No. 84-408
I N THE SUPREME COURT O THE STATE O MONTANA
F F
1985
STATE O MONTANA,
F
P l a i n t i f f and Respondent,
E D D I E TWOTEETH, J R . ,
A Youth u n d e r t h e a g e o f 18 y e a r s ,
Defendant and A p p e l l a n t .
APPEAL FROM: D i s t r i c t Court of t h e Ninth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f G l a c i e r ,
The H o n o r a b l e R. D . M c P h i l l i p s , J u d g e p r e s i d i n g .
COUNSEL O RECORD:
F
For Appellant:
James W. Z i o n , H e l e n a , Montana
For Respondent :
Hon. Mike G r e e l y , At.torney G e n e r a l , H e l e n a , Montana
James C . N e l s e n , G l a c i e r County A t t o r n e y , C u t Bank,
Montana
S u b m i t t e d on B r i e f s : Sept. 26, 1985
Decided.: December 1 8 , 1985
Filed:
QEC 18 1985
Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Appellant, Edward Gerald Twoteeth, a minor, appeals from
the order of the District Court, Ninth Judicial. District,
County of Glacier, sitting as a Youth Court, finding him to
be a delinquent youth pursuant to section 41-5-521(6), MCA,
and ordering that a predispositional report be made
concerning Edward and that a dispositional hearing be held.
We affirm.
On February 14, 1984, Edward and two women, Faith
Buffalo and Lucy Potts, along with other unnamed minor
children of either Buffalo or Potts, attempted to cross the
United States/Canadian border. Their van. was turned back
from the border at Sweetgrass, Montana. As a result, the
appellant, Buffalo and Potts proceeded to the Glocca Morra
Bar in Sweetgrass, Montana, at about 10:OO p.m.
The appellant, Buffalo and Potts met and conversed with
two men, Cove1 Hulse and Tom Wallace, in the bar. Hulse was
employed by Simmons Drilling Company as the tool pusher for
Simmons Oil Drilling Rig #31. For all intents and purposes,
Ilulse was the foreman at this particular rig. Wallace was
employed by a trucking company to haul water to Rig #31.
Buffal.~
and Potts explained to the two men that they were low
on money and gasoline and could not cross the border until
11:OO a.m. the next day when the appellant's father or some
third person would be bringing the necessary papers to enable
them to cross the border. (It was never substantia.ted that
Edward's father was ever bringing papers to the border.)
After hearing this, the adult members of the group each
consumed three or four beers at the bar, the appellant drank
only Pepsi, and then Hulse invited the women and the
appellant out to the rig site for chili, gasoline and a place
to spend the night.
The Simmons Drilling Company Rig #31 was located
approximately 20 miles west of Sweetgrass, Montana, or 25
miles north of Cut Bank, Montana. The drilling site was in
Glacier County, Montana, on the Tuffy Swenson farm. The site
is located in remote farm country with only one farmhouse
nearby.
Hulse, Wallace, and the appellant proceeded to the rig
site in a pickup while Buffalo, Potts and the children
followed in the van.
The two vehicles arrived at the rig site at
approximately 1: 30 a.m. Hulse, Wallace, Buffalo, Potts and
the appellant immediately entered Hulse's small- camping
trailer at the rig site. They all ate chili and bread. The
bread was sliced with a butcher knife purchased by Hul-se
three days earlier. During the meal, the appellant picked
the butcher knife up from the table and pretended to shave
with it; drew the blade across each of his cheeks and smiled.
The knife was taken away from the appellant by Potts and put
into a drawer in the trailer. Apparently the knife was
placed in the drawer in full view of al-1 those in the
trailer. After the meal., Edward and Wallace fell asleep in
the trailer.
Also present at the rig site at this time were four
other workers: The decedent George Feek, Craig Brown, Ray
Firman and Cody James.
