STATE EX REL JUV. DEPT. v. WICK

GILLETTE, P. J.

In this juvenile delinquency proceeding, the child was found to be within the jurisdiction of the court, pursuant to ORS 419.476(1)(a), on the basis of a petition alleging that the child committed an act which would constitute rape in the first degree if he were an adult. The child argues that the court erred by refusing his motion for a jury trial and by denying his motion for a probable cause hearing. We affirm.

ORS 419.476(1)(a) provides:

"(1) The juvenile court has exclusive original jurisdiction in any case involving a person who is under 18 years of age and:

"(a) Who has committed an act which is a violation, or which if done by an adult would constitute a violation, of a law or ordinance of the United States or a state, county or city; * * *"

The child makes a powerful argument for the right to a jury trial in juvenile proceedings. He acknowledges, however, the Oregon Supreme Court's holding that such a right does not exist. State v. Turner, 253 Or. 235, 453 P.2d 910 (1969). He seeks to distinguish Turner on the grounds that it was based solely on the federal constitution. He also points out that, since Turner, the courts have chipped away at the traditional notion that juvenile proceedings should be less formal than adult, criminal trials. For example, Oregon courts have held that juveniles are entitled to double jeopardy protection and that juvenile proceedings are probably criminal in nature, see State ex rel Juv. Dept. v. Knox, 20 Or. App. 455, 460-63, 532 P.2d 245 (1975), that a juvenile can raise the affirmative defense of mental disease or defect in a delinquency proceeding, see State ex rel Juv. Dept. v. LJ, 26 Or. App. 461, 552 P.2d 1322 (1975), and that the public has a constitutional right to access to juvenile court proceedings, State ex rel Oregonian Pub. Company v. Deiz, 289 Or. 277, 613 P.2d 23 (1980).

The court concluded in Turner that ORS 419.498(1) (now ORS 419.476(1)(a)) "should be considered constitutional until the United States Supreme Court holds otherwise." In McKeiver v. Pennsylvania, 403 U.S. 528, 91 S Ct 1976. 29 L Ed 2d 647 (1971), the Supreme Court held that juveniles have no federal constitutional right to trial by jury.

The tenor of the child's argument is that the informality emphasized by the parens patriae concept of juvenile law relied on in Turner has given way to the goal of assuring that juveniles accused of committing acts that would be criminal if committed by adults and who, if found guilty, are subject to incarceration be accorded full due process rights. As noted, the child's arguments are well stated, but we find no basis upon which we can distinguish the Supreme Court's decision in Turner, by which we are bound.

Turning to the child's Oregon constitutional theory, it is true that Turner cited the federal constitution alone. However, the Supreme Court at that time was certainly aware that it could utilize an Oregon constitutional analysis reaching a different result if it felt the need to do so. It did not. We believe Turner is controlling, and any overruling or qualification of its holding must come from the Supreme Court.

The child argues next that the court erred in refusing to grant him a probable cause hearing. The child was kept in detention on the basis of unsworn police reports, without an adversary hearing. Independent of whether the child's preadjudication detention was unlawful, he is not entitled to reversal of the juvenile court's ultimate determination. In Gerstein v. Pugh, 420 U.S. 103, 95 S Ct 854, 43 L Ed 2d 54, 68 (1975), the Court stated:

While a probable cause hearing is required prior to detention of a child pending an adjudicatory hearing, "a full adversarial hearing, complete with the right to cross-examination and confrontation" is not required. Roberts v. Mills, 290 Or. 441, 447, 631 P.2d 1094 (1981).

"* * * Nor do we retreat from the established rule that illegal arrest or detention does not void a subsequent conviction. Frisbie v. Collins, 342 U.S. 519, 96 L Ed 541, 72 S Ct 509 (1952); Ker v. Illinois, 119 U.S. 436, 30 L Ed 421, 7 S Ct 225 (1886). Thus, as the Court of Appeals noted below, although a suspect who is presently detained may challenge the probable cause for the confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial without a determination of probable cause. * * * " 43 L Ed 2d 68.

See also United States v. Crews, 445 U.S. 463, 100 S Ct 1244, 63 L Ed 2d 537, 547 (1980). The error alleged by the child does not require reversal of the juvenile court's decision on the merits.

The court did not err in refusing to grant the child a jury trial. Whether or not the court erred in failing to hold a probable cause hearing, such an error would not require reversal.

Affirmed.