No. 87-332
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
IN THE MATTER OF
K. M. H., a Youth.
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Joel G. Roth, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Bradley B. Parrish, Lewistown, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
Patricia J. Schaeffer, Assistant Attorney General
Craig R.Buehler, Fergus County Attorney, Lewistown, Montana
Jon Oldenburg, Deputy Fergus County Attorney
- --
Submitted on Briefs: December 22, 1987
Decided: March 18, 1988
-
Filed: MAR 1 8 1 8
9g
- -
Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
K. M. H., a youth, appeals an order of the Tenth Judi-
cial District Youth Court, Fergus County, waiving
jursidiction and transferring K.M.H. from Youth Court to
District Court. The Youth Court's order was based on a
December 4, 1986, petition alleging that K.M.H. is a delin-
quent youth and alleging that K.M.H. committed deliberate
homicide and attempted deliberate homicide.
We affirm.
The sole issue on appeal is whether the Youth Court
abused its discretion when it transferred K.M.H. to District
Court pursuant to § 41-5-206, MCA (1985)?
After careful review of the record, we hold the Youth
Court did not abuse its discretion when it transferred K.M.H.
to District Court. However, in order to protect appellant's
right to a fair trial, we decline to detail the evidence
produced at the transfer hearing. Additionally, we decline
to name witnesses testifying at the Mary 11, 1987, transfer
hearing.
At the May 11, 1987, transfer hearing, two of the
State's witnesses, S.F. and John Moffatt made the following
allegations. On the morning of December 4, 1986, K.M.H.
brought a .41 magnum revolver to Fergus County High School.
At approximately 1:17 p.m. on the same day, K.M.H. shot and
killed a substitute French teacher, Henrietta Smith. Moments
later, K.M.H. shot and seriously injured assistant principal
John Moffatt. As Moffat lay wounded on the floor, K.M.H.
fired again and missed.
On December 4, 1986, a petition was filed alleging that
K.M.H. is a delinquent youth and alleging that he committed
deliberate homicide and attempted deliberate homicide.
Subsequent to filing the petition, appellant was sent to
Rivendell, formerly the Montana Youth Treatment Center, for a
psychiatric evaluation. He was then enrolled in Pine Hil.ls
School for Boys.
On December 8, 1986, respondent moved to transfer the
matter from Youth Court to District Court pursuant to
S 41-5-206, MCA (1985). Section 41-5-206, MCA ( 1 9 8 5 ) , 1
provides in pertinent part:
(1) After a petition has been filed
alleging delinquency, the court may,
upon motion of the county attorney,
before hearing the petition on its
merits, transfer the matter of prosecu-
tion to the district court if:
(a)(i) the youth charged was 12 years of
age or more at the time of the conduct
alleged to be unlawful and the unlawful
act would constitute sexual intercourse
without consent as defined in 45-5-503,
deliberate homicide as defined in
45-5-102, or mitigated deliberate homi-
cide as defined in 45-5-103, or the
attempt, as defined in 45-4-103, of
either deliberate or mitigated deliber-
ate homicide if the act had been commit-
ted by an adult . . .[and]
(d) the court finds upon the hearinq of 7
all relevant evidence t h x there are
reasonable grounds - believe t h x
to
(i) - youth committed the delinquent
the
act alleged;
(ii) the seriousness - - offense and
of the
the protection - - community require
of the
1 In 1987 the legislature in subsection (l)(d) substi-
tuted "is probable cause" for "are reasonable grounds"
and deleted subsections (2) (c) and (2) (d).
treatment
- - of
-
the vouth bevond -
I
that
afforded juvenile facilities; --
and
(iii) the alleged offense was committed
- - agressive, violent, - premeditat-
in an or
- manner.
ed
(2) In transferring the matter of prose-
cution to the district court, the court
may also consider the following factors:
(a) the sophistication and maturity of
the youth, determined by consideration
of his home, environmental situation,
and emotional attitude and pattern of
living;
(b) the record and previous history of
the youth, including previous contacts
with the youth court, law enforcement
agencies, youth courts in other juris-
dictions, prior periods of probation,
and prior commitments to juvenile insti-
tutions. However, lack of a prior
juvenile history with youth courts will
not of itself be grounds for denying the
transfer.
