E. H., In re

• Decision Date: 31 March 1981
• Docket Number: No. 15034,15034
• Citation: 166 W.Va. 615,276 S.E.2d 557
• Court: West Virginia Supreme Court
• Parties: In re E. H.

Page 557

276 S.E.2d 557

166 W.Va. 615

In re E. H.

No. 15034.

Supreme Court of Appeals of West Virginia.

March 31, 1981.

Syllabus by the Court

1. W.Va.Code, 49-5-6, providing a right to demand a jury trial in a juvenile proceeding, must be read in light of its historical background and in pari materia with the reference to a jury trial at the adjudicatory hearing contained in W.Va.Code, 49-5-11 (1978), with the result that the right to demand a jury trial is limited to the adjudicatory hearing.

2. Article III, Section 10 of the West Virginia Constitution does not require a jury trial at a juvenile transfer hearing.

3. Under W.Va.Code, 49-5-10 (1978), at a transfer hearing as a standard of proof the State need only establish that there is probable cause to believe that a child has committed one of the offenses therein enumerated.

4. The failure to give strict adherence to the rules of evidence or to the scope of cross-examination as required in a criminal trial will not be grounds for reversible error at a transfer hearing.

Adair D. Jones, Welch, for E. H.

Chauncey H. Browning, Atty. Gen., and Richard S. Glaser, Jr., Asst. Atty. Gen., Charleston, for the State.

MILLER, Justice:

The principle issue presented in this case is whether a juvenile charged with acts of delinquency which would constitute crimes if he were an adult is entitled to have a jury decide whether he should be transferred to the criminal jurisdiction of the court when the State files a motion to transfer under W.Va.Code, 49-5-10 (1978).

The juvenile, E.H., was charged under the juvenile jurisdiction of the Circuit Court of McDowell County with committing the offenses of kidnapping, armed robbery and grand larceny. The juvenile was 17 years old at the time of the offenses and at the time of the proceedings in question. Following a detention hearing on June 5, 1980, the juvenile was ordered to be held in the juvenile detention center in Princeton, Mercer County, in lieu of $10,000 bond. The prosecuting attorney petitioned for transfer to the criminal jurisdiction of the court. The juvenile requested a jury to determine the question of transfer, citing W.Va.Code, 49-5-6. ¹ The motion was denied and the transfer hearing was held before the court without a jury.

Following the hearing, the court found probable cause to believe the juvenile had committed robbery with a deadly weapon, and kidnapping, and ordered the proceeding transferred to the criminal jurisdiction of the court. The juvenile appealed the transfer order under his right to direct appeal provided by W.Va.Code, 49-5-10(f).

The key issue is whether the provisions of W.Va.Code, 49-5-6, mandate a jury trial at a transfer hearing because there are "questions of fact" involved in a transfer hearing. A second contention is made that under Article III, Section 10 of our Constitution a right to trial by jury is required for a transfer hearing.

I.

The State's response consists essentially of two points. First, the jury trial provision in W.Va.Code, 49-5-6, was enacted prior to the existence of a transfer hearing, so that the jury trial provision was not intended at its inception to include the transfer issue. Second, the transfer statute, W.Va.Code, 49-5-10 (1978), providing for transfer determination by "the court," when contrasted with the adjudication statute, W.Va.Code, 49-5-11, which provides at the adjudicatory hearing a right to jury with the language "the court or jury," indicates a clear legislative intent to exclude a jury at a transfer hearing.

The provisions of W.Va.Code, 49-5-6, that "(i)n a proceeding under this article, an interested person may demand, or the judge of his own motion, may order a jury of twelve persons to try any question of fact," can be traced directly back to our original juvenile act. In the 1915 Acts of the Legislature, Ch. 70, in Section 2, this provision is found:

"In all trials under this act any person interested therein may demand a jury of twelve persons, or the judge of his own motion may order a jury of the same number to try the case."

This identical language was incorporated in the 1931 revised Code. W.Va.Code, 49-2-3 (1931). The current language found in W.Va.Code, 49-5-6, was framed as a result of the 1936 Acts of the Legislature, First Extraordinary Session, Ch. 1, W.Va.Code, 49-5-6. ²

Insofar as our juvenile statutes are concerned, from the first act in 1915, up to 1977, there was no statutory provision for a formal transfer hearing. The basic framework was that the juvenile court was given the exclusive jurisdiction, but could decline to exercise that jurisdiction in certain instances in which event the child was proceeded against as an adult criminal. ³ Moreover, it is also clear that from our first juvenile act through 1976, the only adversary hearing was the hearing on the initial petition setting forth the acts of delinquency. W.Va.Code, 49-5-7 (1976 Replacement Volume). It was at this hearing where the factual determination of delinquency was made and it was at this proceeding that we accorded the right to demand a jury trial under W.Va.Code, 49-5-6. Newman v. Wright, 126 W.Va. 502, 29 S.E.2d 155 (1944); State ex rel. Marcum v. Ferrell, 140 W.Va. 202, 83 S.E.2d 648 (1954).

Despite the statutory silence prior to 1977 on the right to a transfer hearing, this Court in Syllabus Point 1 of State v. McArdle, 156 W.Va. 409, 194 S.E.2d 174 (1973), imposed a duty to hold a meaningful transfer hearing:

"Since waiver of juvenile jurisdiction is a critical stage in criminal proceedings against a juvenile, constitutional due process demands that the child, his parents and his counsel be afforded reasonable notice of the waiver hearing, the charge to be considered, a reasonable opportunity to prepare a defense to such waiver and a meaningful hearing at which evidence on behalf of the juvenile should be permitted."

McArdle relied on Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). There was no suggestion in McArdle that our statutory right to demand a jury trial was applicable to the transfer hearing, and Kent carries no hint of such a right. ⁴

Thus, up to the end of 1976, it can be fairly stated that the statutory right to demand a jury trial under W.Va.Code, 49-5-6, was applicable to the adjudicatory hearing and we had expressed no view as to whether it applied to the judicially-mandated transfer hearing.

In 1977 the Legislature made extensive revisions to our juvenile proceedings. For the first time a formal statutory transfer procedure was adopted, applicable to juveniles who committed an offense which if committed by an adult would be a felony. W.Va.Code, 49-5-10 (1977). The statute went on to delineate the nature of the felony offense which would trigger a transfer hearing. The statute also required that before transfer could be ordered a finding must be made that there are no reasonable prospects for rehabilitation of the juvenile. It concluded with the statement:

"If the court transfers the case to a criminal proceeding, the court's findings of fact and conclusions of law shall be incorporated within the order." W.Va.Code, 49-5-10(c) (1977).

In 1978 this section was amended in regard to the criteria for transfer of a juvenile to the adult criminal court, but the foregoing provision relative to findings of fact and conclusions of law was retained. W.Va.Code, 49-5-10(e) (1978). ⁵ It cannot be doubted that traditionally this phraseology that a court make "findings of fact and conclusions of law" is a requirement coming from cases where the court is deciding the issues without a jury. See Parkway Fuel Service, Inc. v. Pauley, W.Va., 220 S.E.2d 439 (1975); Blevins v. May, W.Va., 212 S.E.2d 85 (1975); City of Morgantown v. Town of Star City, 156 W.Va. 529, 195 S.E.2d 166 (1973); Rule 52(a), West Virginia Rules of Civil Procedure. It would seem apparent that the Legislature chose this phraseology to indicate that the court, as distinguished from the jury, was the appropriate entity to make the transfer decision. This view is reinforced by the use of the word "court" throughout the transfer statute.

The very nature of the inquiry at a transfer hearing, involving as it does rather complex issues concerning psychological and rehabilitative factors, is peculiarly within the province of a judge rather than a lay jury, as we have indicated in Markey v. Wachtel, W.Va., 264 S.E.2d 437 (1979), which involved the right to a jury trial in an involuntary mental commitment proceeding.

Furthermore, when we view all of the revisions made by the 1977 Acts of the Legislature which have been carried into the 1978 Juvenile Act, it seems apparent that the Legislature did not intend to require a right to a jury trial at every hearing stage even though these hearings could in the language of W.Va.Code, 49-5-6, involve questions of fact.

Under W.Va.Code, 49-5-8 (1978), there is a right to a detention hearing where the court must decide under certain standards whether the juvenile shall be detained in custody. Obviously, there can arise factual questions as to whether the juvenile meets the standards for detention, and to adopt relator's viewpoint would require a jury determination if demanded under W.Va.Code, 49-5-6.

Again, in W.Va.Code, 49-5-9 (1978), there is a right to a preliminary hearing where the court or the juvenile referee must determine if there is probable cause to believe that the child is a delinquent child. Certainly questions of fact are involved at this hearing and a literal reading of W.Va.Code, 49-5-6, would also require a jury here.

In addition, there is the dispositional proceeding under W.Va.Code, 49-5-13, where the court is required to give "precedence to the least restrictive (of a list of alternative dispositions) consistent with the best interests and welfare of the public and the child." In going through the listed alternatives, it is not difficult to perceive that there could be...