Record No. 1050-93-1Court of Appeals of Virginia. Argued at Norfolk, Virginia.
Decided: February 21, 1995
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK, John E. Clarkson, Judge
George A. Anderson, Jr. (Robinson, Madison, Fulton
Anderson, on briefs), for appellant.
Robert B. Condon, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Baker, Willis and Elder
MEMORANDUM OPINION[*]
JUDGE JOSEPH E. BAKER.
Lanxter Lamont Kuykendall (appellant) appeals from his bench trial convictions by the Circuit Court of the City of Norfolk (trial court) for first-degree murder, use of a firearm, and for robbery. The sole issue presented by this appeal is whether the trial court had jurisdiction to try appellant. Appellant contends that the Juvenile and Domestic Relations District Court (district court) erroneously failed to cause a proper investigation of his mental capability prior to finding that appellant was not mentally retarded. Therefore, he asserts that the trial court did not have jurisdiction to try him on charges for which he stands convicted and here appeals. Finding no error, we affirm the judgment of the trial court.
On November 16, 1991, the day that the subject offenses occurred, appellant was seventeen-years, ten-months old. A transfer hearing to determine whether he should be tried as an adult was held in the district court. After reviewing a study and report made by a district court officer, and affording appellant an opportunity to be heard, the district court specifically found “[t]hat [appellant] is not mentally retarded or criminally insane.” Appellant offered no evidence in contradiction of that finding and did not appeal the transfer order entered by the district court.
In the trial court, appellant waived his right to be tried by a jury and agreed to be tried by the court. At trial, he offered no evidence of mental deficiency and did not claim to be criminally insane. Appellant’s counsel in the trial court was the same counsel who represented him during all stages of the district court proceedings. Defense counsel did not at the district court proceeding or prior to the sentencing hearing in the trial court suggest that appellant was incapable of assisting or, in fact, did not assist his counsel in defense of the charges.
After appellant was found guilty of the three charges, the cases were continued for the preparation of a presentence report. Near the close of the presentence hearing appellant moved to dismiss all the convictions, asserting that the trial court lacked jurisdiction to try him on the charges. That motion was based on the presentence report that contained a reference to a Portsmouth public school record which showed that appellant was enrolled in an “educationally mentally retarded program” in 1986. That record further revealed that he had been tested and “scored in the borderline to mentally deficient range.” Because of this revelation, appellant contended that the trial court could only sentence appellant as a juvenile or remand the cases to the district court for sentencing.
After hearing argument on the remand issues, the trial court ordered a psychological evaluation of appellant. A clinical psychologist examined appellant and opined that appellant was competent to stand trial, but that appellant suffered some mental retardation. After hearing further argument, the trial court took the matter under advisement. At a subsequent hearing, the trial court denied the motion and found it had jurisdiction.
The safeguards provided by Code Sec. 16.1-269 have been fully implemented here. At no time has appellant asserted that he was not given a transfer hearing or denied the opportunity to prove error in or appeal the district court’s finding. No objection was made to the transfer order and no claim is made that appellant lacked the capacity to assist his counsel at the transfer hearing or at trial in the circuit court.
The only reference in this record to mental deficiency is that contained in the trial court ordered psychological report. That report assured that appellant was fully competent to stand trial and to assist his counsel in presenting his defense although there were signs of some mild mental retardation. Where mental incapacity is asserted, soundness of mind is presumed. Code Sec. 16.1-269 A.3.c. See Wright v. Commonwealth, 245 Va. 177, 183, 427 S.E.2d 379, 384 (1993) (citation omitted). The burden is upon him who contends otherwise to rebut the presumption. Id.
The district court fully complied with the provisions of Code Sec. 16.2-269. On this record, evidence presented, after trial on the merits, that approximately five years prior to the transfer hearing appellant had been assigned to a class with others who had “borderline” retardation is insufficient to require that we declare that the district court failed to comply with that code section. A simple suggestion of mental deficiency is not enough to overcome the finding of the district court. See, e.g., Hawks v. Peyton, 370 F.2d 123, 125
(4th Cir. 1966). Moreover, the determination made by the district court as to whether a transfer should be made is a discretionary one and will not be disturbed unless abused. See Elkins v. Commonwealth, 208 Va. 336, 157 S.E.2d 243 (1967).
Trial courts are of necessity vested with discretion in determining whether a juvenile should be treated as an adult and tried accordingly. Trial court judges are far better positioned to make such determinations from their personal observation of the parties than appellate judges who view only the written record. Therefore, the trial court’s decision whether to transfer jurisdiction will not be reversed absent a showing that its exercise of discretion has been abused.
Kluis v. Commonwealth, 14 Va. App. 720, 723, 418 S.E.2d 908, 909-10, (1992) (citing Tilton v. Commonwealth, 196 Va. 774, 780-81, 85 S.E.2d 368, 372 (1955). Here, after personally observing appellant and reviewing the probation officer’s reports, the district court made the findings required by Code Sec. 16.1-269. In the exercise of discretion vested in them, both the district court and the trial court, after investigation and report, heard evidence and argument of counsel and concluded that appellant had the mental capacity to comprehend the charges, assist his counsel, and present his defense. We will not disturb those findings unless it plainly appears that the trial court has abused its discretion. See Tilton, 196 Va. at 779, 85 S.E.2d at 371; Delp v. Commonwealth, 172 Va. 564, 570-71, 200 S.E. 594, 596 (1939); Wood v. Commonwealth, 146 Va. 296, 305, 135 S.E. 895, 898 (1926).
Upon this record, we find no abuse of discretion. Accordingly, the judgment of the trial court is affirmed.
Affirmed.