At some point Buffalo and Potts requested a tour of the
rig site. Around 2:30 a.m., the tour commenced. The tour
was conducted by Brown and James. The tour included a look
inside the boiler room. When the women, Brown and James
arrived in the boiler room, Feek was scrubbing the ceiling.
As the five people were standing in the boiler room, the
appellant walked by. As he did, Brown invited him in to warm
up. The appellant was wearing a light shirt and, when in the
boiler room, stood with his arms crossed in front of him at
belt level, as though he were cold. No one noticed anything
peculiar about the youth except for the fact he was dressed
in a t-shirt and it was cold. No one saw the appellant
holding a knife or other weapon.
James and Buffalo then left the boiler room, as James
had to "catch another sample." En route to the rig, Buffalo
went to the van where one of her children was standing and
crying. The appellant, Potts, Brown and Feek were in the
boiler room when James and Buffalo left. Very soon
thereafter, everyone left the boiler room except the
appellant and Feek.
On his way back from catching a sample, James stopped by
the boiler room to see if the rest of the group was still
there. From the doorway he saw no one was in the boiler room
but Feek and the appellant. Feek was scrubbing the ceiling
of the room, with his back to the appellant. James never
heard any conversation between Feek and the appellant.
James then met Hulse, Brown and Potts by the rig.
Shortly thereafter, Buffalo returned from the van. At
approximately the same time, Feek stumbled up to the group
with the butcher knife in his left hand, saying "she stabbed
me, she stabbed me."
As the group gathered by the rig, Firman, who had been
working on the rig, walked out to where he coul-d see the area
and the people standing below. After viewing the group
approximately 30 seconds, Firman saw George Feek come out of
the boiler room and stagger to the group with the knife in
his hand. Firman saw no one other than Feek come out of the
boiler room.
Brown testified that had Buffalo gone to the boiler room
in the amount of time she was separated from the group which
was testified to be approximately 15 minutes, he would
probably have seen her. Further, James testified that he
would have met Buffalo had she gone to the boiler room after
she had gone to the van to see her child.
Feek was stabbed in the hack below the left shoulder.
The wound was 3.5 centimeters long and 10 centimeters deep.
The knife had been plunged into the lung and had severed the
major branches of the pulmonary artery. After Feek came out
of the boiler room and collapsed, he was taken to the trailer
where Tom Wallace was still sleeping. Eventually he was
placed in the women's van and taken to meet an ambulance. He
was pronounced dead on arrival at the hospital in Cut Bank.
A search of the area for the appellant by the workers
after the incident was fruitless. The sheriff and deputy
sheriff who arrived at the site at approximately 5:40 a.m.
also could not find the appellant.
After searching the surrounding area in a pickup truck,
the sheriff and a deputy pulled up alongside the women's van,
which was again parked at the site. Potts was sitting the
van and told the sheriff and deputy that the appellant was in
the van. The officers found the appellant apparently hiding
in a small cabinet in the van which measured approximately
18" x 3_8" x 30."
The appellant was then put in the deputy sheriff's
pickup truck. During the ride to the sheriff Is office, in
response to the deputy's question as to whether something was
wrong with him, the appellant stated: "I don't know, I guess
I was drunk."
After Feek's death, a delinquency petition was filed
seeking the adjudication of the appellant as a delinquent
youth for the commission of a deliberate homicide. On August
9, 1984, the District Court, sitting as a Youth Court and
without a jury, found the appellant to be a delinquent youth
for the commission of a deliberate homicide. Following a
dispositional hearing held September 7, 1984, the District
Court ordered that a.ppellant be placed in the custody of the
Department of Institutions until he reaches 21 years of age.
Appellant raises seven issues on appeal:
1. Given the exculpatory evidence, factors, inferences
and presumptions which are contained in the record:
a. Was the contested offense supported by proof beyond
a reasonable doubt as required by section 41-5-521 ( 2 ) , MCA;
b. Is there reasonable doubt to find the appellant is a
"delinquent youth" as defined in section 41-5-103 (12), P I A
IC;
and
c. Was the presumption of innocence which operated to
the point of adjudication overcome?
