M. appeals a judgment of the circuit court finding he committed an act that, if committed by an adult, would have constituted the felony of making a terrorist threat in the second degree in violation of section 574.120.[1] Evidence adduced at the adjudication hearing demonstrated D.C.M. was sitting in the school cafeteria talking to another student, Jonathan, [2] when D.C.M. stated he felt like "blowing the school up" or wanted to see how it feels to "shoot the school up."

         D.C.M. argues his attorney ("Counsel") was ineffective in representing him in the juvenile proceeding by failing to investigate and call Jonathan to testify at the adjudication hearing. He also argues the circuit court abused its discretion in denying Counsel's request for a continuance to subpoena Jonathan. Finally, he argues the circuit court lacked sufficient evidence to conclude beyond a reasonable doubt that he committed an act that, if committed by an adult, would have constituted the felony of making a terrorist threat in the second degree.

         The circuit court did not abuse its discretion in denying Counsel's request for a continuance, and, further, when viewed in the light most favorable to the judgment, there was sufficient evidence for the circuit court to find beyond a reasonable doubt that D.C.M. committed an act, which, if committed by an adult, would have constituted the felony of making a terrorist threat in the second degree. The record is insufficient, however, to determine whether Counsel was ineffective. As a result, these claims cannot be addressed on direct appeal. The case is remanded to the circuit court for an evidentiary hearing to determine whether Counsel was ineffective. In all other aspects, the judgment is affirmed.

         Background

         D.C.M. was a 16-year-old high school student with autism, when the juvenile officer in Pemiscot County filed a petition against him. The petition alleged he had committed an act that, if committed by an adult, would have constituted the felony of making a terrorist threat in the second degree, and, as a result, he was subject to the jurisdiction of the juvenile division. Evidence adduced at the adjudication hearing demonstrated that D.C.M. was sitting in the high school cafeteria when another student, Tamara, overheard D.C.M. tell a classmate, Jonathan, "I feel like blowing the school up." A student named Zachary testified he heard D.C.M. say that "he wanted to see how it feels like to blow up the school and wanted - shooting up the school." Zachary further testified, "He said that he might do it tomorrow, the day - same day at - He said he's going to do it tomorrow." After hearing D.C.M.'s comments, Tamara left the cafeteria and told the school principal. The principal called the police, and the staff isolated D.C.M in a classroom until law enforcement officers arrived. Officers then took D.C.M. to the juvenile office.

         Police interviewed D.C.M., who denied making any threatening statements and said he was only joking. Police also interviewed Jonathan. The police report provided, "Jonathan stated that he did not recall [D.C.M.] making any threats or statements but that he didn't doubt it. [Jonathan] stated that [D.C.M.] has made racial comments towards other students but that he had not heard [D.C.M.] make any statements."

         The juvenile officer filed a petition, and an adjudication hearing was held 12 days later. The juvenile officer called seven witnesses: four students, a police officer, and two school principals. Two witnesses, Tamara and Zachary, testified they heard D.C.M. make the threatening statements. D.C.M. testified he did not make any threatening statements and said the other witnesses were lying. Counsel then requested a continuance to subpoena Jonathan as well as two other students, Joshua and Marcus, who were also sitting at the table with D.C.M. The juvenile officer objected, asserting Counsel had access to the police report that named all of the witnesses and, therefore, had a sufficient opportunity to obtain the witnesses' presence at the hearing. The circuit court denied the request.

         Based on the evidence presented at the adjudication hearing, the circuit court continued jurisdiction over D.C.M. and placed him in the custody of the division of youth services for an indefinite term. D.C.M. appeals.[3]

         Analysis

         I. Mootness

         D.C.M. turned 18 and was released from supervision approximately one month before the case was argued and submitted. As a result, this Court must examine whether this appeal is now moot.[4]

         Because "[m]ootness implicates the justiciability of a controversy and is a threshold issue to appellate review," this Court must consider, either on a party's motion or acting sua sponte, whether an appeal is moot. Mo. Municipal League v. State, 465 S.W.3d 904, 906 (Mo. banc 2015) (alteration in original) (quoting LeBeau v. Comm'rs of Franklin Cty, 459 S.W.3d 436, 438 (Mo. banc 2015)). "When an event occurs that makes a court's decision unnecessary or makes granting effectual relief by the court impossible, the case is moot and generally should be dismissed." State ex rel. Griffith v. Precythe, 574 S.W.3d 761, 763 (Mo. banc 2019). "A case is moot when the question presented for decision seeks a judgment upon some matter which, if the judgment was rendered, would not have any practical effect upon any then existing controversy." State ex rel. Gardner v. Boyer, 561 S.W.3d 389, 394 (Mo. banc 2018) (quoting State ex rel. Hawley v. Heagney, 523 S.W.3d 447, 450 (Mo. banc 2017)). If a case is moot, this Court can exercise its discretion to decide the case on the merits if one of two narrow exceptions to the mootness doctrine exist: "(1) when a case becomes moot after submission and argument; and (2) when the issue raised is one of general public interest and importance, recurring in nature, and will otherwise evade appellate review." State ex rel. Peters-Baker v. Round, 561 S.W.3d 380, 384-85 (Mo. banc 2018) (citations omitted).[5]

