DH v. State

561 P.2d 294
CourtAlaska Supreme Court
DecidedMarch 21, 1977
Docket2837
StatusPublished

This text of 561 P.2d 294 (DH v. State) is published on Counsel Stack Legal Research, covering Alaska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DH v. State, 561 P.2d 294 (Ala. 1977).

Opinion

561 P.2d 294 (1977)

In the Matter of D.H., a minor, Appellant,
v.
STATE of Alaska, Appellee.

No. 2837.

Supreme Court of Alaska.

March 21, 1977.

*295 Dick L. Madson, Cowper & Madson, Fairbanks, for appellant.

Jane F. Kauvar, Asst. Dist. Atty., Harry L. Davis, Dist. Atty., Douglas Mertz, Asst. Atty. Gen., Fairbanks and Avrum M. Gross, Atty. Gen., Juneau, for appellee.

Before BOOCHEVER, C.J., and RABINOWITZ, CONNOR, ERWIN and BURKE, JJ.

OPINION

BOOCHEVER, Chief Justice.

D.H. appeals from a judgment which waived jurisdiction under the Children's Rules over him at a time when he was 16 years old and permitted the state to prosecute him as an adult. He raises issues as to whether it was error: (1) to permit a probation officer to offer an opinion on his amenability to treatment, (2) to admit into evidence a police officer's testimony regarding other acts or crimes D.H. stated he considered committing and (3) whether the evidence presented supports the findings of fact and order waiving jurisdiction under the Children's Rules although no inquiry was made into D.H.'s background.

We find no error as to the first two allegations, but in view of the serious consequences of prosecuting a 16-year-old as an adult, we find that the evidence presented to the trial court was inadequate for a waiver of jurisdiction under the Children's Rules.

Between January 1, 1976 and February 11, 1976, D.H., who was then 16 years old, participated in three armed robberies. A *296 considerable amount of planning went into at least one of the robberies.[1]

Approximately the first half of the hearing was devoted to establishing probable cause for believing D.H. had committed the charged offenses. At the close of this portion of the hearing, the trial court stated that sufficient evidence had been presented on this issue to justify a finding of probable cause. This holding is not questioned on appeal.

The evidence presented during the remainder of the hearing was devoted to establishing whether the defendant was amenable to treatment under the jurisdiction of the Children's Rules.

Thekla Johnson, a probation officer, testified at the hearing.[2] Ms. Johnson had not interviewed D.H., his parents, teachers or employers. Based solely on what she heard at the hearing pertaining to the offenses, her knowledge of the correctional facilities available for Alaskan juveniles and her experience in handling some 150 to 200 juvenile cases, she expressed the opinion that D.H. was not amenable to treatment under the jurisdiction of the children's rules.

It is contended that the court erred in permitting Ms. Johnson to express that opinion. We have adopted a liberal policy towards the admission of expert testimony,[3] particularly in nonjury cases.[4] Expert *297 testimony is admissible if it would appreciably assist the trier of fact in deciding the issue in question.[5] The opinion must be based on sufficient facts,[6] but those facts need not be within the first-hand personal knowledge of the witness.[7]

The decision to admit opinion testimony into evidence lies within the sound discretion of the trial judge and is reviewable only for abuse of discretion. In this case, the trial court was aware of the basis for Ms. Johnson's opinion and was able to evaluate the weight to be given to her testimony. Ms. Johnson had supervised a number of cases involving minors, was familiar with Alaskan facilities for treatment and with the facts pertaining to the offenses committed by D.H. While we find it surprising that a probation officer would express an opinion as to D.H.'s amenability to treatment without benefit of a personal interview or any meaningful background information, we cannot say that it was error to permit the testimony.

Nor do we find that the trial court committed error in allowing a police officer to testify as to D.H.'s admission that he had planned additional crimes. This information was relevant to D.H.'s amenability to treatment and could have supported either side of the question. The evidence cast light on the extent of D.H.'s inclination towards anti-social conduct. At the same time, D.H.'s confession on the day of his apprehension and his willingness to reveal his plans could be considered an indication that he was not so hardened and sophisticated as not to be amenable to treatment as a minor.

D.H.'s remaining contention is that there was inadequate evidence to support the waiver of jurisdiction. Under Alaska law, if at a hearing the court finds probable cause that a minor under 18 years of age is delinquent and that he is not amenable to treatment under the provisions of the act relating to juveniles, it orders the case closed. Thereafter, the minor may be prosecuted as an adult.[8] AS 47.10.060(d) specifies:

A minor is unamenable to treatment under this chapter if he probably cannot be rehabilitated by treatment under this chapter before he reaches 21 years of age. In determining whether a minor is unamenable to treatment, the court may consider the seriousness of the offense the minor is alleged to have committed, the minor's history of delinquency, the probable cause of the minor's delinquent behavior, and the facilities available to the division of youth and adult authority for treating the minor.

Children's Rule 3 provides in relevant part:

(h) Findings of Fact. The order closing the case must be accompanied by written findings of fact clearly demonstrating that:
(1) The court made full inquiry into the allegations of the petition,
(2) The question of waiver of children's proceedings and of closing the children's case were given careful consideration by the court, and
(3) All statutory conditions for waiver of child proceedings and closing the case were established.

The trial judge's findings of fact, entered on the record, show that he gave careful consideration to the question of waiver. A serious question is presented, however, as to whether statutory conditions for waiver were adequately established.

Considering each element of AS 47.10.060(d), we note first the seriousness of the offenses committed by D.H., Armed robbery, with its likelihood of violence, is *298 among our most serious crimes.[9] Second, D.H. has no significant past history of delinquency, and no efforts have previously been undertaken to furnish him treatment. He had but one prior difficulty, an incident when he threw eggs at a building. D.H. was placed on open probation[10] for a period of six months. Upon the successful completion of that period, the record of delinquency was to be expunged, and the judge so ordered. Third, the testimony concerning the facilities available for treating the minor was adequate for the court to fully consider the issue.

The court, however, had little information concerning the probable cause of D.H.'s delinquent behavior. It was aware only of the nature of the offenses, the fact that D.H. was apparently not in need of funds and of his statement that he regarded the commission of the crimes as a game. We must determine whether this information was sufficient to satisfy the requirements of AS 47.10.060(d).

In two prior decisions, we have dealt with the problems presented at waiver hearings. In P.H. v. State,

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D. H. v. State
561 P.2d 294 (Alaska Supreme Court, 1977)

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Bluebook (online)
561 P.2d 294, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dh-v-state-alaska-1977.