2. Whether there was any rational theory of the act of
another causing the homicide or rational theory of the
youth's innocence which could cause the circumstantial
evidence in this case to be inconsistent with a theory of
guilt?
3. Whether the findings and statements of the Youth
Court were such as to show the adjudication of delinquency
was founded only upon a "justifiable suspicion, a strong
probability or a shrewd conjecture" such as to void the
finding of delinquency?
4. Whether improper evidence, inconsistency or clear
witness advocacy defeats the circumstaiitial case or gives
rise to a reasonable doubt?
5. Given all the facts and matters in this case, which
has been described by the Youth Court as "bizarre" and
"inexplicable" was there substantial evidence to support the
adjudication of the youth as delinquent for having committed
an intentional homicide?
6. Whether the failure of the State to either secure
the presence at the hearing of two material witnesses or to
obtain their testimony by adversarial process before they
fled to Canada either denied the youth his right to process
which would effectively compel the attendance of those
witnesses or whether that failure raises an exculpatory
presumption in his favor?
?. Whether the dispositional hearing conducted under
section 41-5-522, MCA (a) provided the youth a sufficient
opportunity to present alternatives for disposition, (b)
adequately safeguarded the youth's needs by providing a
dispositional alternative to return to the Pine Hills School
at Miles City, or (c) was in the best interest of the youth
and the public?
For purposes of our review, the first five issues raised
by the appellant may be consolidated into one: whether the
Youth Court properly found appellant to be a delinquent
youth.
Section 41-5-103 (12) (a) defines a delinquent youth as a
youth "who has committed an offense which, if committed by an
adult, would constitute a criminal offense." The offense the
appellant was accused of committing was deliberate homicide.
If a deliberate homicide is committed by an adult it
constitutes a criminal offense. Therefore, if the Youth
Court properly f0un.d the appellant to have committed a
deliberate homicide based upon the circumstantial evidence
presented by the State, it acted properly in finding
appellant a delinquent youth.
There is no dispute that the State's entire case rested
upon circumstantial evidence. The crux of the appellant's
contention, however, is that the circumstantial evidence
presented by the State was insufficient for the court to find
that he committed a deliberate homicide. The State contends
that the State did meet its burden of proof by presenting
substantial evidence to support the Youth Court's concl.usion
that the appellant was a delinquent youth.
Section 41-5-521(2) provides in part:
An adjudicatory hearing shall be held. to determine
whether the contested offenses are supported by
proof beyond a reasonable doubt in cases involving
a youth alleged to be delinquent.. If the ..
hearing is before the youth court judge without a
jury, the judge shall make and record his findings
on all issues.
In contending that the State did not meet its burden of proof
and that the Youth Court's findings of fact and conclusions
of law were not supported by the evidence, the appellant
directs this Court to its rule regarding obtaining a
conviction based only upon circumstantial-evidence. Although
this case does not involve a crimina.1 trial, we find the rule
applicable because of the State's high burden of proof. We,
however, also find that the application of this rule to the
present case leads to the affirmance of the Youth Court's
order finding the appellant a delinquent youth.
The rule to which the appellant refers states that when
a conviction is sought solely on circumstantial evidence, the
facts and circumstances must not only be entirely consistent
with the theory of gui3.t but must be inconsistent with any
other rational theory. State v. Starr (Mont. 1983), 664 P.2d
893, 896, 40 St.Rep. 796, 798; State v. Stoddard !1966), 147
Kent. 402, 408, 412 P.2d 827, 831-. Any determination of
circumstantial evidence which may be sufficient to sustain a
conviction must be made considering all the facts and
circumstances of the case, considered col~lectively. State v.
