State v. Milk

519 N.W.2d 313, 37 A.L.R. 5th 895, 1994 S.D. LEXIS 94, 1994 WL 320834

• Court: South Dakota Supreme Court
• Decided: July 6, 1994
• Docket: 18483
• Status: Published

Opinions

WUEST, Justice.

Corey Edward Milk (Milk) appeals claiming the order of the circuit court transferring his case from juvenile to adult court was in error. We reverse in part and affirm in part.

FACTS

Milk is a minor male whose date of birth is January 6, 1977. Milk has a history of contacts with the juvenile justice system in South Dakota. At the age of eleven, Milk was alleged to be a child in need of supervision (ChINS) and was ordered to be placed in shelter care at the Threshold Shelter Care Program. In March 1990, Milk was adjudicated delinquent on a simple assault charge. In July 1991, he was adjudicated delinquent on a charge of injury to property in the third degree for breaking a window at his mother’s house. Thus, although there have been other referrals and probation violations, and Milk has been placed at both McCrossan’s Boys Ranch and the South Dakota State Training School, he had — prior to the incidents arising in this case — only two delinquency adjudications for offenses that both would have been misdemeanors if committed by an adult.

In November 1992, the State filed a ChINS petition alleging that Milk was beyond the control of his parents or guardians and was unamenable to parental control. A temporary custody hearing was held on November 16, 1992 and the court ordered that Milk be held in the temporary custody of Threshold Youth Services. Milk failed to appear for a dispositional hearing three days later; thus, Judge Kean issued a warrant of arrest, ordering that Milk be placed in the Minnehaha County Juvenile Detention Center (JDC) when he was located. Milk was located and on November 25, 1992 a hearing, was held on the allegation that Milk was a child in need of supervision as well as probation violations. The court determined that the allegations were true and correct and sentenced Milk to serve ninety days at the JDC. On January 12, 1993, the State filed a petition alleging Milk had committed three counts of burglary in the third degree under SDCL 22-32-8 and one count of burglary in the second degree under SDCL 22-32-3.¹ On January 15, 1993, another petition was filed alleging that Milk had committed aggravated assault on a juvenile corrections officer under SDCL 22-18-1.1(3). On February 9, 1993, a petition was filed alleging a separate third degree burglary offense committed by Milk.

On February 20,1993, shortly after noon, a disturbance occurred at the JDC involving Milk and two other juveniles. The juveniles threw plastic chairs, overturned foosball and ping-pong tables, and broke off broom handles to use as weapons to keep staff and law enforcement away. When a deputy moved toward Milk (along with other officers) Milk took one downward swing with the broom handle. The broom handle hit the deputy in the corner of the eye and the shoulder. The deputy stated that after he was hit, “I had a little blood, but that’s about all.” The deputy did not seek medical attention. The deputy’s glasses were on his lapel; the glasses were knocked off and broken. Based on these actions, Milk was charged in a delinquency petition with aggravated assault on a law enforcement officer under SDCL 22-18-1.1(3), intentional damage to property under SDCL 22-34-1, and attempted escape under SDCL 22-11A-1 and -2.

The State filed motions to transfer the entire matter² to adult court. A transfer hearing was held, and the court found prose-cutive merit on the intentional damage to property, aggravated assault, and four burglary charges,³ and found that it would be contrary to the best interests of Milk and of the public for the juvenile court to retain jurisdiction over Milk.

A court trial was held on the aggravated assault and intentional damage to property charges. Milk was found guilty on the aggravated assault charge.⁴ The court issued a judgment and sentenced Milk to a suspended four-year penitentiary sentence upon various conditions. Milk raises two issues.⁵

I. DID THE LOWER COURT ERR IN RULING THAT HEARSAY IS ADMISSIBLE EVIDENCE AT A TRANSFER HEARING?

At the transfer hearing, Milk objected to admission of certain hearsay testimony of two witnesses. Evidentiary rulings of the court are reviewed under an abuse of discretion standard. Zens v. Chicago, Milwaukee, St. Paul and Pac. R.R. Co., 479 N.W.2d 155, 159 (S.D.1991) (citations omitted). See State v. Christopherson, 482 N.W.2d 298, 300 (S.D.1992).

