Eduardo L., In re

• Decision Date: 02 March 1993
• Docket Number: No. 92-138,92-138
• Citation: 136 N.H. 678,621 A.2d 923
• Parties: In re EDUARDO L.
• Court: New Hampshire Supreme Court

Page 923

621 A.2d 923

136 N.H. 678

In re EDUARDO L.

No. 92-138.

Supreme Court of New Hampshire.

March 2, 1993.

John P. Arnold, Atty. Gen. (Gregory W. Swope, Asst. Atty. Gen., on the brief and orally), for the State.

W. Kirk Abbott, Jr., Asst. Appellate Defender, Concord, on the brief and orally, for defendant.

HORTON, Justice.

This is an interlocutory appeal by the defendant, Eduardo L., from an order of the Superior Court (Mangones, J.) remanding for further proceedings a decision by the Nashua District Court (Howorth, J.) certifying him as an adult. We hold that the superior court erred in declining certification, and reverse and remand for trial.

It is alleged that on March 23, 1991, the defendant, in separate incidents, shot two persons, killing one and injuring the other. The defendant also robbed the surviving shooting victim and attempted to assault an arresting police officer. On April 2, 1991, the State, pursuant to RSA 169-B:24, filed a petition to transfer the case to superior court. A certification hearing was held on May 14, 1991, in the Nashua District Court.

At the certification hearing, the State called as its only witness Robert Hodges, a detective lieutenant with the Nashua Police Department. Hodges was then head of the department's community youth services division, a unit that investigates crimes by and against youth. He was responsible for supervising detectives in that division. Hodges testified that during the investigation of the March 23 shootings, he spoke to officers assigned to the case and reviewed their reports of the incidents.

After establishing Hodges' role as supervisor of the investigation, the State asked him to describe the contents of witness statements and police reports relating to the case. The defendant objected to the State's line of questioning. Conceding that the rules of evidence do not apply to certification proceedings, the defendant still noted that the decision to admit the reports into evidence rested within the discretion of the court. He contended that permitting Hodges to describe the statements and reports would prevent him from examining the credibility of the witnesses, and would violate his right of confrontation. The district court overruled the objection, but inquired whether the reports to which Hodges would be referring were available. The court noted that "[i]f we're going to use totem pole hearsay, we might as well get the best version of it available." The State then introduced thirteen exhibits, which consisted of various witness statements, police reports, forensic reports, a death certificate, an autopsy report, and a map of the area where the shooting took place.

On cross-examination, the defendant sought to establish that Hodges had neither personally conducted any of the witness interviews, nor written any of the reports introduced as exhibits. The State stipulated that Hodges had not been directly involved in preparing any of the witness interviews or police reports. The defendant did not further cross-examine Hodges, and the State rested. The defendant did not present any evidence, and the district court took the matter under advisement.

On July 6, 1991, the district court issued an order granting the State's petition for certification. In its order, the court addressed in significant detail each exhibit presented by the State. It held that the majority of the statements and reports were admissible because they were relevant, not too remote, and given by credible witnesses. The district court found, however, that certain exhibits lacked independent probative value. The district court further stated:

"Th[is] court has sat on three prior certification petitions, including two involving homicides. In the latter two, hearsay questions aside, the State made a significant effort in the court's view to introduce direct evidence to support its prima facie case. Live witnesses were presented who offered significant direct testimony, and who were subjected to vigorous cross examination. Granted that significant cost and effort were involved, the level of proof offered seemed appropriate to the significance of the proceedings. Just the opposite impression was gleaned from the within proceedings.... [T]he State's presentation was lax to the point of being lackadaisical. Were it not due to certain fortuities arising out of this court's prior experience, the State would not have prevailed."

The State filed with the superior court a motion to accept certification, to which the defendant objected.

