In Re Stevenson

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 / ' < I ;\ 4-*b-d-&.adW--*----*&-d------.L-e Chief Justice - dP Justices.