Blore v. C. N.

301 N.W.2d 636
CourtNorth Dakota Supreme Court
DecidedJanuary 23, 1981
DocketCiv. No. 9828
StatusPublished
Cited by8 cases

This text of 301 N.W.2d 636 (Blore v. C. N.) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Blore v. C. N., 301 N.W.2d 636 (N.D. 1981).

Opinion

SAND, Justice.

This is an appeal by P.W.N., a child, from an order issued by the juvenile court of Ward County transferring jurisdiction of P.W.N. to the county court in and for Burke County having jurisdiction over the offense charged for prosecution.

In the early morning of 23 May 1980 P.W.N. allegedly shot Burke County sheriff Russell McIntyre. At the time of the shooting P.W.N. was 16 years of age. P.W.N. was taken into custody at approximately 10:00 a. m. on 23 May 1980 and an informal detention hearing was held on the same day resulting in an order for the further detention of P.W.N.

On 29 May 1980 a petition was filed in juvenile court which provided in part:

[638]*638“That during the period from May 11, 1980 to May 23,1980, said child ran away from his parental home and the said child committed the offenses of numerous burglaries, thefts, unlawful possession of firearms and attempted murder as well as the unruly act of runnaway away [sic] and refusing to obey reasonable and lawful commands of his parents.”

On the same day the juvenile supervisor of Ward County filed a request for transfer of jurisdiction from juvenile court to an appropriate court having criminal jurisdiction over the offense charged.

The juvenile court set a transfer for 4 June 1980. The transfer hearing was delayed until 13 June 1980 through a stipulation of counsel and court order to permit an evaluation of P.W.N. at the North Dakota State Hospital in Jamestown, North Dakota.

P.W.N., his parents, and his court-appointed attorney appeared at the transfer hearing on 13 June 1980 and opposed the transfer of jurisdiction. After the transfer hearing and a separate hearing on a motion by P.W.N. to dismiss the petition based on allegations of statutory irregularities in the transfer proceedings, the juvenile court issued an order, dated 3 July 1980, which terminated juvenile court jurisdiction and transferred jurisdiction to the county court in and for Burke County having original jurisdiction over the offense charged. P.W.N. appealed from that order to this Court pursuant to § 27-20-56, North Dakota Century Code.1

P.W.N. raises several interrelated issues on appeal. P.W.N. asserts that a transfer hearing is the first part of the court proceedings in the adjudicatory phase of juvenile proceedings and is not a dispositional proceeding. Therefore, P.W.N. asserts that the rules of evidence apply to transfer hearings2 and that hearsay evidence was improperly received and considered by the juvenile court in making its decision to transfer jurisdiction from juvenile court to adult court. A closely related question deals with whether or not P.W.N. was denied his constitutional and statutory rights to confront and cross-examine witnesses against him because of the use of the hearsay evidence.3

The Uniform Juvenile Court Act4 in some sections refers to dispositions and adjudications. See §§ 27-20-30; 27-20-31; 27-20-32; 27-20-33; 27-20-35; 27-20-36; 27-20-39; and 27-20-40. We note that in some instances we have categorized juvenile proceedings into adjudicatory and dis-positional phases. Interest of 267 N.W.2d 807 (N.D.1978); Interest of R.D.S., 259 N.W.2d 636 (N.D.1977). However, these cases and statutes do not deal with transfer hearings, and therefore are unpersuasive on the issue of whether or not a transfer hearing is adjudicatory or disposi-[639]*639tional. Because of the unique aspects and requirements of a transfer hearing, we believe any such categorization is not warranted.

Transfer hearings provided for in § 27-20-34, NDCC, permit transfer to adult court for prosecution if:

“b. (1) The child was sixteen or more years of age at the time of the alleged conduct;
(2) A hearing on whether the transfer should be made is held in conformity with sections 27-20-24, 27-20-26, and 27-20-27;
(3) Notice in writing of the time, place, and purpose of the hearing is given to the child and his parents, guardian, or other custodian at least three days before the hearing; and
(4) The court finds that there are reasonable grounds to believe that:
(a) The child committed the delinquent act alleged;
(b) The child is not amenable to treatment or rehabilitation as a juvenile through available facilities;
(c) The child is not treatable in an institution for the mentally retarded or mentally ill; and
(d) The interests of the community require that the child be placed under legal restraint or discipline.”

Pursuant to this section, a transfer hearing must be “in conformity with sections 27-20-24, 27-20-26, and 27-20-27.” Section 27-20-24, NDCC, requires the hearing to be “in an informal but orderly manner” and, upon request of the court, the state’s attorney “shall present the evidence in support of any allegations of the petition not admitted.” Section 27-20 — 26 insures the right to counsel. Section 27-20-27 deals with other basic rights and provides in subdivision (1) as follows:

“1. A party is entitled to the opportunity to introduce evidence and otherwise be heard in his own behalf and to cross-examine adverse witnesses.”

The United States Supreme Court, in Kent v. United States, 383 U.S. 641, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), addressed the requirement of a transfer hearing when it stated:

“We do not mean by this to indicate that the hearing to be held must conform with all of the requirements of a criminal trial or even of the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.” Kent v. United States, 383 U.S. at 562, 86 S.Ct. at 1057, 16 L.Ed.2d at 97-98.

We recently dealt with transfer hearings and the right to cross-examine witnesses in In Interest of K.G., 295 N.W.2d 323 (N.D. 1980). In that case the only evidence on the record relating to whether or not the child committed the delinquent act alleged was “remarks of the state’s attorney, repeating statements made to him during a state’s attorney’s inquest and investigation.” We held that:

“... when a matter is disputed, the [transfer] hearing requires that evidence supporting reasonable grounds to believe that the child committed the delinquent act must be produced by witnesses available for cross-examination.” In Interest of K.G., 295 N.W.2d at 326.

We also noted that the right of confrontation and cross-examination in § 27-20-27(1) lacked congruity with the requirement of § 27-20-29(4) that the juvenile court receive and consider “written reports ... not otherwise competent,” at some stages of hearings involving delinquency proceedings and the requirement for this Court on appeals under § 27-20-56(1), to consider the “files, records, and minutes.” However, the use of reports at transfer hearings was not before us then, and we declined to comment on their admissibility.5

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301 N.W.2d 636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blore-v-c-n-nd-1981.