On December 23, 1991, the superior court held a hearing at which the parties proceeded by proffer. The defendant primarily contested the State's use of hearsay evidence during the certification hearing, arguing that such use was contrary to both statute and the State and Federal Constitutions. In addition, the defendant challenged the adequacy of evidence relied on by the district court in granting certification. The superior court declined to accept certification of the defendant as an adult for purposes of trial and remanded to the district court for a rehearing. The superior court noted that "[w]hether the State's presentation was 'lax to the point of being lackadaisical,' as noted by the District Court, or whether it merely reflected the State's extraordinary confidence in the methodology of the presentation of its case," the essential fact was that "the State put its case on by simply presenting the police reports and accompanying witness statements to the District Court." While recognizing that the rules of evidence do not apply to certification hearings, the superior court concluded that "the admission and consideration of wholesale hearsay evidence from 'a reporter of information,' under the circumstances as presented, did not comport with due process and other legal mandates."

On appeal, the defendant raises the following arguments: (1) the manner in which the State chose to proceed at the certification hearing violated his due process rights under part I, article 15 of the New Hampshire Constitution, and the fourteenth amendment of the Federal Constitution, in that he was not able to cross-examine witnesses and establish the trustworthiness of otherwise admissible hearsay statements; (2) the district court's grant of certification under RSA 169-B:24 was not supported by the evidence and was erroneous as a matter of law; and (3) the superior court erred when it remanded to the district court for a rehearing, for once certification is refused, the proper remedy is prosecution as a juvenile.

The standard for acceptance of certification by the superior court, and our scope of review, are identical and of a limited nature. Under RSA 169-B:24, the decision to transfer a juvenile to superior court for adult prosecution falls within the district court's sound discretion. State v. Riccio, 130 N.H. 376, 379, 540 A.2d 1239, 1241 (1988); In re Vernon E., 121 N.H. 836, 843, 435 A.2d 833, 837 (1981). RSA 169-B:24 provides:

"All [juvenile] cases before the [district] court in which the offense complained of constitutes a felony or would amount to a felony in the case of an adult may be transferred to the superior court.... The court shall conduct a hearing on the question of transfer and shall consider, but not be limited to, the following criteria in determining whether a case should be transferred:

I. The seriousness of the alleged offense to the community and whether the protection of the community requires transfer;

II. The aggressive, violent, premeditated or wilful nature of the alleged offense;

III. Whether the alleged offense was committed against persons or property;

IV. The prosecutive merit of the complaint;

V. The desirability of trial and disposition of the entire offense in one court if the minor's associates in the alleged offense were adults who will be charged with a crime;

VI. The sophistication and maturity of the minor;

VII. The minor's prior record and prior contacts with law enforcement agencies; and

VIII. The prospects of adequate protection of the public, and the likelihood of reasonable rehabilitation of the minor through the juvenile court system.

... If the court orders transfer to superior court, it shall provide a written statement of findings and reasons for such transfer to the minor."

The State is not required to prove beyond a reasonable doubt each of the eight criteria set forth in RSA 169-B:24. Rather, the decision to transfer is within the reasonable discretion of the district court, based upon a preponderance of the evidence, with due consideration given to each factor set forth in the statute. See Riccio, 130 N.H. at 380-81, 540 A.2d at 1241-42; In re Vernon E., 121 N.H. at 844, 435 A.2d at 837-38. In light of the discretionary nature of the district court's decision to transfer, we limit our review to "whether the court fairly considered all the applicable factors of RSA 169-B:24, I-VIII ... and whether its decision is supported by the evidence and not erroneous as a matter of law." In re Vernon E., 121 N.H. at 844, 435 A.2d at 838 (citations omitted). We work from the same record as the superior court and, thus, owe no deference to that court's decision on acceptance. See generally Hillside Assocs. of Hollis v. Maine Bonding & Cas. Co., 135 N.H. 325, 330, 605 A.2d 1026, 1029 (1992) (less than ordinary deference given to lower court decision that was based on a record alone, such that the lower court "was in no better position than [the supreme court] to decide the case").

The defendant first argues that even though the rules of evidence no longer apply to certification hearings, due process requires that he have the opportunity to establish the trustworthiness of otherwise admissible hearsay statements. He further contends that his due process rights were violated because: (1) the district court admitted into evidence twelve unsworn documentary exhibits, when neither the authors of the documents,...