C.R.M., In Interest of

• Decision Date: 27 June 1996
• Docket Number: No. 960010,960010
• Citation: 552 N.W.2d 324
• Parties: In the Interest of C.R.M., a child. Stephen R. DAWSON, Petitioner and Appellee, v. Hector MARTINEZ, Anna Martinez, and C.R.M., Respondents and Appellants. Criminal
• Court: North Dakota Supreme Court

Page 324

552 N.W.2d 324

In the Interest of C.R.M., a child.

Stephen R. DAWSON, Petitioner and Appellee, v. Hector MARTINEZ, Anna Martinez, and C.R.M., Respondents and Appellants.

Criminal No. 960010.

Supreme Court of North Dakota.

June 27, 1996.

John Tainter Goff, Cass County State's Attorney, Fargo, for petitioner and appellee.

Zenas Baer, Hawley, Minn., for respondents and appellants.

VANDE WALLE, Chief Justice.

C.R.M., a juvenile, has appealed an order transferring prosecution of criminal charges against him from juvenile court to the district court under § 27-20-34(1)(b), N.D.C.C. ¹ We affirm.

On the evening of November 15, 1995, seventeen-year-old C.R.M. was driving a car in which five other juveniles were riding. C.R.M. and the other juveniles were arrested after it was alleged one of them killed Cheryl Tendeland with a sawed-off shotgun while she was sitting in a car in West Fargo, North Dakota.

The State moved to transfer prosecution from juvenile court to the district court for trial of C.R.M. as an adult, and filed a second amended petition alleging in part:

"IV.

"That certain facts bring said child within the jurisdiction of this Court as a delinquent child, as follows:

"Count 1: That the juvenile is alleged to be delinquent in that he was involved in committing the unlawful act of MURDER in violation of Section 12.1-16-01(1)(c) N.D.C.C. in that ... on or during the late evening hours of November 15, 1995, in West Fargo, ND, the above-named juvenile, ..., acting with other juveniles, committed the offense of attempted robbery and during the course of said attempted robbery one of the participants, ..., caused the death of Cheryl Tendeland by shooting her in the head with a shotgun.

* * * * * *

"Count 2: That the juvenile is alleged to be delinquent in that he was involved in committing the unlawful act of ACCOMPLICE TO ATTEMPTED ROBBERY in violation of Sections 12.1-22-01 and 12.1-06-01, and 12.1-03-01, N.D.C.C....

"Count 3: That the juvenile is alleged to be delinquent in that he was involved in committing the unlawful act of CRIMINAL STREET GANG CRIME in violation of Sections 12.1-06.2-02 and 12.1-03-01, N.D.C.C...."

After a hearing on December 20, 1995, the juvenile court found:

"2. The Court finds probable cause to believe that an attempted robbery was being committed on November 15, 1995, and that [C.R.M.] assisted in the commission of said attempted robbery, which resulted in the death of Cherryl Tendeland, and that [C.R.M.] committed the offense of felony Murder under North Dakota law as charged in Count One of the Second Amended Petition."

The court transferred Count 1 to district court under § 27-20-34(1)(b), N.D.C.C., and transferred Counts 2 and 3 under § 27-20-34(4), N.D.C.C. C.R.M. appealed.

C.R.M. contends that the juvenile court erred in ruling that the North Dakota Rules of Evidence do not apply to a transfer hearing, and in allowing Detective Gregory Warren to give hearsay testimony over C.R.M.'s objection. We disagree.

Section 27-20-34(1)(b), N.D.C.C., requires the transfer of certain serious offenses from juvenile court to the district court:

"1. After a petition has been filed alleging delinquency based on conduct which is designated a crime or public offense ... the court before hearing the petition on its merits shall transfer the offense for prosecution to the appropriate court having jurisdiction of the offense if:

* * * * * *

"b. The child was fourteen years of age or more at the time of the alleged conduct and the court determines that there is probable cause to believe the child committed the alleged delinquent act and the delinquent act involves the offense of murder or attempted murder; gross sexual imposition or the attempted gross sexual imposition of a victim by force or by threat of imminent death, serious bodily injury, or kidnaping;...."

Chapter 27-20, N.D.C.C., does not specify whether or not the evidence rules apply to juvenile court hearings. Section 27-20-24(1), N.D.C.C., provides: "Hearings under this chapter must be conducted by the court without a jury, in an informal but orderly manner." Section 27-20-27(1), N.D.C.C., provides: "A party is entitled to the opportunity to introduce evidence and otherwise be heard in his own behalf and to cross-examine adverse witnesses."