The first line of hearsay came in the testimony of Detective Don Satterlee (Satterlee) of the Sioux Falls Police Department. The purpose of Satterlee’s testimony was to link Milk to a number of burglaries with which he was charged. Satterlee had not personally investigated the burglaries, nor had he interviewed any of the victims. The knowledge that Satterlee had of the burglaries was based on his reading of reports that had been .prepared by investigating officers, which officers were not called to testify. Milk objected to these portions of Satterlee’s testimony as hearsay; the court overruled the objections.

. The second item of hearsay objected to by Milk was an exhibit prepared by juvenile probation officer Chuck Wildes (Wildes). Wildes testified that he “sat down one night when there was nobody around” with an unofficial file regarding Milk, and “went through the whole case and kind of did the whole file, did a synopsis of it just to give me a grasp of what was contained in the file and for quick reference — mainly for my reference.” Wildes prepared a list, and noted every referral from the police department, including numerous items on which there was never any official action, adjudication or disposition. The list was prepared to assist Wildes in his testimony. Milk objected to admission of the exhibit, claiming it was a hearsay violation. The court overruled, stating that the exhibit would be allowed as a “business report.” We note that in finding of fact IV, the court referred to this exhibit as, “Corey Milk’s juvenile record, which record was introduced and received during the Transfer hearing[J” (Emphasis added.)

“Hearsay” is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted.” SDCL 19-16-1(4). Hearsay is not admissible except as provided by law. SDCL 19-16-4.

The State argues that the rules of evidence are not strictly applicable in a juvenile transfer hearing. SDCL 19-9-14 provides, however, that the South Dakota Rules of Evidence “apply to all actions and proceedings in the courts of this state.” One of the eight listed exceptions to the general applicability of the rules is, “Disposition hearings in juvenile court.” SDCL 19-9-14(7). SDCL 26-7A-K17) defines a “disposi-tional hearing” as “a hearing after adjudication at which the court makes an interim or final decision in the ease.”⁶ Since transfer hearings take place before adjudicatory hearings — not after — they cannot be characterized as “dispositional” under our statutory scheme. Although this court has stated that transfer hearings are “not adjudicatory in nature,” we have not held that transfer hearings are dispositional, a position urged by the dissent. State v. Flying Horse, 455 N.W.2d 605, 608 (S.D.1990). Further, such a holding is not warranted under our statutory scheme, which specifically provides that dispositional hearings are held “after adjudication.” SDCL 26-7A-l(17). Juvenile transfer hearings are clearly not included among the listed exceptions to the application of South Dakota Rules of Evidence. Id. Hearings held for the purpose of determining whether a juvenile matter should be transferred to adult court are “proceedings” held in the circuit courts of this state; thus, the rules of evidence are applicable.

Further, we have noted that a juvenile transfer hearing, “is a ‘ “critically important” action determining vitally important statutory rights of the juvenile[.]’” In re L.V.A., 248 N.W.2d 864, 867 (S.D.1977) (citing Kent v. United States, 383 U.S. 541, 553, 86 S.Ct. 1045, 1053, 16 L.Ed.2d 84, 93 (1966)). See State v. Harris, 494 N.W.2d 619, 623 (S.D.1993). We refuse to expand the list of exceptions to the applicability of the rules of evidence to include juvenile transfer hearings.