(c) the severity of the offense;
(d) the prospects for adequate protec-
tion of the public and the likelihood of
reasonable rehabilitation of the youth
by the use of procedures, services, and
facilities currently available to the
youth court. [Emphasis added.]
Appellant K.M.H. contends the District Court abused its
discretion when it found: (1) reasonable grounds to believe
that the seriousness of the offense and the protection of the
community require treatment of the youth beyond that afforded
by juvenile facilities; and (2) reasonable grounds to believe
the alleged offenses were committed in an aggressive, violent
or premeditated manner.
Our standard when reviewing juvenile transfer
proceedings is to determine whether the Youth Court abused
its discretion by failing to consider all statutory criteria
and whether substantial credible evidence supports the Youth
Court's finding that juvenile facilities are inadequate in
light of the "seriousness of the offense and the need to
protect the community." Matter of B.D.C. (Mont. 19841, 687
P.2d 655, 658, 41 St.Rep. 1318. The youth may not be trans-
ferred simply because he has committed a serious offense. In
re Stevenson (1975), 167 Mont. 220, 538 P.2d 5, 9.
A review of the record supports the findings, conclu-
sions and order of the Youth Court. At the May 11, 1987,
transfer hearing, the testimony of K.D. and M.R. and corrobo-
rated the assertions of S.F. that appellant knocked on the
French classroom door and shot Henrietta Smith. This testi-
mony, coupled with John Moffatt's testimony, constitutes
reasonable grounds to believe that K.M.H. committed the
crimes. The crimes, attempted deliberate homicide and delib-
erate homicide, are serious offenses. Matter of N.C.F.
(Mont. 1982), 197 Mont. 390, 643 P.2d 236, 238.
Dr. H.S.N., medical director at Rivendell, testified
that appellant suffers from schizotypal personality with a
mild dysthymic disorder. He recommended that appellant live
in a structured environment and receive treatment for several
years. Additionally, Dr. H.S.N. stated that if appellant
were faced with another stressful situation, another explo-
sive reaction might occur.
A.D., superintendent of Pine Hills School for Boys,
testified that Pine Hills is not an appropriate place to
treat a "psychologically impaired youth who committed a
homicide." D.D.R., administrator of the Division of Correc-
tions, Department of Institutions, testified by deposition
that if appellant was not transferred to District Court, the
Department of Institutions would lose all jurisdiction to
treat and supervise him when he reaches age 21. M.F.O.,
chief probation officer for the Tenth Judicial District,
testified that he felt appellant should be transferred to the
adult system to allow adequate supervision for a significant
number of years.
The Youth Court, in its findings and conclusions,
indicated that appellant could not be properly supervised and
treated if he remained under jurisdiction of the Youth Court:
In summary, the most critical factor
herein - -p r o s p e c t for adequate
is t h r
rotection of the ublic - -
and the
Tiklehood [SIT] o~rea:onable rehabili-
tations - [K.M.H.]
of by use of proce-
dures, services, and facilities
currently available to the Youth Court.
This court cannot conclude with reason-
able certaintv that [ K . M . H. 1 will not
require supervision and possible further
treatment after he reaches the age - - of 21
I
vears. The ~ o u t h ~ o u r t
loses all iuris-
diction and control of the youth at age
21. On the other hand, if the youth is
transferred into the adult criminal
Court there will be more options avail-
able for treatment (possible psychiatric
treatment at Warm Springs State Hospi-
tal) and supervision (as Swan River
Forest Camp, a Half-Way House, or Mon-
tana State Prison, or on probation or
parole for a longer period of time).
[Emphasis added.]
We hold that substantial credible evidence supports the
Youth Court's finding that K.M.H. be transferred to District
Court in light of the seriousness of the offenses and the
need to protect the community.
Appellant also contends that substantial credible
evidence does not support the Youth Court's finding the
alleged offenses were committed in an aggressive, violent or
premeditated manner. We do not agree.
The assertions of S.F. support the Youth Court's find-
ing that appellant allegedly planned the shooting several
days prior to the commission of the crimes. Appellant's
alleged conduct constitutes aggressive, violent - premedi-
and
tated execution of the deliberate homicide and aggressive and
violent execution of the attempted deliberate homicide.