Armstrong (Mont. 1980), 616 P.2d 341, 346, 37 St.Rep. 1563,
1567. But it is also the rule that each fact in the chain of
circumstances need not he proven beyond a reasonable doubt.
Rather, the State must prove that there is not a reasonable
doubt arising from consideration of all the evidence in the
case. State v. Fitzpatrick (1973), 163 Mont. 220, 326, 516
P.2d 605, 609.
We hold, after considering the entire record that the
State met its burden of proof and that there is substantial
evidence in the record to uphold the Youth Court's order
finding appellant a delinquent youth for having committed a
deliberate homicide.
A person commits the offense of deliberate homicide if
he purposely or knowingly causes the death of another human
being. Sections 45-5-101 to -102, MCA. Thus, we must review
the record to determine whether there is substantial
circumstantial evidence to support the Youth Court's finding
that the appellant committed the contested offense,
deliberate homicide.
The record reveals that the oil rig was located in a
desolate and isolated farming area. There were no other
people at the rig site other than the appellant, Buffalo,
Potts, Hulse, Firman, Brown, Wallace, James, the deceased
George Feek and minor children who were sleeping in the van.
Each of the above-nahed people, except the appellant,
accounted for themselves and pinpointed their own location on
the rig at the time of the stabbing of George Feek. This
accounting was either through their own testimony,
substantially corroborated, or the testimony of others.
1mmediatel.y following the collapse of Feek at the stairs to
the rig, each person on the rig site is accounted for except
the appellant.
The appellant was left in the trailer where the weapon
was located when the group moved to the rig for a tour. He
joined the group in the boiler room sometime later, after he
had first walked past the boiler room door. He then entered
the boiler room with his arms crossed at his waist.
Witnesses testified he could have had his arms crossed to
hide the weapon in his pants or he may have been cold due to
wearing only a t-shirt in the 15-20' Fahrenheit temperature
that night.
When the group disbursed and moved on to the stairs of
the r , the appellant remained behind in the boiler room.
The appellant was last seen in the boiler room with Feelc by
James. James testified that the appellant and Feek were in
the boiler room and that Feek was working with his back to
the appellant. Minutes later, Feek came stumbling out of the
boiler room and said, "She stabbed me! She stabbed me!"
With regard to Feek's statement the evidence indicated
the appellant had long hair down to the small of his back
pulled into a pony tail. The appellant also has a small
frame standing approximately 5'5" tall in height. Two
witnesses testified that at first sight, they thought the
appellant was a female. The Youth Court also noted that the
appellant bore no outwardly visible signs, such as a
mustache, beard, tatoos or jewelry that would provide a
reasonable person with a clue to the appellant's gender.
The Youth Court obviously inferred that Feek was
mistaken about the appell-ant's gender when he made the
statement. Based on the evidence presented, it was proper
for the Youth Court to do so. Sections 26-1-501 to -502,
MCA .
Immediately following the collapse of Feek, the
appellant could not be located anywhere upon the rig site.
At approximately 5:40 a.m., the deputy sheriff could not
locate the appellant anywhere on the rig site or the
surrounding farm country. At 7: 50 a.m., the law enforcement
officers were told by Potts that the appellant was hiding
inside the van. The appellant was found hidden in a small
cabinet approximately 30" tall, 18" wide, and 18" deep. The
officer expressed ast.onishment that anyone could hide in such
a small cabinet.
It is well settled that the flight or concealment of a
person immediately after the commission of a crime, or after
he is accused of a crime that has been committed, is not
sufficient in itself to establish his guilt, but is a fact
which, if proved, may be considered by the trier of fact in
light of all other provided facts in deciding the question of
his guilt or innocence. Whether or not evidence of flight
or concealment shows a consciousness of guilt, and the
significance, if any, to be attached to such a circumstance,
are matters for determination by the trier of fact. State v.
Pierce (19821, 199 Mont. 57, 63, 647 P.2d 847, 851; State v.
