Anthony Lee R. v. State, s. 27772
| Decision Date | 30 December 1997 |
| Docket Number | 27889 and 28130,Nos. 27772,s. 27772 |
| Citation | 952 P.2d 1,113 Nev. 1406 |
| Parties | ANTHONY LEE R. a/k/a Tony R., Appellant, v. The STATE of Nevada, Respondent. GENO L., a minor, Appellant, v. The STATE of Nevada, Respondent. JACKTORIAN H., aka Tori H., a minor, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Morgan D. Harris, Public Defender, Susan Deems Roske, Deputy Public Defender, Las Vegas, for Appellant Anthony Lee R.
Frankie Sue Del Papa, Attorney General, Carson City, Stewart L. Bell, District Attorney, Tim O'Brien, Deputy District Attorney, Clark County, for Respondent State of Nevada.
Moran & Associates, Las Vegas, for Appellant Geno L.,
Frankie Sue Del Papa, Attorney General, Carson City, Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, and Frank Ponticello, Deputy District Attorney, Clark County, for Respondent State of Nevada.
Morgan D. Harris, Public Defender, R. Michael Gardner, Deputy Public Defender, Las Vegas, for Appellant Jacktorian H.
Frankie Sue Del Papa, Attorney General, Carson City, Stewart L. Bell, District Attorney, James Tufteland, Chief Deputy District Attorney, Clark County, for Respondent State of Nevada.
This is an appeal from an order of the juvenile division of the district court which certifies the subject minor, Jacktorian H. ("J.H."), for prosecution as an adult. In this opinion we clarify the certification provisions of former NRS 62.080, as amended in 1995, and remand to the juvenile division with instructions to reconsider the matter in light of our interpretation of NRS 62.080(2)(b).
Prior to the 1995 amendment to NRS 62.080(2), all persons under eighteen years of age were "presumed to come within the jurisdiction of the juvenile court," and there could be no certification from the juvenile court to the adult court unless it was "made to appear clearly and convincingly that the public safety and welfare require[d] transfer." In the Matter of Seven Minors, 99 Nev. 427, 437, 664 P.2d 947, 953 (1983). Under the 1995 amendment, it is declared that the public safety and welfare require certification to adult court in juvenile cases involving the use or threatened use of a deadly weapon; and in such cases the juvenile court "shall certify" the child for criminal proceedings unless the court finds that the child was "not a principal actor" or that certain "exceptional circumstances exist." Under the statutory amendment, underaged persons charged with offenses involving the use of a deadly weapon are presumed not to come within the jurisdiction of the juvenile court.
Although this case presents serious questions as to whether J.H. has been sufficiently "charged" with an offense involving a deadly weapon so as to give rise to the presumption of certification, we base reversal of the juvenile court's denial of certification on its quite understandable misapplication of the "exceptional circumstances" language in the statute. The pertinent language of NRS 62.080(2) at the time of J.H.'s certification was as follows:
If a child 14 years of age or older is charged with ... [an] offense involving the use or threatened use of a deadly weapon or an attempt to commit such an offense, ... the juvenile division ... shall certify the child for proper criminal proceedings to [the adult court] unless the court specifically finds that the child was not a principal actor in the offense or that exceptional circumstances exist because the child's actions were substantially the result of his substance abuse or emotional or behavioral problems[,] and such substance abuse or problems may be appropriately treated through the jurisdiction of the juvenile division.
Under the statute in question, before a child can, in certification proceedings, be said to have been charged with an offense involving a deadly weapon, the State must plead in some manner and establish probable cause that the child committed an offense involving a deadly weapon. To establish its prima facie case and thus bring into operation the presumption of certification, the State must file a petition, motion or other pleading which puts the child on notice that certification is being sought. The State must then show that there is "prosecutive merit" to the charge. 1
"Prosecutive merit" is an expression that comes from the appendix to Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966), and refers to the standard of proof to be applied at the first phase of a certification hearing. It involves some showing by the State that the juvenile committed the charged act. As pointed out in Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975), the "Court has never attempted to prescribe criteria for, or the nature and quantum of evidence that must support a decision to transfer a juvenile for trial in adult court." This court has, however, "prescribe[d] criteria" for establishing prosecutive merit in the following terms:
A preliminary determination of prosecutive merit is to be made to assure that there is probable cause to believe that the subject youth committed the offense or offenses charged.
