No. 13517
IN THE SUPREME COURT OF THE STATE OF MONTANA
1977
IN THE MATTER OF
THOMAS EDWARD STAPELKEMPER,
A Child Under Eighteen Years of Age.
Appeal from: District Court of the Eighth Judicial District,
Honorable R. J. Nelson, Judge presiding.
Counsel of Record:
For Appellant:
Howard F. Strause argued, Great Falls, Montana
For Respondent:
Michael Greely, Attorney General, Helena, Montana
J. Mayo Ashley, Assistant Attorney General,
argued, Helena, Montana
J. Fred Bourdeau, County Attorney, appeared,
Great Falls, Montana
Submitted: January 14, 1977
Filed: IVPR 16 1377
Mr. Justice Gene B. Daly delivered the Opinion of the Court.
This is an appeal from a judgment of the youth court of
Cascade County, granting the petition to transfer appellant's
cause to adult criminal court.
On June 24, 1976, a petition was filed in the youth court
of Cascade County alleging appellant was under the age of 18 years
and a delinquent child in that he committed acts in violation
of section 94-4-103, R.C.M. 1947, attempted deliberate homicide,
and section 94-5-202 ()d,
l() R.C.M. 1947, aggravated assault.
On June 29, 1976, the county attorney filed a petition
to transfer the prosecution of appellant to adult criminal cuurt
pursuant to section 10-1229, R.C.M. 1947. Prior to a hearing on
the petition to transfer, the youth court ordered, and appellant
underwent, psychiatric evaluation at the Northcentral Montana
Community Mental Health Center. A hearing on the matter of transfer
was held on July 16 and 20, 1976. On July 26, 1976, the youth
court judge concluded the youth court should waive jurisdiction
and transferred the cause to the district court in accordance with
the petition of the county attorney. This appeal is taken from that
order.
Appellant alleges three errors in support of his claim
the transfer was invalid:
1. Appellant was denied his constitutional right to
present the defense of mental disease or defect excluding respon-
sibility.
2. It was an abuse of discretion for the youth court judge
to transfer the matter of prosecution to the district court.
3. Section 10-1229, R.C.M. 1947, does not authorize a
Pouth court judge to transfer to the district court the prosecu-
tion of a youth charged with the act of attempt, as set forth
in section 94-4-103, R.C.M. 1947.
First,appellant contends the youth court erred when it
denied him the right to assert the defense of mental disease or
defect excluding responsibility at the transfer hearing. Appellant
argues a careful reading of Kent v. United States, 383 U.S. 541,
86 S.Ct. 1045, 16 L ed 2d 84'and In re Gault, 387 U.S. 1, 87 S.W.
1428, 18 L ed 2d 527, leads to the conclusion that the concept
of due process and fair treatment mandates allowing juveniles
the right to enter the defense of insanity. It is further argued
the California case of In re M.G.S., a minor, 72 Cal.Rptr. 808,
267 C.A.2d 329 and the Wisconsin case of In re Winburn v. Wisconsin,
32 Wisc.2d 152, 145 N.W.2d 178, stand for the proposition that
the deprivation of a juvenile's right to present the defense of
legal insanity in juvenile court proceedings violates the consti-
tutional guarantee of due process of law,
-
In Kent the U.S. Supreme Court addressed the matter of
jurisdiction waiver procedure and held that a juvenile court could
not waive jurisdiction over the juvenile, thus denying the juvenile
his statutory right to the exclusive jurisdiction of the juvenile
court, without a "full investigation" of all available information
deemed relevant, i.e., the waiver hearing must measure up to the
essentials of due process and fair treatment. The Gault, Winburn
and M.G.S. decisions, on the other hand, pertain to the assertion
of the insantity defense at the adjudicatory stage of the juvenile
process, where cornrnitment :. to a state institution may follow.
This Court is in agreement with the above courts and
their attempts to insure the juvenile's constitutional right to
assert the defense of legal insanity at the adjudicatory stage in
youth court proceedings. Yet, we note a critical distinction
between the juvenile court proceedings in the above noted cases
and the transfer hearing in the instant case. Specifically,
the transfer hearing is not an adjudicatory state in the juvenile
process. The transfer hearing is a pre-adjudicatory proceeding
conducted for the purpose of determining whether the juvenile is
to be treated as a juvenile or as an adult. Once this determina-
tion is resolved, the defense of mental disease or defect excluding
responsibility may be asserted at the adjudicatory stage in either
the youth court or the district court. Appellant was not denied
his constitutional right to assert the insanity defense when the
youth court judge failed to allow entry of the plea at the trans-
fer hearing.
Second, appellant contends the youth court's transfer of
the prosecution to the district court was an abuse of discretion.
