No. 12956
I N T E SUPREME C U T O T E STATE O MONTANA
H OR F H F
I N THE M T E OF RODNEY D A STEVENSON,
ATR EN
a c h i l d under e i g h t e e n y e a r s of age.
Appeal from: D i s t r i c t Court o f t h e Eighth J u d i c i a l District,
Honorable Paul G , Hatf i e l d , Judge p r e s i d i n g .
Counsel of Record:
For Appellant :
John M. McCarvel argued, Great F a l l s , Montana
For Respondent:
Hon. Robert L. Woodahl, Attorney General, Helena,
Montana.
Thomas Budewitz, A s s i s t a n t Attorney General, argued,
Helena, Montana
J, Fred Bourdeau, County Attorney, Great F a l l s , Montana
Norman L. Newhall, 111, argued, Deputy County Attorney,
Great F a l l s , Montana
Submitted: May 8, 1975
Decided : JUN I 7 jt~as
M r . J u s t i c e John Conway Harrison d e l i v e r e d t h e Opinion of t h e
Court.
On t h e evening o f November 9 , 1974, A l b e r t Rusch, pro-
p r i e t o r of t h e Rainbow Grocery i n Great F a l l s , Montana, was
s e v e r e l y wounded by a shotgun b l a s t d u r i n g an attempted armed
robbery. Three days l a t e r t h e Great F a l l s c i t y p o l i c e were
informed by a number of i n d i v i d u a l s t h a t they had some informa-
t i o n t o d i v u l g e about t h e crime.
On November 13, 14, and 18, sworn s t a t e m e n t s were taken
from f i v e minors and two a d u l t s by t h e deputy county a t t o r n e y f o r
Cascade County. Through t h e use of t h o s e s t a t e m e n t s , Kenneth
Kreuger and Rodney Stevenson, both minors, were i m p l i c a t e d i n t h e
crime.
O November 1 5 , 1974, a p e t i t i o n was f i l e d i n t h e youth
n
c o u r t f o r t h e purpose of d e c l a r i n g Rodney Stevenson a d e l i n q u e n t
youth, pursuant t o s e c t i o n 10-1203 (12) (a), R.C,M, 1947. The sub-
s t a n c e of t h e p e t i t i o n a l l e g e d t h a t Stevenson had committed o r
was l e g a l l y accountable f o r t h e following crimes w i t h i n t h e meaning
o f s e c t i o n 94-2-107 ( 3 ) , R.C.M. 1947:
1) Attempt -------s e c t i o n 94-4-103, R.C.M. 1947.
2) Robbery-------- s e c t i o n 94-5-401 (1) ( a ) , R.C.M. 1947.
3) Aggravated Assault----- s e c t i o n 94-5-202(1) ( a ) ,
R.C.M. 1947.
A motion r e q u e s t i n g t r a n s f e r of Stevenson from youth c o u r t 2 t o
a d u l t c r i m i n a l c o u r t pursuant t o s e c t i o n 10-1229 ( I ) , R.C.M. 1947,
accompanied t h e p e t i t i o n .
O November 21, 1974, a h e a r i n g on t h e t r a n s f e r motion
n
was h e l d and evidence heard. Four days l a t e r t h e youth c o u r t
r e l i n q u i s h e d i t s j u r i s d i c t i o n and t r a n s f e r r e d t h e c a s e t o t h e
d i s t r i c t c o u r t where Stevenson was t o b e prosecuted a s an a d u l t .
On appeal the principal issue is whether the youth court
judge abused his discretion in ordering Stevenson transferred
from youth court to adult criminal court pursuant to section
10-1229. We hold the youth court judge abused his discretion in
failing to consider all of the criteria established by statute
as a prerequisite to a valid transfer order. We remand the cause
to the youth court so that all criteria may be properly considered.
For a complete understanding of this case, we will review
the evidence presented at the transfer hearing.
During the hearing, the sworn statements of the five
minors and two adults, previously referred to, were introduced
into evidence. The contents of those statements were summarized
by Norman Newhall 111, the deputy county attorney for Cascade
County :
"MR. NEWHALL: Now, then, these statements
essentially corroborate the same version of what
occurred here, including, in particular, statements
by Rodney Stevenson to his date of that evening, and
his apparent girl friend for sometime, a girl by the
name of Susan Ultrainetz, that the boys, Kenneth
Kreuger and Rod Stevenson, were that evening together,
and they went in Kenneth Kreuger's truck, at approx-
imately 7:30 P.M., and they proceeded, by what route
I don't know, they eventually proceeded to the Rainbow
Grocery. It is unclear from the statements whether
there was any casing of the premises by the boys before
the actual incident, but essentially what occurred was
that Rod Stevenson stayed in the truck, as the driver
** **"
Later in the transcript, Mr. continued:
" M R . NEWHALL: In any event Kenneth Kreuger went into
the store, the Rainbow Grocery, and he had the shotgun,
and the shotgun was fired, and the charge struck Mr.