In the Matter of Seven Minors, 99 Nev. 427, 442, 664 P.2d 947, 957 (1983).
Once the State has pleaded its certification charges and has established "prosecutive merit" by showing that there is probable cause to believe that the child has committed an offense involving the use or threatened use of a deadly weapon or an attempt to commit such an offense, a presumption is created under which the juvenile court "shall certify the child for proper criminal proceedings." At this point the burden of going forward shifts to the respondent child who must then present evidence either that he or she was not a "principal actor in the offense" or that mitigating, "exceptional circumstances," of the kind set out in the statute, exist. Because it is clear that J.H. was the only actor and therefore the principal actor in this offense, we will deal only with the questions relating to the "exceptional circumstances" portion of the statute.
Before discussing the mitigating "exceptional circumstances" which, according to the statute, must be the cause of the "child's actions," we first address whether the presumption created by the statute went into effect at all in this case. Absent "prosecutive merit" to the charges, there can be no presumption. The limited facts that can be gathered from this record reveal that the State's establishment of prosecutive merit is problematical. J.H. is charged with assault with a deadly weapon and with burglary. The assault with a deadly weapon charge stems from a charged "unlawful attempt ... to commit a violent injury" upon another boy. The burglary charge is that J.H. entered the boy's home through an unlocked door "with the intent to commit assault or battery." The original juvenile court petition alleges that J.H. "slash[ed] at the victim with a knife." The "slashing" charge appears from the record to be limited to J.H.'s angry brandishing of a knife during a quarrel with the mentioned boy concerning the boy's treatment of J.H.'s sister. Although the formal charge against J.H. is that he "attempt[ed] ... to commit violent injury," the facts relating to the charged attempt to commit violent injury and to the specific intent necessary for a burglary charge were never aired in these certification proceedings.
In Seven Minors, we ruled that certification could not be carried out without the "necessity for establishing the merit of the prosecution's case as a condition for proceeding with the transfer [certification] process." 99 Nev. at 437, 664 P.2d at 953. "Unless probable cause is conceded by the minor, the court should proceed to hear and determine this issue before proceeding further." Id. Although it does not appear that counsel for J.H. expressly "conceded" the prosecutive merit issue, counsel made no effort to oppose the State's affidavit on this issue.
To establish probable cause that J.H. did actually "attempt" to "commit violent injury" on the boy by "slashing" at him, the State relied entirely on an affidavit of some kind. As J.H.'s counsel did not include this affidavit in the record on appeal, we have no idea as to the weight or sufficiency of the evidence supporting prosecutive merit. Rather than oppose the State's evidence and pursue J.H.'s version of the case, namely, that he did not threaten the boy with a knife during their quarrel (see note 2, infra), J.H.'s counsel stated to the juvenile court that counsel was "not going into the facts" of the case. J.H.'s counsel made no attempt to counter the State's case with regard to prosecutive merit and indicated to the court that "if we had submitted affidavits," they would have "indicat[ed] that the victim [was] a crack head and that it didn't happen this way and there was no knife and that I know that that's not going to be the issue." 2
From the few facts that appear in the record, J.H.'s version appears to be that he had been offended by the way in which the "victim" had treated his sister, that he did not threaten the boy with a knife, and that he did not have any intent to harm the boy, much less to "commit violent injury." Under Keys v. State, 104 Nev. 736, 766 P.2d 270 (1988), the State must prove a specific intent in order to establish the crime of attempt. Although prosecutive merit was not litigated, there was a strong possibility that mental elements of the assault charge as well as the burglary charge would have been very difficult to prove. It is therefore possible that the case might have ended at the prosecutive merit stage of the proceedings.
Because we are reviewing the subject statutory amendment for the first time, the prosecutive merit aspect of these certification proceedings has been discussed; however, this question was not raised by J.H. on appeal. We rest reversal of the order of...
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