Section 10-1229, R.C.M. 1947, sets forth the criteria to be used
by the youth court judge in considering a transfert:
"Transfer to criminal court. ( ) After a petition
1
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 prose-
cution to the district court if:
" d the court finds upon the hearing of all
()
relevant evidence that there are reasonable grounds
to believe that:
"i
() the youth committed the delinquent act alleged;
and
"(ii) the seriousness of the offense and the pro-
tection of the community requires treatment of the
youth beyond that afforded by juvenile facilities; and
"(iii) the alleged offense was committed in an
aggressive, violent, or premeditated manner.
"2
() In transferring the matter of prosecution to
the district court the court shall 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 jurisdictions,
prior periods of probation and prior commitments to
juvenile institutions;
"c
() the prospects for adequate protection 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."
Appellant contends the requirements of subsection ()d()
l()i and
subsection ()d(i
l()i) were not satisfied since the state failed
to show ( ) that appellant acted purposely or knowingly, i.e.,
1
with the intent to commit an illegal or delinquent act, and
( ) the seriousness of the offense and the protection of the
2
community required that appellant receive treatment other than
that afforded by juvenile facilities. It is further argued the
youth court failed to consider the provisions set forth in subsection
(2) (a) and (c) . We do not agree.
The record of the transfer hearing shows that six
witnesses presented testimony: (1) a psychiatric social worker
employed by Northcentral Montana Community Mental Health Center,
who took part in appellant's psychological examination; (2)the
police officer who initially investigated the offenses for which
appellant is charged; (3) an aftercare counselor with the de-
partment of institutions who had personal knowledge of appellant's
juvenile history; ( ) a youth probation officer who had personal
4
knowledge of appellant's police and school records; (5) the super-
intendent of Pine Hills School for Boys, a Montana youth correc-
tion institution; and, ( ) the assistant superintendent of the
6
Swan River Youth Camp, a forestry youth camp for young offenders.
Based upon the testimony elicited from these witnesses
the youth court judge found that appellant had an extensive record
of delinquent activities; that he had undergone rehabilitation
programs; that there was reasonable grounds to believe appellant
committed the offenses charged in an aggressive and violent manner;
that appellant was not suffering from a disease or defect of the
mind which would preclude criminal responsibility for his conduct;
that reasonable grounds existed to believe appellant premeditatedly
committed the acts charged against him; that the psychiatric
evaluation showed appellant not to be psychotic, but to possess
a progressive personality or character disorder of such severity
that appellant is virtually without social conscience; that
appellant is immature, impulsive, aggressive and dangerous; that
Pine Hills School for Boys is inadequate for the purpose of
receiving or treating appellant; that the record and prior history
of appellant, his emotional attitude and pattern of living, his
sophistication, social immaturity and public protection, require
handling and treatment other than can be provided by the youth
court.
We conclude from the record of the transfer proceedings
that the youth court did not abuse its discretion in transferring
the matter of prosecution pursuant to section 10-1229, R.C.M.
1947. The youth court sufficiently determined, after a proper
examination of relevant criteria that it would be in the best
interests of the public and the juvenile, for the youth court
to waive jurisdiction and transfer the matter of prosecution to
the district court. See: Mikulovsky v, State, 54 Wisc.2d 699,
196 N.W.2d 748; In re Stevenson, Mont . , 538 P.2d 5, 32
Third, appellant contends the youth court erred when it
ordered the transfer of I the attempt charge. Section 10-1229,
R.C.M. 1947, sets forth with particularity those matters of
prosecution which may be transferred to the district court.
" a * * * the unlawful act is one or more of the
()
following :
" i criminal homicide as defined in section 94-5-101,
()
R.C.M. 1947;
"(ii) arson as defined in section 94-6-104, R.C.M. 1947;
"(iii) aggravated assault as defined in section 94-5-
202, R.C.M. 1947;
"(iv) robbery as defined in section 94-5-401, R.C.M.
1947;
'
I(v) burglary or aggravated burglary as defined in
section 94-6-204, R.C.M. 1947;
"(vi) sexual intercourse without consent as defined
in section 94-5-503, R.C.M. 1947;
"(vii) aggravated kidnapping as defined in section
94-5-303, R.C.M. 1947;
"(viii) possession of explosives as defined in section
94-6-105, R.C.M. 1947;
"(ix) criminal sale of dangerous drugs for profit as
included in section 54-132, R.C.M. 1947."
The statute is clear and unambiguous. This Court fails
to find any language in section 10-1229, R.C.M. 1947, which
would provide for the transfer of the charge of attempted
deliberate homicide. The youth court erred when it ordered the
transfer of the attempt charge and such portion of the order is
stricken.
The judgment of the youth court is affirmed in part
and reversed in part, in accordance opinion.
We Concur:
sitting for Chief Justice Paul G.
Hatfield.