         Both D.C.M. and the State argue a decision by this Court would impact D.C.M and urge this Court to decide this case on its merits. While D.C.M. recently turned 18 and has since been released from supervision, a record of his adjudication would remain. Juvenile records for offenses that would be felonies if committed by an adult are open to the public to the extent criminal proceeding records are open to the public. Section 211.321.2(2). The offense of making a terrorist threat in the second degree is such a felony. See section 574.120.[6] The question whether an appeal of a case in which a juvenile has been released from supervision implicates the mootness doctrine is one of first impression for this Court.[7]

         In a case factually analogous to the one here, but in a criminal context, this Court addressed the merits of an adult's appeal of his conviction despite that he had been pardoned. State v. Jacobson, 152 S.W.2d 1061, 1064 (Mo. 1941). Although the pardon allowed him not to serve his sentence, the appeal was not moot because the underlying conviction remained on his record. Id. Jacobson emphasized that an individual should have the opportunity "to remove the discredit and stigma flowing from the judgment of conviction." Id. Further, if convicted of another crime in the future, Jacobson recognized the defendant would be subject to greater penalties due to his prior conviction. Id. As a result, this Court concluded the case was not moot because there was "still a substantial element of controversy existing." Id.

         As in Jacobson, D.C.M. should be given the opportunity to remove the discredit and stigma associated with his record of adjudication. Even though D.C.M. has been released from supervision, his conduct would have constituted a felony had he been an adult at the time he committed the act. If D.C.M. is tried in the future for a criminal offense, evidence of this prior juvenile adjudication could be introduced. See S.B.A., 530 S.W.3d at 620. For these reasons, this case is not moot, as addressing this appeal would have a practical effect on an existing controversy. See Gardner, 561 S.W.3d at 394. Accordingly, this Court will review the merits of the appeal.

         II. Ineffective Assistance of Counsel

         D.C.M. argues that he had a due process right to the effective assistance of counsel in his juvenile proceeding and that Counsel violated this right when he failed to investigate and call Jonathan to testify, as well as when Counsel elicited and failed to object to certain testimony. The State recognizes juveniles have a due process right to effective assistance of counsel under Missouri law but argues D.C.M. cannot raise these claims on direct appeal and, even if he could raise these claims, Counsel did not provide ineffective assistance. The issue of what procedure should be followed when reviewing ineffective assistance of counsel claims in juvenile cases is a question of law that receives de novo review. See Grado v. State, 559 S.W.3d 888, 895 (Mo. banc 2018).

         It is well-established that a child has a right to counsel at a delinquency proceeding pursuant to the Due Process Clause of the Fourteenth Amendment to the United States Constitution. In re Gault, 387 U.S. 1, 36 (1967), overruled on other grounds by Allen v. Illinois, 478 U.S. 364, 372-73 (2008); see also Rule 115.02 ("In any proceeding under subsection 1 of section 211.031, RSMo, the court shall appoint counsel for the juvenile when necessary to assure a full and fair hearing."). This right to counsel implies that counsel must be effective. Gault, 387 U.S. at 30; In re R.G., 495 S.W.2d 399, 403 (Mo. 1973). The due process right to counsel "would be hollow were there no accompanying requirement counsel be effective." Grado, 559 S.W.3d at 896.

         Despite the right to effective assistance of counsel, no statute or case from this Court provides a mechanism for a committed juvenile to raise an ineffective assistance of counsel claim. D.C.M. encourages this Court to address the claims on direct appeal. The State, on the other hand, argues direct appeal is a "suboptimal path" for juveniles to raise ineffective assistance claims, suggesting the legislature should adopt a statutory procedure or this Court should adopt a rule setting forth a procedure.

