Molick v. D.G.

1999 ND 219, 602 N.W.2d 516, 1999 N.D. LEXIS 237
CourtNorth Dakota Supreme Court
DecidedDecember 1, 1999
DocketNo. 990084
StatusPublished
Cited by11 cases

This text of 1999 ND 219 (Molick v. D.G.) 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
Molick v. D.G., 1999 ND 219, 602 N.W.2d 516, 1999 N.D. LEXIS 237 (N.D. 1999).

Opinion

KAPSNER, Justice.

[¶ 1] L.G. (Larry, a pseudonym) appealed from a juvenile court order transferring from juvenile court to the district court charges against Larry for felony possession of a controlled substance with intent to deliver. We hold the State has demonstrated probable cause to believe Larry committed the offense charged, warranting transfer of the case to district court for prosecution, and we affirm.

I

[¶ 2] Larry, a 17-year-old minor, resides in the home of his mother, J.G. (Julie, a pseudonym). She contacted the Fargo police on January 16, 1999 and asked for assistance in determining the contents of a large Rubbermaid tote container she had found in Larry’s bedroom closet. The container was padlocked and, with the advice and assistance of the Fargo police officers, Julie obtained a key from a locksmith and opened the container. It contained approximately 12 pounds of marijuana in one-pound zip lock plastic bags.

[¶ 3] The police returned to Julie’s home later that day to question Larry. Larry admitted to the police officers that he had brought the container with the marijuana into the house, but he claimed he was holding it for another person. The officers also searched Larry’s person and found a small silver pipe with burnt marijuana residue on it, a baggie containing a small amount of marijuana, and $116 in cash. Larry was taken into custody and charged in juvenile court with class B felony unlawful possession of marijuana with intent to deliver, in violation of N.D.C.C. §§ 19-03.1-05 and 19-03.1-23 and two related misdemeanor offenses.

[¶ 4] The State subsequently filed a petition to transfer prosecution of the offenses from juvenile court to district court. An evidentiary hearing on the transfer request was heard in juvenile court before a judicial referee. She recommended denial of the transfer on the felony charge, because the State had failed to demonstrate there was probable cause. The referee found the State failed to meet its burden to transfer because “there was no direct [518]*518possession linked to this child ... and also because of the fact a third party may have had access to the place where the [controlled substance] was located in the-child’s parental home.... ” The referee also recommended denial of the transfer request on the two misdemeanor charges, because Larry was amenable to treatment.

[¶ 5] The State requested review by a juvenile court judge of the referee’s recommendation to deny transfer of the felony charge. The State did not request review of the recommendation to deny transfer of the misdemeanor charges, and they have been resolved in the juvenile court. The juvenile court judge, after reviewing the record, concluded the State had demonstrated probable cause Larry committed the offense charged and ordered transfer of the prosecution to the district court. Larry appealed.

II

[¶ 6] Larry contends the juvenile court judge committed reversible error by failing to review the transcript of the proceedings held before the judicial referee and by not permitting Larry’s counsel to file a brief or argue legal issues at a hearing during the review process. When a party requests a judge to review the findings and recommendations of a judicial referee, the review “shall be a review of the record, unless the court orders a hearing of the proceeding.” N.D. Sup.Ct. Admin. R. 13, § 11(b); see also In Interest of K.S., 500 N.W.2d 608, 604 (N.D.1993). The juvenile court judge, in his “Order on Request for Review,” stated the court “reviewed the file and its contents and the Findings of Fact and Conclusions of Law” of the judicial referee. Although not entirely clear from the record, it appears the proceedings before the judicial referee were recorded by shorthand and the transcript prepared from those notes was not available to the juvenile court judge prior to entry of the order on review. Nevertheless, the file which the judge reviewed did contain very detailed factual statements in the'police reports and the affidavits of the investigating detectives, including a police inventory of the contraband items found on Larry’s person and in his bedroom closet. The referee’s recommendation also included findings which were reviewed by the judge. It is, of course, important the juvenile court judge, in reviewing the referee’s recommendation, review the entire record, including a transcript of the proceedings, and give careful consideration to the issues. See In Interest of J.A.G., 552 N.W.2d 317, 324 (N.D.1996). Assuming, without deciding, that the judge did not review a tape or transcript of the hearing held before the judicial referee, we conclude the failure to complete that part of the review is harmless under the circumstances. The facts upon which the State relies to demonstrate probable cause are not really in dispute here. Furthermore, Larry’s counsel does not argue that any testimony given during the hearing before the referee is in conflict with or contradicts the relevant facts as developed in the police reports and affidavits which were reviewed by the judge.

[¶ 7] This Court’s review of a juvenile court’s order is similar to a trial de novo, by which we independently review the evidence and consider the files, records, and minutes or transcript of the evidence of the juvenile court. N.D.C.C. § 27-20-56; In Interest of A.E., 1997 ND 9, ¶ 3, 559 N.W.2d 215. Having reviewed the transcript of the proceedings before the referee, we conclude all relevant factual matters presented at the hearing were included in the reports and affidavits reviewed by the judge and any failure by the judge to review a transcript of the proceedings did not constitute reversible error.

[¶ 8] The State’s request for review was filed on February 12, 1999 and its brief in support of the request was filed on February 26, 1999. The order granting the request was not filed until March 9, 1999. There is no indication in the record that Larry’s counsel made any response to the [519]*519State’s petition or brief. There is certainly nothing in the record showing the court prohibited Larry from filing a brief or otherwise responding to the State’s request for review. Under these circumstances, we conclude the juvenile court did not commit reversible procedural error in its review of the referee’s recommendation.

III

[¶ 9] Larry asserts the juvenile court judge erroneously concluded the referee erred in refusing to admit or consider certain admissions made by Larry. Larry contends the admissions are tainted because they were made by him without benefit of counsel and without a knowing, intelligent, and voluntary waiver of counsel. Larry’s counsel conceded at oral argument, however, that these transfer proceedings do not preclude Larry from seeking suppression of the admissions or other allegedly tainted evidence at the subsequent criminal trial. The rules of evidence, other than those with respect to privileges, do not apply to transfer hearings in juvenile court. N.D.R.Ev. 1101(d)(3). A juvenile court transfer hearing is equivalent to a preliminary examination in a criminal case, with relaxed standards for admission of evidence, and the North Dakota Rules of Evidence are inapplicable. In Interest of C.R.M., 552 N.W.2d 324, 327 (N.D.1996). We, therefore, hold the juvenile court’s consideration of admissions made by Larry in determining whether to transfer the case to district court did not constitute reversible error.

IV

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Bluebook (online)
1999 ND 219, 602 N.W.2d 516, 1999 N.D. LEXIS 237, Counsel Stack Legal Research, https://law.counselstack.com/opinion/molick-v-dg-nd-1999.