The dissent presents authority from other states in support of the argument that hearsay evidence should be admissible at juvenile transfer hearings. Rather, citation of this authority serves to support the argument that the decision to admit hearsay at juvenile transfer hearings should be made via the legislative or rulemaking process. Each of these other states have made legislative or rulemaking decisions that allow for hearsay evidence at such hearings.⁷ The state-by-state variations in statutory scheme are revealed through examination of statutory or case law from these other jurisdictions. See, e.g., Aeiz.R.CRImPro. 5.4(c) (under which juvenile transfer hearings are conducted, and providing that, “The finding of probable cause shall be based on substantial evidence, which may be hearsay in whole or in part” including written reports of experts, documentary evidence without foundation and testimony of witnesses concerning declarations of others); Cal.Welf. & Inst.Code § 707 (providing that the determination of “fitness” of a juvenile for adult court is based in large part on a written report of the juvenile’s probation officer detailing an investigation of the behavioral patterns and social history of the minor); Haw.Rev.Stat. § 571-22(b)(5)-(6), (b)(8) (directing the transfer court to consider: “The sophistication and maturity of the minor as determined by consideration of the minor’s home, environmental situation, emotional attitude and pattern of living.... The record and previous history of the minor including previous contacts with the family court, other law enforcement agencies, courts in other jurisdictions, prior periods of probation to this court, or prior commitments to juvenile institutions.... All other relevant matters.”); Ill.Comp.Stat. ANN. 705 ILCS 405/5-22(1) (“All evidence helpful in determining [the transfer question under Ill.Comp.Stat.Ann. 705 ILCS 405/5-4(3)(b)] including oral and written reports, [which] may be admitted and may be relied upon to the extent of its probative value, even though not competent for the purposes of the adjudicatory hearing.”); Ind.Code Ann. § 31-6-2^1 (directing the juvenile court to make a “full investigation” in making the transfer determination); Iowa Code § 232.-45(5) (“At the waiver hearing all relevant and material evidence shall be admitted.”); Kan. StatAnn. § 38-1636(e) (directing the court to consider, in part “[T]he number of alleged offenses unadjudieated and pending ... the previous history of the [juvenile], including ... any other previous history of antisocial behavior or patterns of physical violence ... the sophistication or maturity of the [juvenile] as determined by consideration of the [juvenile’s] home, environment, emotional attitude, pattern of living or desire to be treated as an adult; ... written reports and other material relating to the [juvenile’s] mental, physical, education and social history[.]”); MiCH.R.Evid. 1101(b)(7) (providing that the rules of evidence “do not apply ... [to] (7) Juvenile court proceedings.”); In re Welfare of T.D.S., 289 N.W.2d 137 (Minn.1980) (citing Minn.Stat.Ann. § 260.155(1) which provides that “juvenile court ‘hearings on any matter ... may be conducted in an informal manner.’” and quoting Hennepin County Juvenile Court Rule 6.8 (“The court may consider any relevant evidence including hearsay and conclusions^]”); Nev.Rev.Stat. § 62.080 (directing the juvenile court to make a “full investigation”); Ohio Rev.Code Ann. § 2151.-26(A)(1)(e) (directing the transfer court to make “an investigation, including a mental and physical examination of the child made by a public or private agency or a person qualified to make the examination ... and consideration of all relevant information and factors[.]”); Wash.Rev.Code Ann. § 13.40.110 (limiting juvenile transfer to felony crimes only, and directing the court to consider, “the relevant reports, facts, opinions and arguments presented by the parties and their counsel.”); Wis.Stat. § 48.299(4)(b) (“Hearsay evidence may be admitted [in a juvenile proceeding] if it has demonstrable circumstantial guarantees of trustworthiness.”). Thus, the statutory scheme of each of these states is materially different from our own, and reflects a legislative or rulemaking decision on evidence to be used at a transfer hearing.

Particularly instructive is the case and statutory history from Connecticut and New Hampshire. In the ease of In re Ralph M., 211 Conn. 289, 559 A.2d 179 (1989), the state supreme court decided that the language of the statute in question did not contain a clear exclusion of hearsay evidence in juvenile transfer hearings. 559 A.2d at 188. The 1990 Connecticut General Assembly clarified that question for the courts when it amended the statute to explicitly provide that at transfer hearings, “the child shall have the right ... to confront the witnesses against him. The procedures provided in section 54^46a shall apply at such hearing^]” Conn.Gen. Stat. § 46b-126 (referencing Conn.Gen.Stat. § 54-46a, which provides in pertinent part that, “The court shall be confined to the rules of evidenee[.]”)