C.R.M. relies on this court's decision in In Interest of P.W.N., 301 N.W.2d 636, 640 (N.D.1981), to preclude the use of hearsay evidence:

"We believe that the 'essentials of due process and fair treatment' required at transfer hearings by Kent v. United States, supra, [383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84] and the requirements of § 27-20-27(1), NDCC, necessitate that evidence establishing reasonable grounds to believe that the child committed the delinquent act must be produced by witnesses available for cross-examination."

C.R.M. reads P.W.N. too broadly. A decision's precedential value is measured by the context of its particular facts. P.W.N.'s requirement of evidence "produced by witnesses available for cross-examination" was based on the same holding in In Interest of K.G., 295 N.W.2d 323 (N.D.1980). In K.G., no witnesses testified at the transfer hearing on the question of whether or not there were reasonable grounds to believe that K.G. committed murder--there were only remarks by the state's attorney repeating statements made to him. In P.W.N., on the other hand, there was a witness, Deputy Steven Kremer, who testified and was available for cross-examination. P.W.N. does not declare that a witness available for cross-examination may not present hearsay testimony at a transfer hearing. ²

Like Rule 5.1, N.D.R.Crim.P., on preliminary examinations, § 27-20-34(1)(b), N.D.C.C., requires a finding of "probable cause to believe" that a person committed an act. "Probable cause is a minimal burden of proof. It is generally employed in the judicial decision-making process when the effect of the determination has temporary or short-term consequences." In Interest of M.D.N., 493 N.W.2d 680, 684 (N.D.1992). "Rule 5.1, N.D.R.Crim.P., authorizes both the admission of hearsay and reliance upon hearsay in determining probable cause to bind over a defendant for trial." Schiermeister v. Riskedahl, 449 N.W.2d 566, 569 (N.D.1989) (decided before Rule 5.1, N.D.R.Crim.P., was amended to specifically allow hearsay evidence).

Significantly, Rule 1101(d)(3), N.D.R.Ev., specifically declares that the North Dakota Rules of Evidence, except those relating to privileges, do not apply to "transfer and dispositional hearings in juvenile court." The explanatory note to Rule 1101, N.D.R.Ev., explains: "A juvenile court transfer hearing is equivalent to a preliminary examination in a criminal case which has relaxed standards for admission of evidence." We conclude that the juvenile court did not err in ruling that the North Dakota Rules of Evidence were inapplicable in this juvenile transfer proceeding, or in allowing Detective Warren, who was available for cross-examination and was cross-examined, to present hearsay testimony based upon information acquired in the course of his investigation. ³

C.R.M. contends that the use of exclusively hearsay testimony at the transfer hearing deprived him of the essentials of due process and fair treatment, in violation of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). A District of Columbia statute placed sixteen-year-old Kent in the "exclusive jurisdiction" of the juvenile court, but provided that a judge "may, after full investigation," transfer him to the court which would have jurisdiction if he were an adult. In transferring Kent to adult court, the judge conducted no hearing, made no findings, recited no reasons, and did not refer to any of Kent's motions. The United States Supreme Court held that the procedure used was insufficient:

"[W]e conclude that, as a condition to a valid waiver order, petitioner was entitled to a hearing, including access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons for the Juvenile Court's decision. We believe that this result is required by the statute read in the context of constitutional principles relating to due process and the assistance of counsel."

383 U.S. at 557, 86 S.Ct. at 1055, 16 L.Ed.2d at 95. The court said that it did "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." 383 U.S. at 562, 86 S.Ct. at 1057, 16 L.Ed.2d at 97-8. Kent does not preclude the use of hearsay testimony by an investigating detective.

C.R.M. argues:

"Taken to its extreme, the State would argue that so long as there is 'probable cause' sufficient to have a judicial officer sign a Summons and Complaint in District Court or a Petition in juvenile court adequate and sufficient evidence has been shown to transfer to adult court.....

"The state fails to recognize the distinction between juvenile court and adult court. If the same standard applied, there would be no need to hold a transfer hearing because the Court would have already made the determination at the detention hearing stage."

Probable cause must be found in the initiation of a complaint under Rule 3, N.D.R.Crim.P., or at a defendant's initial appearance before a magistrate under Rule 5, N.D.R.Crim.P. Although, under § 27-20-17(2), N.D.C.C., there must be a determination "whether there is probable cause to believe the child has committed the delinquent or unruly acts alleged," a probable cause finding upon a juvenile detention hearing under that section is designed to afford a child treatment or rehabilitation alleged to be needed in a petition filed under § 27-20-21, N.D.C.C. See In Interest of C.J.A., 473 N.W.2d 439 (N.D.1991). A probable cause finding in a transfer hearing has a very different purpose--removing the...