         When deciding whether claims for ineffective assistance of counsel can be addressed on direct appeal, the pertinent question is whether the record is sufficient to address the claim. Considering the sufficiency of the record when determining whether ineffective assistance of counsel claims can be addressed on direct appeal is consistent with the approach taken by this Court in termination of parental rights and sexually violent predator cases. See In re Adoption of C.M.B.R., 332 S.W.3d 793, 820 n.22 (Mo. banc 2011) (clarifying that ineffective assistance of counsel claims could be addressed on direct appeal when such claims could be sufficiently evaluated on the record), overruled on other grounds by S.S.S. v. C.V.S., 529 S.W.3d 811, 816 n.3 (Mo. banc 2017); Grado, 559 S.W.3d at 897 (addressing claim of ineffective assistance of counsel in a sexually violent predator proceeding when all claims "involve[d] counsel's actions at trial, and [were] evident on the record"). In accordance with this precedent, this Court will review the record and, if the record is sufficient, address D.C.M.'s ineffective assistance of counsel claims on direct appeal.[8]

         A claim of ineffective assistance of counsel typically cannot be addressed on direct appeal, however, when "issues are likely to arise regarding ... counsel's failure to adequately investigate or prepare for trial, or counsel's failure to pursue defenses or witnesses." Grado, 559 S.W.3d at 897 (quoting In re Carmody, 653 N.E.2d 977, 985 ( Ill. App. 1995)). In each of these scenarios, the record is likely to be incomplete with respect to the claim of ineffective assistance.

         D.C.M. alleges Counsel was ineffective for failing to investigate and call Jonathan to testify. The record is clear Jonathan was sitting next to and talking with D.C.M. when D.C.M. allegedly made the threatening statement. Despite having access to the police report detailing Jonathan's interview with the police, Counsel called no witnesses other than D.C.M. and was unaware that Jonathan was a potential witness until the day of the hearing, indicating Counsel failed to consider the police report. When asking for a continuance to subpoena Jonathan as well as two other students sitting at the table with D.C.M., Joshua and Marcus, Counsel stated:

Your Honor, [D.C.M] has provided names of a Joshua [], a Jonathan [] and a Marcus somebody that was at his table, and I wasn't provided that information and wasn't provided any opportunity, if I could, to subpoena these people to testify. I would like to have some opportunity to have them present, Your Honor, since he's denied the fact that [Zachary] was - was not at his table, but he does testify that a Joshua [], a Jonathan [], and a Marcus or Demetrius or whoever - whatever his name was, was also at the table.

         The record is silent, however, regarding what Jonathan's testimony would have been or whether Jonathan was able to be located by D.C.M.'s attorney. While the police report provides some indication as to what Jonathan's testimony might have been, Jonathan's statements were not under oath, and the report is not a substitute for sworn testimony in court. Had Jonathan been located, his testimony could have unequivocally supported D.C.M.'s defense, as the police report indicated that Jonathan did not hear D.C.M. make a threatening statement. But it is also possible Jonathan's testimony could have cast doubt on D.C.M.'s defense, as the police report further reflects Jonathan stated he "wouldn't doubt" D.C.M. made threatening statements.

         Jonathan also told police he was aware D.C.M. had made racial comments toward other students. This statement directly conflicts with D.C.M.'s testimony that he never made racial comments and would not be beneficial to D.C.M. "If a potential witness's testimony would not unqualifiedly support a defendant, the failure to call such a witness does not constitute ineffective assistance." Worthington v. State, 166 S.W.3d 566, 577 (Mo. banc 2005). [9]

         Unlike in Grado, in which the claim involved the counsel's failure to object to evidence and was evident on the record, 559 S.W.3d at 897, the record is incomplete with respect to D.C.M.'s claim. This Court cannot speculate as to whether Jonathan would have been located or what his testimony would have been.[10] Without knowing this information, it cannot be determined on this record whether Counsel was ineffective.[11]

         Neither the legislature nor this Court's rules have established how to address claims of ineffective assistance in a juvenile hearing when the record is insufficient to do so on direct appeal. D.C.M. encourages this Court to remand for an evidentiary hearing in the circuit court or to appoint a master on appeal pursuant to Rule 68.03.

         States such as Georgia and Illinois remand the case to the circuit court for an evidentiary hearing and finding regarding whether counsel was ineffective. See D.C., 705 S.E.2d at 314 (remanding the case for an evidentiary hearing and determination on the ineffective assistance claims); Alonzo, 40 N.E.3d at 1234 ("Such a hearing will give [the juvenile] a full opportunity to prove facts establishing ineffectiveness of counsel, the State a full opportunity to present evidence to the contrary, and the establishment of a factual record on the issue."). An evidentiary hearing would allow a record to be established regarding whether Jonathan could have been located to testify and what his testimony would have been, as well as other evidence pertaining to D.C.M.'s counsel's effectiveness. An evidentiary hearing is preferable to a special master in this context because the additional findings and conclusions will be made by the circuit court, which is already familiar with the case.[12] Accordingly, the case is remanded for an evidentiary hearing to determine whether Counsel was ineffective. If the circuit court finds Counsel ineffective, D.C.M. should be granted a new adjudication hearing. Alonzo, 40 N.E.3d at 1234. If D.C.M.'s claim is rejected, he can appeal, and the record on appeal will include the new evidence. Id.[13]

         III. The Circuit Court's Denial of D.C.M.'s ...


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