In a 1989 ease, the New Hampshire Supreme Court considered the question of whether hearsay evidence was admissible in a juvenile transfer hearing. New Hampshire v. Nicholas H., 131 N.H. 569, 560 A.2d 1156, 1158 (1989). The court stated:

In the absence of a clear and specific exemption, we hold that the rules of evidence apply to juvenile certification hearings. Accordingly, we conclude that the hearsay statements [of a witness] were inadmissible and that the district court improperly considered them in making its finding of prosecutive merit under [N.H.Rev.StatAnn. § 169-B:24 — the juvenile transfer statute].

Nicholas H., 560 A.2d at 1158 (emphasis added). The reasoning expressed by the New Hampshire Supreme Court follows that expressed in this opinion. The Nicholas court explained:

According to Rule 802 [our SDCL 19-16-4] hearsay evidence is inadmissible unless it otherwise falls within an exception. Rule 1101(b) [our SDCL 19-9-14] makes the rules of evidence applicable to all “criminal proceedings unless otherwise provided by the constitution or statutes of the State of New Hampshire or these rules.”

560 A.2d at 1158. Thus, in reviewing rules of evidence quite similar to our own, the New Hampshire Supreme Court determined that juvenile transfer (certification) hearings do not fall within any listed exception. Subsequent to the Nicholas decision, New Hampshire’s Rules of Evidence were specifically amended to provide that the rules of evidence “do not now apply to juvenile certification proceedings.” See In re Eduardo L., 136 N.H. 678, 621 A.2d 923, 930 (1993). This same rationale should apply in the instant case; that is, until and unless our rules of evidence specifically exempt juvenile transfer hearings from the requirements of the rules of evidence, we similarly hold that the rules of evidence do apply to juvenile transfer hearings.

The circuit court’s ruling, allowing hearsay evidence to be used in a juvenile transfer hearing, was an abuse of discretion. We reverse the circuit court’s ruling and hold that hearsay evidence is not admissible in a juvenile transfer hearing.

II. DID THE CIRCUIT COURT ABUSE ITS DISCRETION IN DECIDING TO TRANSFER MILK TO ADULT COURT?

SDCL 26-11-4 provides in pertinent part:

The circuit court may, in its discretion, in any case of a delinquent child, after transfer hearing, permit such child to be proceeded against in accordance with the laws that may be in force in this state governing the commission of crimes, petty offenses or violation of municipal ordinances. In such cases the petition filed under chapter 26-8 shall be dismissed. The hearing shall be conducted as hereinafter provided.

At the transfer hearing, the court shall consider only whether it would be contrary to the best interest of the child or of the public to retain jurisdiction over the child.

The following factors may be considered by the court in determining whether a child should be transferred: (1) The seriousness of the alleged offense to the community and whether protection of the community requires waiver; (2) Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) Whether the alleged offense was against persons or property. with greater weight being given to offenses against persons; (4) The prosecutive merit of the complaint. The state shall not be required to establish probable cause to show prosecutive merit; (5) The desirability of trial and disposition of the entire offense in one proceeding when the child’s associates in the alleged offense are adults; (6) The record and previous history of the juvenile; (7) The prospect for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile, if he is found to have committed the alleged offense, by the use of procedures, services and facilities currently available to the juvenile court....

If the court finds that a child should be held for criminal proceedings ... the court shall enter an order certifying to that effect. The order shall contain findings of-fact upon which the court’s decision is based. The findings shall not be set aside upon review unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. ...

SDCL 26-11-4 (1977) (emphasis added). Thus, the statute sets out that the decision to transfer is within the discretion of the court. See State v. Rios, 499 N.W.2d 906, 907 (S.D.1993) (citing Harris, 494 N.W.2d at 624) (“[I]t is within the discretion of the trial court to determine whether to transfer juvenile proceedings to adult court.”). “An abuse of discretion ‘refers to a discretion exercised to an end or purpose not justified by and clearly against, reason and evidence.’ ” Flying Horse, 455 N.W.2d at 608 (quoting State v. Bartlett, 411 N.W.2d 411, 413 (S.D.1987)). “ ‘[Tjhere must be substantial evidence in the record to support the juvenile court’s finding that it would be contrary to the best interests of the child OR of the public to retain jurisdiction of the child.’ ” Rios, 499 N.W.2d at 907 (citing Harris, 494 N.W.2d at 624) (emphasis original) (citations omitted)).