Rusch, two shots, in the back, and then Kenneth ran out
of the store, and jumped into the truck, which was being
driven by Rod Stevenson, and they proceeded then to the
home of Anita Jermolajevs, where they spent most of the
rest of that evening, and disbanded sometime around mid-
night. Before that time, Rod Stevenson had gone out
driving with Sue Ukrainetz, at which time he told her of
this incident. That, essentially, is the bare bones of
which is contained in those statements. Now, then, other
aspects of all of the statements indicate that Rod
Stevenson and Kenneth Kreuger had gone out and shot this
shotgun on at least one other occasion prior to this in-
c&nt, oh, apparently hunting, or whatever they were doing,
and t h e s t a t e m e n t s a l s o i n d i c a t e t h a t Rod Stevenson was
aware t h a t Kenneth went i n t o t h e s t o r e w i t h t h e shot-
gun, and he was aware, a f t e r t h e i n c i d e n t , t h a t a per-
son had been s h o t , because Kenneth had t o l d him. That
w i l l be t h e summary I have of t h e s e s t a t e m e n t s . I t
Here, f o r t h e f i r s t time, Stevenson contends t h e c o u r t
e r r e d i n r e c e i v i n g t h e s e s t a t e m e n t s i n t o evidence because they
were hearsay and, furthermore, t h e i r r e c e i p t i n t o evidence vio-
l a t e d c e r t a i n b a s i c l e g a l r i g h t s g r a n t e d t o minors by s e c t i o n 10-
1218, R.C.M. 1947,
W d e c l i n e t o r u l e upon t h i s q u e s t i o n , a b s e n t a proper
e
and t i m e l y o b j e c t i o n by defense c o u n s e l a t t h e h e a r i n g . This
Court w i l l n o t c o n s i d e r o b j e c t i o n s urged f o r t h e f i r s t t i m e on
appeal. S t a t e v. Whitcomb, 94 Mont. 415, 22 P.2d 823; Boehler
v, Sanders, 146 Mont. 158, 404 P.2d 885; Carpenter v. F r e e , 138
Mont. 552, 357 P.2d 882; Bower v. Tebbs, 132 Mont. 146, 314 P.2d
731.
A t t h e h e a r i n g Jack Macek, a d e t e c t i v e w i t h t h e Great
F a l l s p o l i c e department, t e s t i f i e d as t o t h e circumstances
surrounding t h e crime and t h e subsequent i n v e s t i g a t i o n which l e d
t o t h e apprehension of Kreuger and Stevenson.
D. W. Avery, Jr., c h i e f youth p r o b a t i o n o f f i c e r f o r
Cascade County, t e s t i f i e d a s t o s t e v e n s o n ' s p r i o r r e c o r d , which
revealed :
1. Stevenson had s t o l e n g a s o l i n e on two previous occa-
sions.
2. Stevenson had been involved i n a "high speed chase"
w i t h t h e Great F a l l s c i t y p o l i c e w h i l e d r i v i n g a v e h i c l e on
C e n t r a l Avenue. The p o l i c e r e p o r t s t a t e d t h a t he was drunk a t
t h e time he was apprehended. A s a r e s u l t of t h i s i n c i d e n t ,
Stevenson was r e f e r r e d t o t h e j u v e n i l e department where he was
placed on a n . e i g h t week p r o b a t i o n and h i s d r i v i n g p r i v i l e g e s were
suspended f o r s i x t y days.
3. Stevenson was involved i n a vaguely described
" f i g h t i n g i n c i d e n t " t h e f a c t s of which were n o t a s c e r t a i n e d by
t h e j u v e n i l e department. During t h e hearing stevenson's mother
attempted t o explain t h a t t h i s i n c i d e n t had occurred when he was
a t t a c k e d by another minor and badly beaten.
4. Stevenson was involved i n t h e attempted t h e f t of a
garden hose. The j u v e n i l e department considered t h i s matter t o
be s o t r i v i a l t h a t no d i s p o s i t i o n was made.
Avery a l s o t e s t i f i e d t h a t Stevenson had dropped out of school
on November 30, 1973, and had n o t attended school s i n c e t h a t time.
The s t a t u t e which p e r t a i n s t o t h e relinquishment of
j u r i s d i c t i o n from youth c o u r t t o a d u l t c r i m i n a l c o u r t i s s e c t i o n
10-1229, R.C.M. 1947, which s t a t e s i n p e r t i n e n t p a r t :
"(1) A f t e r a p e t i t i o n has been f i l e d a l l e g i n g
delinquency t h e c o u r t may, upon motion of t h e county
a t t o r n e y , before hearing t h e p e t i t i o n on i t s m e r i t s ,
t r a n s f e r t h e matter of prosecution t o t h e d i s t r i c t
court i f :
"(a) t h e youth charged was s i x t e e n (16) y e a r s
d a g e o r more a t t h e time of t h e conduct a l l e g e d t o be
unlawful and t h e unlawful a c t i s one o r more of t h e
following:
" ( i i i ) aggravated a s s a u l t a s defined i n s e c t i o n
94-5-202, R.C.M. 1947;
"(iv) robbery a s defined i n s e c t i o n 94-5-401,
R.C.M. 1947;
"(b) a hearing on whether t h e t r a n s f e r should be
made i s held i n conformity with t h e r u l e s on a hearing on
a p e t i t i o n a l l e g i n g delinquency, except t h a t t h e hearing
w i l l be t o t h e youth c o u r t without a j u r y ; and
"(c) n o t i c e i n w r i t i n g o f t h e t i m e , place and
purpose of t h e hearing i s given t o t h e youth, h i s counsel,
and h i s p a r e n t s , guardian o r custodian a t l e a s t t e n (10)
days before t h e hearing * * *.
"(3) Upon t r a n s f e r t o d i s t r i c t c o u r t , t h e judge
s h a l l make w r i t t e n f i n d i n g s of t h e reasons why t h e j u r i s -
d i c t i o n of t h e c o u r t was waived and t h e c a s e t r a n s f e r r e d
t o d i s t r i c t c o u r t . 1t
Section 10-1229 was enacted in 1974 as part of a compre-
hensive new act called the "Montana Youth Court Act", sections
10-1201 through 10-1252, R.C.M. 1947. This Act established the
rights of minors and brought ~ontana'syouth court procedures up
to date with relatively recent decisions of the United States
Supreme Court. In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L ed 2d
527; Kent v, United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L ed 2d
84; In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L ed 2d 368.
The predecessor statute to section 10-1229 was section 10-603(c),
R.C.M. 1947, as amended, which read in pertinent part:
( ) When the juvenile court has jurisdiction of any
"c
child sixteen (16) years of age, or over, who is ac-
cused of committing or the attempt to commit murder,
manslaughter * * * then the county attorney may request
the juvenile court to be permitted to file an informa-
tion against the juvenile in district court, or, when
the facts warrant, the juvenile judge may order the
county attorney to proceed against the juvenile in dis-
trict court on an information.
"~eforemaking such order the juvenile judge must hear
the matter by an informal preliminary hearing to deter-
mine first, if there is probable cause to believe the
juvenile has committed the felony, and, second, to de-
termine whether under the circumstances it appears
necessary for the best interest of the state that the
juvenile be held to answer the information in district
court.+<* +c"
In Lujan v. District Court, 161 Mont. 287, 296, 505 P.
2d 896, this Court reviewed section 10-603 and established the
following criteria to guide the district court judge in the exer-
cise of his discretion:
"* * * We
further hold that in the exercise of his
discretion in juvenile transfer proceedings under
the present Montana Juvenile Court Act, the judge
of the juvenile court is entitled to consider the
nature and enormity of the alleged crime, the serious
personal injuries inflicted on the victim, and the
absence of provocation as the controlling determinants
in ordering waiver and transfer to adult criminal court
for prosecution. " (Emphasis supplied).
An examination of section 10-1229 of Montana's recently
enacted Youth Court Act compels the conclusion that the criteria
established in Lujan are no longer the "controlling determinants "
in the consideration of whether the youth court should waive juris-
diction. Instead the applicable c r i t e r i a a r e s t a t e d i n section
"(d) t h e c o u r t f i n d s upon t h e h e a r i n g of a l l r e l e v a n t
evidence t h a t t h e r e a r e r e a s o n a b l e grounds t o b e l i e v e
that:
" ( i ) t h e youth committed t h e d e l i n q u e n t a c t
a l l e g e d ; and
" ( i i ) t h e s e r i o u s n e s s of t h e o f f e n s e and t h e
p r o t e c t i o n of t h e community r e q u i r e s t r e a t m e n t of t h e
youth beyond t h a t a f f o r d e d by j u v e n i l e f a c i l i t i e s ; and
" ( i i i ) t h e a l l e g e d o f f e n s e was committed i n an
a g g r e s s i v e , v i o l e n t , o r premeditated manner.
"(2) I n t r a n s f e r r i n g t h e m a t t e r of p r o s e c u t i o n t o
the d i s t r i c t court t h e court s h a l l a l s o consider t h e
following f a c t o r s :
"(a) t h e s o p h i s t i c a t i o n and m a t u r i t y of t h e
youth, determined by c o n s i d e r a t i o n of h i s home, environ-
mental s i t u a t i o n , and emotional a t t i t u d e and p a t t e r n of
living;
"(b) t h e r e c o r d and previous h i s t o r y of t h e
youth, i n c l u d i n g previous c o n t a c t s w i t h t h e youth c o u r t ,
law enforcement a g e n c i e s , youth c o u r t s i n o t h e r j u r i s -
d i c t i o n s , p r i o r p e r i o d s of p r o b a t i o n and p r i o r commit-
ments t o j u v e n i l e i n s t i t u t i o n s ;
" ( c ) t h e p r o s p e c t s f o r adequate p r o t e c t i o n of
t h e p u b l i c and t h e l i k e l i h o o d of r e a s o n a b l e r e h a b i l i t a -
t i o n of t h e youth by t h e u s e of procedures, s e r v i c e s and
f a c i l i t i e s c u r r e n t l y a v a i l a b l e t o t h e youth c o u r t . 11
Summarizing a l l t h e evidence p r e s e n t e d a t t h e t r a n s f e r
h e a r i n g we n o t e t h a t t h e r e was evidence4 (1) which tended t o
e s t a b l i s h r e a s o n a b l e grounds t o b e l i e v e t h a t Stevenson had commit-
ted the a c t s alleged; (2) t h a t t h e o f f e n s e was committed i n
an a g g r e s s i v e , v i o l e n t o r premeditated manner;.ancl, (3) t h e r e was
evidence r e g a r d i n g h i s p r i o r school and o f f e n s e record. However,
t h i s i s n o t enough. The Montana Youth Court Act r e q u i r e s more
b e f o r e t h e youth c o u r t i s a u t h o r i z e d t o r e l i n q u i s h i t s j u r i s d i c t i o n
Too,
t o the adult criminal court./ juvenile t r a n s f e r hearings a r e not
a d j u d i c a t o r y h e a r i n g s w i t h i n t h e meaning of c o n s t i t u t i o n a l r e -
quirements. Allen F. Breed, E t c . , P e t i t i o n e r v. Gary Steven Jones,
U. S. 9 S.Ct. 9 L ed 2d 9
No. 73-1995, May 27, 1975.
Here, t h e evidence presented a t t h e t r a n s f e r h e a r i n g
was i n s u f f i c i e n t t o waive j u r i s d i c t i o n because t h e r e was no
showing t h a t "the s e r i o u s n e s s of t h e o f f e n s e and t h e p r o t e c t i o n '
of t h e community r e q u i r e s treatment of t h e youth beyond t h a t
a f f o r d e d by j u v e n i l e f a c i l i t i e s " a s r e q u i r e d by s e c t i o n 10-
1229 (1) (d) ( i i ) . The s t a t e argues t h e very n a t u r e of t h e o f f e n s e s
demonstrates t h e need f o r treatment of t h e youth beyond a v a i l -
able juvenile f a c i l i t i e s . W cannot agree.
e To assume t h a t
j u v e n i l e f a c i l i t i e s a r e inadequate from t h e mere f a c t t h a t t h e
youth i s charged with a s e r i o u s o f f e n s e , completely i g n o r e s t h e
r e h a b i l i t a t i v e purpose of t h e Act a s s e t f o r t h i n s e c t i o n 10-1202,
and i s tantamount t o a j u d i c i a l admission t h e j u v e n i l e f a c i l i t i e s
i n Montana a r e inadequate t o cope w i t h t h e hard c o r e youth offender.
W w i l l n o t do t h i s .
e
The t r a n s f e r h e a r i n g was f u r t h e r d e f e c t i v e because t h e
youth c o u r t f a i l e d t o c o n s i d e r t h e " s o p h i s t i c a t i o n and m a t u r i t y
of t h e youth, determined by c o n s i d e r a t i o n of h i s home, environ-
mental s i t u a t i o n , and emotional a t t i t u d e and p a t t e r n of l i v i n g "
a s mandated by s e c t i o n 10-1229(2) ( a ) .
During t h e h e a r i n g , M r . Avery touched on t h i s m a t t e r
briefly:
"MR. AVERY: Well, a l l w e know, your honor, i s w h i l e
he was on probation t o our o f f i c e , and a t t h a t time
he was l i v i n g i n t h e home, and I d i d t a l k t o h i s
f a t h e r , along w i t h M r . Schwanke, who was o r i g i n a l l y
h i s a t t o r n e y , l a s t Friday, i n m o f f i c e , where I was
y
going t o t r y t o g e t some family h i s t o r y i n t h i s c a s e ,
and s o on and a t t h a t time M r . Stevenson t o l d m e
t h a t t h e boy had been l i v i n g a t home, so t h a t ' s a l l I
have t o go on, and our o f f i c e has no o t h e r knowledge
than t h a t . " (Emphasis s u p p l i e d ) .
This c u r s o r y examination i s i n s u f f i c i e n t t o properly c o n s i d e r
a f a c t o r mandated by s t a t u t e .
F i n a l l y , t h e r e was no i n q u i r y i n t o t h e important q u e s t i o n
of whether Stevenson could be r e h a b i l i t a t e d w i t h i n t h e p r e s e n t
s t r u c t u r e of t h e youth system. A s a r e l a t e d m a t t e r , t h e r e was no
i n q u i r y i n t o t h e a v a i l a b i l i t y of f a c i l i t i e s , programs and personnel
under the youth court system and whether he would be amenable to
these. Yet, a judicial consideration of this factor is required
by section 10-1229(2) (c) .
In State v. Gibbs, 94 Idaho 908, 500 P.2d 209, the Supreme
Court of Idaho reversed the waiver of juvenile court jurisdiction
in a case where a seventeen year old youth was charged with two
separate acts of burglary with intent to commit larceny. After
establishing specific criteria for the waiver of juvenile court
jurisdiction, the court held the lower court had erred when it
failed to make a specific finding, supported by substantial evi-
dence, that the juvenile was not amenable to the rehabilitative
programs existing under the juvenile court system. For other
decisions stressing the importance of considering a juvenile's
amenability to the juvenile court system as a factor in deciding
whether juvenile court jurisdiction should be waived see: In re
Patterson, 210 Kan. 245, 499 P.2d 1131; State v Yard, 109 Ariz.
.
198, 507 P.2d 123; P.H. v. State, (Alaska 1972), 504 P.2d 837;
In re Johnson, 17 Md. App. 705, 304 A.2d 859; H. v. Superior
Court of Los Angeles County, 91 Cal. Rptr. 600, 478 P.2d 32.
~ontana's Youth Court Act does not require that the youth
court make a specific finding that the youth is not amenable to
the rehabilitative programs currently existing under the system
as a condition precendent to a valid waiver of jurisdiction. How-
ever, it does require the judge to carefully consider this factor
along with all other factors set out by statute.
The transfer hearing is a critically important phase in
youth proceedings. Black v. United States, 355 F.2d 104 (D.C.
Cir. 1965); Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045,
16 L ed 2d 84. Its importance is highlighted by F. Thomas Schorn-
horst in his article entitled "The Waiver of Juvenile Court Juris-
diction: Kent Revisited", 43 Ind. Law Journal 583, 586:
1 1 *
~ ~
There is convincing evidence that most
juvenile court personnel, and the judges them-
selves, regard the waiver of jurisdiction as the
most severe sanction that may be imposed by the
juvenile court. Not only is the juvenile exposed
m t h e probability of severe punishment, but the
confidentiality and individuality of the juvenile
proceeding is replaced by the publicity and norma-
tive concepts of penal law; the child acquires a
public arrest record which, even if he is acquitted,
will inhibit his rehabilitation because of the
opprobrium attached thereto by prospective employers
'/c 2': *.I1
The importance of a transfer hearing demands that the
youth court carefully consider - factors set forth in section
all
10-1229. Evidence relevant to each factor should be preserved in
the transcript in order to permit meaningful appellate review.
After the presentation of all evidence, written findings giving
reasons why the jurisdiction of the court was waived must be
made pursuant to section 10-1229(3). It is not necessary that
all factors be resolved against the youth in order to justify the
waiver, nor is it necessary that the youth court make an arith-
metical type calculation as to the weight it assigns each factor.
However, all factors set forth by statute must be carefully con-
sidered and a very deliberate evaluation of each individual case
must be effectuated prior to the entry-ofa waiver order.
This cause is remanded to the youth court of Cascade County
for further proceedings consistent with this Opinion.
We Concur:
1
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Chief Justice -
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Justices.