Section 41-5-206, MCA (1985).
We hold the Youth Court did not abuse its discretion
when it transferred the above-mentioned cause from Youth
Court to District Court.
Affirmed.
We concur:
Justices
Mr. Justice John C. Sheehy, dissenting:
I dissent, not so much from the logic of the majority
(though the logic is faulty), as from the negligent unconcern
of the legislature in failing to make adequate provision for
youths like K.M.H.
While I respect the seal of the Youth Court on the facts
of this case to protect K.M.H.'s fair trial rights,
recitation of the following facts will not damage K.M.H.'s
case, certainly not as much as the recitation of facts in the
majority opinion. The Youth Court found that K.M.H. is
seriously mentally ill and as such is a danger to other
persons and to himself and that he is in need of intensive
psychiatric care for an extended period of time; K.M.H.
committed the acts when he was 14, is now 15, and the Youth
Court would lose jurisdiction of him at age 21; the Youth
Court was not satisfied that intensive psychiatric treatment
during the period of six years for which the Youth Court had
remaining jurisdiction was sufficient for K.M.H.'s
rehabilitation; and then the Youth Court determined from the
evidence that reasonable grounds existed that K.M.H. had
committed the delinquent (criminal) acts with which he is
charged.
In the adult court, K.M.H. as a defendant, if he is
found not guilty for the reason that due to a mental disease
or defect he could not have a particular state of mind that
is an essential element of the offense charged, must be then
committed to the custody of the superintendent of the Montana
State Hospital to be placed in an appropriate institution for
custody, care and treatment. Section 46-14-301(2), MCA. The
truth is the people operating the Montana State Hospital do
not want high risk placements, and so K.M.H. will shortly be
placed in the Montana State Prison or the Swan River Camp
under some guise of further treatment. He is not eligible to
go to Rivendell in Billings because it does not have
security.
The elements of the crime of deliberate homicide in
Montana are a voluntary act, (5 45-2-202, MCA), coupled with
either purpose or knowledge ( S 45-5-102, MCA) . There is a
lapse in logic, therefore, for the Youth Court and the
majority of this Court to determine that K.M.H. must be
transferred to the adult court for criminal prosecution
because he is seriously mentally ill, when in the adult
court, because he is seriously mentally ill, he may not be
convicted of committing a crime. The majority and the Youth
Court have been forced to this illogical position because the
legislature has failed to make provision for the proper
treatment of crazed youths even though the state constitution
requires that laws for the punishment of crimes shall be
founded on the principles of prevention and reformation.
Art. 11, S 28, 1972 Mont. Const.
The consequences are terrible for this 15 year old boy.
Without overlooking his killing of one person and his assault
with a deadly weapon upon another, we may note that
historically no civilized governmental entity holds a person
responsible for criminal conduct resulting from a lack of
substantial capacity to appreciate the criminality of his
conduct or to conform his conduct to the requirements of the
law. American Law Institute, Model Penal Code, S 4.01(1)
(1962). Yet Montana, in 1979, removed that defense from our
criminal statutes, and placed it in the power of
psychiatrists to opine to the jury whether the defendant had
the particular state of mind which is an element of the
offense charged. Section 46-14-213, MCA. (See my dissent in
State v. Korell (Mont. 1984), 690 P.2d 992, 1005, 41 St.Rep.
2141, 2156.) The likelihood is that this 15 year old boy
will be sentenced to a long prison term in the adult court,
and that facially, treatment for his mental condition will be
ordered, but very little received. In the meantime, he will.
be subjected to the company of male prisoners, half again,
twice and three times his age. In the adult court it is even
possible for him to receive a death sentence. In light of
his immature age, his recognized mental illness, the bleak
prospect of adequate treatment for him and his long years of
prison life, it is almost not too callous to ask, "Oh death,
where is thy sting?"
In this election year, every legislative candidate and
gubernatorial candidate should be asked this important
question, "What do you intend to provide for the treatment of
youths out of control by reasons of mental illness?"
- ' :< .
& ,
i/i Justice