As directed by SDCL 26-11-4, the circuit court entered an order, as well as findings of fact and conclusions of law upon which the decision to transfer Milk was based. In regard to the seven factors listed in SDCL 26-11-4, we have stated that, “ ‘It is not necessary that evidence be presented on all of these factors at each transfer hearing, or that the trial court must make express findings on each factor.’ ” Harris, 494 N.W.2d at 624 (quoting In re D.M.L., 254 N.W.2d 457, 459 (S.D.1977)). Controlling weight is not given to any one factor, and the court is not “confined to a consideration of only the listed factors to the exclusion of others.” Id. (citing SDCL 26-11-4; D.M.L., 254 N.W.2d at 459-60; L.V.A., 248 N.W.2d at 869-70).

We have reviewed the entire record in this case. Even without the testimony that should properly have been excluded as hearsay, the determination of the court to transfer the matter is supported by “substantial evidence.” Rios, 499 N.W.2d at 907. In reviewing the findings of the court, and giving due regard to the opportunity of the trial court to judge the credibility of the witnesses, we cannot say that the findings of the court were clearly erroneous. SDCL 26-11-4. “Since the decision was not clearly against reason and evidence, the trial court did not err in ordering the transfer.” Flying Horse, 455 N.W.2d at 608.

The order of the circuit court transferring the matter to adult court is affirmed.

SABERS and AMUNDSON, JJ., concur. MILLER, C.J., and HENDERSON, J., concur in part and dissent in part.

1 . The transfer court set forth the following conclusion of law as to the burglary charges: "That there is prosecutive merit and/or probable cause as to the four counts of Burglary on November 18, 1992[.]”

2 . The State's initial transfer motion was filed on February 8, 1993, and involved the burglary and aggravated assault charges. On February 23, 1993, the State filed a supplementary motion to include transfer regarding the charges stemming from the February 20 incident at the JDC.

3 . Milk was arraigned and entered pleas of not guilty to the burglary charges on May 24, 1993; however, the record does not indicate the disposition of the burglary charges.

4 . At the conclusion of the trial held to the court, the trial judge held that with regard to the intentional damage to property charge that "all of the elements have been proved except for the value that we have been arguing about here[.] ... I'm seriously concerned about that.... And I think the only concern that I would have is whether or not it was over $500 qr under $500 and between $100 and $500, which would mean the difference between a felony and a class I misdemeanor. So then I will actually reserve the judgment on the [intentional damage charge] for a 48-hour period[.] ... Otherwise I would find then that it was the lesser included, which would have been the Class I misdemeanor of 100 to $500.” Milk waived his right to delay sentencing on the aggravated assault charge, and the court proceeded with sentencing. The record contains no indication of any further disposition on the intentional damage to property charge.

5 . In Milk's brief, he states that he "appeals the whole of the transfer to adult court, the judgment of guilt, and the sentence of the Court pursuant to SDCL 23A-32-2.” However, Milk presents only the two issues discussed herein. Failure to comply with the rules of appellate procedure "is a waiver of all issues not raised, briefed and argued.” Graham v. State, 328 N.W.2d 254, 255 n. 2 (S.D.1982).

6 . SDCL 26-7A-87 further describes the nature of dispositional hearings under our statutory scheme. A reading of SDCL 26-7A-87 clarifies that the “dispositional phase of the proceedings" follows the order of adjudication. An interim or final dispositional decree may address "custody, placement, care, shelter or detention of the child[.]” Id. See SDCL 26-7A-88 (providing guidelines for the court after adjudication and before disposition). Again, because transfer hearings occur before adjudication, they cannot be dispositional under South Dakota’s statutory scheme.

7 . While we refer to these proceedings as “transfer” hearings, some states refer to these procedures as "certification,” "waiver" or "reference” hearings.