Hardy (1980), 1-85 Mont. 130, 136, 604 P.2d 792, 796; State v.
Gone (1978), 179 Mont. 271, 277, 587 P.2d 1291, 1295.
Again, considering all the circumstantial evidence
collectively, we find that the State met its burden and the
court properly found the appellant to be a delinquent youth
for having committed the contested offense, deliberate
homicide.
The second issue raised by the appellant is whether his
right to compulsory process was affected by the failure of
Buffalo and Potts to testify at the adjudicatory hearing.
The appel-lant contends that the two women, both of whom were
Canadian citizens, should have been required to testify at
the adjudicatory hearing. The appellant claims that their
failure to appear was a violation of his right to have
process to compel witnesses to appear, for which the State
was responsible, d.espite the fact the State had the women
served with subpoenas by the Royal Canadian Mounted Police.
It is true that in all. criminal prosecutions the accused
has the right to process to compel the attendance of
witnesses. U.S. Const. amend VI; 1972 Kont. Const., Art. 11,
§ 24. The Youth Court Act, however, expressly states that an
adjudication under the act shall not be deemed a criminal
conviction. Section 41-5-106, MCA. Thus, the question seems
to arise whether a youth involved in a delinquency
adjudication is even entitled to this constitutional right.
We, however, find it unnecessary to reach the constitutional
issue in the instant case because the women were not United
States citizens and could not be legally compelled to appear.
Where an American court lacks the power to compel a witness
who is not an American citizen to appear, a defendant's right
to compulsory process is not violated by the absence of the
witness. United States v. Wolfson (19711, 322 F.Supp. 798,
820-22, aff'd, 454 F.2d 60 (3d Cir. 1972), cert. denied, 406
U.S. 924 (1972); United States v. Greco (2d ~j.r. 19621, 298
F.2d 247, 251, cert. denied, 369 U.S. 820 (1962).
In this case, the witnesses were outside the
jurisdictional limits of the Youth Court and could not be
compelled to appear. Therefore, though we do not pass on the
constitution.al question, the appellant's right was not
affected.
The final issue raised by the appellant i.s whether the
Youth Court acted properly by allowing for the automatic
transfer of the appellant from the Griffith Center in
Colorado to the Department of 1nsti.tutions without a prior
hearing. The appellant. apparently contend-s that the Youth
Court's dispositional order was in contravention of section
41-5-522 (4), MCA, which requires the court to make a
"disposition of the case best serving the interests of the
youth and the public."
On November 20, 1984, the Youth Court held a
dispositional hearing. The dispositional order directed that
temporary custody of the appellant he placed in the
Department of Social and Rehabilitation Services with
instructions that the appellant be placed in the Griffith
Center Program in Colorado. The District Court further
ordered.:
That upon completion of the Griffith Center Program
by the Youth his custody shall automatically revert
to the Montana Sta.te Department of Institutions.
The Youth shall at that time be granted the right
to file an additional petition requesting an
alternate placement of the Youth in some program
other than at Pine Hills as appropriate.
During the hearing, the appellant objected to the automatic
transfer of custody to the Department of Institutions on the
appellant's completion of the Griffith Center program and, in
that regard, requested the Court to hold another hearing at
that time as to the further disposition of the appellant in
view of certain placement opportunities available to him in
Canada. The Youth Court denied the appellant's request.
The appellant now argues the order for automatic
transfer to Pines Hills following treatment in Colorado was
improper, contending that a hearing should be held before
such a transfer. Appellant, however, fails to show how the
Youth Court's order violated the court's power to determine
what is in the best interests of the youth and public.
Section 41-5-523, MCA, provides allowable di-spositions and
gives the Youth Court the authority to place the youth in the
custody of the Department of Institutions and. in a youth care
facility. Given the court's power and the appellant's
inability to show that the Youth Court's order was in
violation of its power, we uphold the dispositional order of
the Youth Court.
We Concur: