No. 12371
I N THE SUPREME COURT OF THE STATE OF M N A A
OTN
1972
CLIFFORD JEROME LUJAN,
Petitioner,
THE DISTRICT COURT OF THE FOURTH
JUDICIAL DISTRICT O THE STATE O
F F
MONTANA,
Respondent.
ORIGINAL PROCEEDING :
Counsel o f Record:
For P e t i t i o n e r :
T e r r y A. Wallace, Missoula , Montana.
Richard P. Heinz , County A t t o r n e y , a r g u e d , P o l s o n ,
Montana.
Submitted: December 4 , 1972
~ eided :
c
JAN 2 4 1973
Mr. J u s t i c e Frank I . Haswell delivered t h e Opinion of the Court.
T h i s i s an original proceeding seeking a w r i t of prohibition
t o prevent further prosecution of second degree a s s a u l t charges against
petitioner in the d i s t r i c t court of the fourth judicial d i s t r i c t , Lake
County. P e t i t i o n e r , who was 17 years, 11 months old a t the time of the
alleged a s s a u l t b u t reached his 18th birthday p r i o r t o the t r a n s f e r hearing
here involved, contests the v a l i d i t y of the proceedings in the juvenile
court resulting in the t r a n s f e r of his case t o the d i s t r i c t court f o r a d u l t
criminal prosecution.
P e t i t i o n e r is Clifford Lujan, an Indian t r a i n e e a t the Kicking
Horse Job Corps Center i n Lake County a t the time of the alleged a s s a u l t
on Benito Ochoa. The alleged a s s a u l t occurred s h o r t l y a f t e r midnight on
August 10, 1972, a t the scenic turnout on Highway #93 about two miles south
of Ronan i n Lake County. Petitioner and the victim were found there by
a Ronan policeman. The victim had been badly beaten and was in an uncon-
scious condition. H was taken t o a Ronan hospital by the policeman and
e
petitioner.
Following an investigation by the Lake County s h e r i f f ' s o f f i c e ,
petitioner was arrested and lodged in the Lake County j a i l i n Polson. On
August 16, 1972, a p e t i t i o n was f i l e d i n the juvenile court charging Lujan
w i t h the offense, and on the same day the county attorney f i l e d a motion
f o r leave t o f i l e an information i n the d i s t r i c t court charging Lujan w i t h
the crime of second degree a s s a u l t . Citation was issued and served; and
the matter was s e t f o r hearing i n the juvenile court on August 30. After
two continuances, one a t the request of counsel f o r Lujan and one a t the
request of the county attorney, a preliminary hearing was held i n the
juvenile court on September 20 pursuant t o section 10-603(c), R.C.M. 1947,
f o r the purpose of determining whether Lujan should be prosecuted a s an
a d u l t i n the d i s t r i c t court on the second degree a s s a u l t charge.
Four witnesses were called by the county attorney and cross-
examined by counsel f o r Lujan. Additionally, written statements of Clifford
Lujan and his brother, Arthur, and photographs of the scene of the alleged
assault were offered in evidence and considered by the Court. No evidence
was offered on behalf of Clifford Lujan. In general, the evidence before
the court implicated Clifford Lujan in the beating of Ochoa, and in par-
ticular the written statement of Clifford Lujan, admitted in evidence
over objection, contains an admission that he hit the victim.
At the conclusion of the hearing, the judge of the juvenile court
granted the motion of the county attorney for leave to file an information
charging Lujan with second degree assault in the district court. The
instant proceeding followed to test the validity of that ruling. An order
to show cause was issued, the county attorney filed a return thereto and
supporting brief, and oral argument was heard on behalf of both parties.
Petitioner cites three errors in support of his claim that the
transfer proceedings were inval id: (1 ) Petitioner's statement was improper-
ly admitted in evidence, (2) petitioner was denied "due process" in that
his counsel was refused an opportunity to make a presentation on behalf of
petitioner, and (3) the case was transferred to the adult criminal court
without a proper determination that such transfer was in the best interests
of the state.
The first alleged error requires no extended discussion. Upon
oral argument, counsel for petitioner conceded that sufficient "probable
cause" existed without petitioner's statement. The record at the hearing
amply demonstrates "probable cause" by independent evidence unrelated to
petitioner's statement. Thus the claimed error, if any, in admitting pe-
ti tionerts statement in evidence is harmless and affects no substantial
right of petitioner . Accordingly, it furnishes no basis for rendering
the proceeding invalid. Rule 14, M.R.App.Civ.P.
In the second issue for review, petitioner claims he was denied
"due process" because his counsel was refused the opportunity to make a
presentation on petitioner's behalf. Petitioner contends the judge of the
juvenile court treated the transfer hearing strictly as an evidentiary
hearing and denied petitioner's counsel the opportunity to argue the case
or to be heard otherwise, thereby infecting the hearing with an arbitrari-
ness condemned as a violation of "due process" and fundamental fairness
in Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L ed 2d 84.
Let us examine the facts. At the conclusion of the county
attorney's presentation, the court stated: "NOW, Mr. Wal lace, the court
will hear you. " Thereupon counsel for petitioner moved to dismiss the
county attorney's petition and asked the court to rule on the question of
whether probable cause had been established. The court declined to do so
in the following language:
"THE COURT: If I am going to rule there is probable
cause that is the end of the discussion, and I am not
going to rule on anything until I hear you fully; and
if you want to be heard further the court will hear
you. I'
Thereupon the fol 1 owing occurred:
"Mr. Wallace: What I have to say now will get into
the intent of the juvenile court act as promulgated.
"THE COURT: I am not interested or concerned with
that, Mr. Wallace. As far as I know, any jurisdiction
or discretion in that matter, the law is there and the
court is required to follow it as well as it can. You
are in the appellant court, as long as you preserve, as
you have here from time to time, the points you want to
raise of that nature. You have done all you have had to
do, all you are required to do, so far as I know, in
defense of this man at this point."
Further coll oquy occurred between petitioner Is counsel and the court from
which it is apparent that petitioner's counsel sought to argue his inter-
pretation of the intent and purpose of the Juvenile Court Act, the required
findings of the court in transfer proceedings, and related legal arguments.
The court refused to permit this argument.
At the time the court granted leave to the county attorney to file
an information in the district court charging petitioner with second degree
assault, the court made the following findings:
"The court finds specifically that probable cause for
bringing this defendant to trial does exist, and that
the probable cause is of such nature that failure to
bring this defendant t o t r i a l on the charge of second
degree assault would f a i l to preserve the best and
necessary i n t e r e s t of the people of the State of Mon-
tana as recited i n t h e i r criminal laws and in the
juvenile code both."
W are aware of no "due process" and fundamental fairness require-
e
ment in Kent, in the United States or Montana Constitutions, or in Montana
s t a t u t e s t h a t requires the juvenile court t o permit oral legal argument i n
support of counsel ' s objections. Here there was no denial of the r i g h t of
counsel to s t a t e his objections f o r the record t o the extent necessary f o r
a meaningful appellate review. There was no denial of an opportunity to
present evidence in opposition to transferring the case from juvenile court
t o adul t criminal court f o r prosecution pursuant t o section 10-603 ( c ) ,
R.C.M. 1947. In the instant case, there was simply a refusal by the judge
of the juvenile court to permit extended oral argument by p e t i t i o n e r ' s
counsel on legal questions concerning the philosophy, intent, and purpose
of the Juvenile Court Act, the legal requirements relating t o juvenile court
transfer proceedings, and similar matters. Permitting oral argument on
such matters is necessarily discretionary with the court, and w find no
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abuse of t h a t discretion.
Proceeding t o the final issue f o r review, petitioner contends
t h a t the jurisdiction of the juvenile court was waived and the case trans-
ferred t o adult criminal court for prosecution without a proper determin-
ation t h a t such waiver and transfer was in the best i n t e r e s t s of the s t a t e .
Petitioner argues t h a t the juvenile court determined t h a t waiver and trans-
f e r was i n the best i n t e r e s t s of the s t a t e solely because there was probable
cause t o believe petitioner had committed a felony. Petitioner claims the
waiver and transfer here was in violation of section 10-603(c), R.C.M. 1947,
and unconstitutional under the -decision.
Kent
The relevant provisions of section 10-603(c), R.C.M. 1947 s t a t e :
"(c) when the juvenile court has jurisdiction of any
child sixteen (16) years of age, or over, who i s
accused of committing * * * assault in the f i r s t or
second degree * * * then the county attorney may
request the juvenile court to be permitted t o f i l e
an information against the juvenile in d i s t r i c t court,
***
"Before making such an order the juvenile judge must
hear the matter by an informal preliminary hearing t o
determine f i r s t , i f there i s probable cause t o believe
the juvenile has committed the felony, and second, t o
determine whether under the circumstances i t appears
necessary f o r the best i n t e r e s t of the s t a t e that the
juvenile be held t o answer the information in d i s t r i c t
court."
In the instant case, i t i s conceded t h a t the hearing established
probable cause to believe the juvenile had committed a felony, viz: the
crime of second degree assault on Benito Ochoa. Petitioner contends,
however, t h a t the second requirement of the s t a t u t e , properly construed,
requires a finding t h a t the juvenile court apparatus cannot effectively
deal with the particular juvenile involved, which was n o t made in the in-
s t a n t case. Petitioner points out that the above s t a t u t e was amended in
1969 t o make transfer of second degree assault proceedings t o the adult
criminal court optional rather than mandatory, and that the express legis-
l a t i v e purpose of the present Juvenile Court Act i s a s stated in section
10-601, R.C.M. 1947:
" * * * as f a r as practicable, any delinquent child shall
be treated, not as a criminal, b u t as misdirected and
misguided, and needing a i d , encouragement, help and
assistance".
W decline t o so construe the s t a t u t e .
e The language of section
10-6036-) , R.C.M. 1947, requires the juvenile court "to determine whether
under the circumstances i t appears necessary f o r the best i n t e r e s t of the
s t a t e " t h a t the juvenile be prosecuted in adult criminal court. Not in
the abstract, b u t under the circumstances of the individual case being
considered. Not exclusively f o r the immediate benefit of the juvenile,
b u t what i s i n the best i n t e r e s t of the s t a t e , i . e . the people of the s t a t e
as a whole, including Lujan.
What are the circumstances in the instant case? A juvenile by l e s s
than one month a t the time of comission of the alleged offense, who became
an adult in the eyes of the criminal law before the transfer hearing was
held. An accusation of a brutal, aggravated, senseless felony without
semblance of provocation. A victim s t i l l hospitalized. An accused f a r
removed from the influences of family, home, and normal adult supervision.
An alien environment i l l suited to rehabilitation.
What i s the best i n t e r e s t of the s t a t e in the instant case? Is
the juvenile court apparatus equipped t o deal with an individual such as
Lujan? O i s the criminal court process and machinery preferable? What
r
about considerations not d i r e c t l y related t o his own immediate s e l f - i n t e r e s t
such as deterrence, the safety and protection of the public, and justice
in i t s broadest sense?
These are some of the d i f f i c u l t questions the judge of the juve-
n i l e court must answer in arriving a t his determination. In the instant
case, w cannot say the f a c t s indicate an abuse of discretion on the judge's
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part in determining pursuant t o the s t a t u t e that the jurisdiction of the
juvenile court should be waived in favor of adult criminal court proceedings.
Additionally, and perhaps most important, counsel f o r Lujan con-
tends the constitutional requirements i n Kent were violated in the instant
case, rendering invalid the transfer of his case to the adult criminal court.
Counsel f o r Lujan argues the constitutional requirements of due process,
assistance of counsel, and fundamental fairness required by -were not
Kent
observed in t h a t counsel was refused an opportunity t o make a presentation
on Lujan's behalf; t h a t the waiver and transfer were made solely upon the
finding of probable cause; that the transfer order contained no reasons
therefor; and because the judge did n o t apply the c r i t e r i a s e t forth in -
Kent
in ordering the transfer.
The record does not bear out Lujan's claim t h a t his counsel was
denied the opportunity t o make a presentation in his behalf for the reasons
heretofore stated. Nor was the judge required to apply the considerations
s e t forth in the policy statement of the D i s t r i c t of Columbia Juvenile Court,
quoted in the appendix t o t h a t decision. T h a t policy statement a t most i s
no more than a rule of t h a t court concerning the standards t h a t particular
court would apply i n determining waiver and transfer under the D i s t r i c t of
Columbia's Juvenile Court Act. A Montana juvenile court i s in no way
bound t o apply the same standards under the Montana Juvenile Court Act.
The real thrust of p e t i t i o n e r ' s argument i s that constitutional
due process and fundamental fairness were denied in the instant case by
f a i l u r e of the court t o give any reasons f o r i t s transfer order, thereby pre-
cluding a meaningful appellate review of i t s exercise of discretion i n
ordering transfer of the case t o adult criminal court. Corollary t o t h i s
argument i s petitioner 's contention that the transfer order was based solely
on a finding of probable cause without consideration of whether the best
i n t e r e s t of the s t a t e required such transfer.
-clearly
Kent requires a statement of reasons for a waiver and
transfer order under constitutional "due process" and "assistance of counsel"
requirements. The purpose of t h i s i s t o insure careful consideration and
the exercise of discretion by the juvenile court in determining whether
waiver and transfer should be ordered, together with a meaningful review
by the appellate court of any abuse of discretion by the juvenile court.
W do not construe the provisions of the Montana Juvenile Court
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Act as requiring conventional findings of f a c t or an express, formal s t a t e -
ment of the reasons for ordering the waiver and transfer. I f the reasons
motivating the exercise of the juvenile c o u r t ' s discretion in ordering the
waiver and transfer sufficiently appear in the record of the hearing to per-
mit meaningful appellate review of the discretion exercised, constitutional
requirements are s a t i s f i e d .
Here, the juvenile court made an express finding of the existence
of probable cause and an express finding "that the probable cause i s of such
nature that f a i l u r e to bring t h i s defendant to t r i a l on the charge of
second degree assault would f a i l t o preserve the best and necessary i n t e r e s t
of the people of the State of Montana as recited in t h e i r criminal laws and
in the juvenile code both." During the course of the hearing the judge of
the juvenile court specifically pointed out to counsel for petitioner the
nature of the alleged crime and the admissions of the defendant, together
with corroborating evidence. The judge speci f i c a l l y inquired concerning
the gravity of the victim's injuries and the prospects of the victim's
survival. The judge clearly indicated t h a t under the circumstances of
t h i s particular case he considered the nature and enormity of the crime
of which Lujan was accused, and of which the judge found probable cause
t o e x i s t , outweighed any other considerations. The judge specifically
stated a f t e r reviewing the admissions in the evidence a t Lujan's transfer
hearing:
"There i s clearly and obviously, on any experience I
have--whatever i t has been m privilege or misfortune
y
t o have over the years--probable cause. If there i s
probable cause there clearly i s an involvement of the
best i n t e r e s t of the State that the accused be treated
f o r these purposes as an adult and not as a juvenile.''
W hold t h a t the record indicates the reasons for the waiver and
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transfer w i t h sufficient s p e c i f i c i t y t o s a t i s f y constitutional and statutory
requirements. W further hold t h a t in the exercise of his discretion in
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juveni 1e transfer proceedi ngs under the present Montana Juveni 1e Court Act,
the judge of the juvenile court i s e n t i t l e d t o 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 t o adult criminal court for prosecution.
The order t o show cause heretofore issued i s vacated and the
petition dismissed.
Associate Justice
c o n a1