IN RE J.L.M.

• Decision Date: 05 February 1996
• Docket Number: No. 95-FS-375,95-FS-375
• Parties: In re J.L.M., Appellant.
• Court: D.C. Court of Appeals

673 A.2d 174

In re J.L.M., Appellant.

No. 95-FS-375.

District of Columbia Court of Appeals.

Argued December 13, 1995.

Decided February 5, 1996.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

APPEAL FROM THE SUPERIOR COURT OF DISTRICT OF COLUMBIA; REGGIE B. WALTON, TRIAL JUDGE.

Lorenzo Randle, Greenbelt, MD, for appellant.

Rosalyn Calbert Groce, Assistant Corporation Counsel, with whom Charles F.C. Ruff, Corporation Counsel and Robert R. Rigsby, Deputy Corporation Counsel, were on the brief, for appellee.

Before FERREN, STEADMAN, and SCHWELB, Associate Judges.

FERREN, Associate Judge:

J.L.M., a sixteen-year-old (who was fifteen years old at the time of the offense and filing of the charges) appeals the trial court's order transferring the armed-murder charges against him from the Family Division, Juvenile Branch, to the Criminal Division for prosecution. J.L.M. contends the trial court erred in concluding that (1) his transfer was in the interest of the public welfare and the protection of the public security, and that (2) there were no reasonable prospects for his rehabilitation. We affirm.

I.

On October 17, 1994, J.L.M. allegedly fired a revolver at a group of three individuals, killing one of them. The next day he was charged as a juvenile with first degree murder while armed, D.C. Code §§ 22-2401, -3202(a)(1) (1994 Supp.); two counts of assault with intent to kill while armed, id. §§ 22-501, -3202(a)(1) (1989 Repl. & 1994 Supp.); carrying a pistol without a license, id. § 22-3204(a) (1994 Supp.); possession of an unregistered firearm, id. § 6-2311(a) (1994 Supp.); and unlawful possession of ammunition, id. § 6-2361 (1989 Repl.). The District of Columbia, appellee, filed a motion to transfer J.L.M. for criminal prosecution pursuant to D.C. Code § 16-2307 (1995 Supp.).¹

A hearing on the District's motion to transfer J.L.M. began on March 7, 1995. In support of its motion, the District presented evidence of J.L.M.'s past criminal behavior and of his experience in a juvenile treatment facility. The District established that on October 16, 1992, J.L.M., then age 13, had stabbed a 17-year-old with a knife, for which he was charged with assault with intent to murder. After adjudication as a delinquent, J.L.M. was committed to the Maryland Department of Juvenile Services, which enrolled him in the Charles H. Hickey School, a juvenile treatment facility in Baltimore, Maryland. J.L.M. was treated at the Hickey School from November 30, 1993 until his release on June 7, 1994, when he was placed in the custody of his grandmother and electronically monitored. J.L.M., however, violated the conditions of his release by leaving his grandmother's house without consent on June 29, 1994. The District showed that J.L.M.'s whereabouts were unknown until the October 17, 1994 shooting.

The District also presented the testimony of officials involved in J.L.M.'s treatment at the Hickey School. Kevin A. Carter, J.L.M.'s youth counselor and case manager, testified that J.L.M. had had problems controlling his anger, respecting authority, and interacting with other juveniles at the school, and had been involved in two fights during his stay. Carter also discussed J.L.M.'s behavior and attitude at the Hickey School, which Carter believed had not improved until shortly before J.L.M. was scheduled to be released. Allen Wright, J.L.M.'s probation officer during his detention at the Hickey School, testified that J.L.M.'s attitude and progress had been inconsistent, that he had had difficulty controlling his impulses, and that his behavior had worsened by the timeof his release. Both Carter and Wright had disagreed with the decision to release J.L.M. from the Hickey School, and, at the time of the hearing, Wright believed that J.L.M. should not be transferred to the adult system for prosecution.

District personnel responsible for the treatment of juvenile offenders testified about J.L.M.'s rehabilitative prospects. Katherine Washington, the acting supervisor of treatment services at Oak Hill Youth Center, where J.L.M. had been detained after the October 17 shooting, stated that J.L.M.'s chances of rehabilitation at Oak Hill depended on the effort he put into the services Oak Hill offered. While at Oak Hill, however, J.L.M.'s behavior had not been "as good as it could be." Michelle Hunt, a probation officer with the Superior Court assigned to prepare a transfer summary for the hearing, testified that J.L.M. had the potential to be rehabilitated, but only after a "long term, intensive therapeutic placement."

Patricia Clark, a social worker with the Department of Human Services, Youth Services Administration, testified that J.L.M. probably would be placed in one of two facilities for violent offenders, Oak Hill or the High Plains Youth Center in Colorado. Clark was unable to state with any assurance whether treatment at either facility would prevent J.L.M. from engaging in violent behavior in the future. Michael Benoit, a supervisor in the District's Placement Branch Residential Placement Unit responsible for placing juveniles in treatment facilities, recommended High Plains as the appropriate treatment facility for J.L.M. Benoit testified that, in the absence of any treatment, J.L.M. presented a danger to the community. With treatment, however, J.L.M.'s potential for further violent activity would "lessen to a great degree the chances of his acting out similarly."

The defense presented the testimony of a clinical psychologist, Dr. Chauncey Fortt. Dr. Fortt had interviewed and tested J.L.M. for approximately four hours before the hearing. Dr. Fortt described J.L.M. as being very cooperative and as lacking the "hardened core of the predator." Dr. Fortt further reported that J.L.M. exhibited no traces of psychosis. According to Dr. Fortt, J.L.M. presented a very high risk for delinquent behavior in his current environment but was capable of rehabilitation. Dr. Fortt proffered a study on recidivism rates for juveniles enrolled in the High Plains facility to support his opinion. On cross-examination, Dr. Fortt was unable to state with certainty whether J.L.M. would engage in violent behavior after successfully completing a program designed to deal with his problems; he characterized J.L.M.'s potential for further involvement in violent behavior as "average."

On April 7, 1995, the trial court granted the District's motion to transfer after concluding that (1) J.L.M. should be transferred for criminal prosecution as an adult in the interest of public welfare and protection of public security, and that (2) there were no reasonable prospects for J.L.M.'s rehabilitation. J.L.M. noted a timely appeal.

II.

A.

D.C. Code § 16-2307(d) (1995 Supp.) establishes a two-criteria approach for all transfer determinations:

Unless a commitment under subsection (c) of this section has intervened, the Division shall conduct a hearing on each transfer motion to determine whether to transfer the child for criminal prosecution. This hearing shall be held within ten days (excluding Sundays and legal holidays) of the filing of the transfer motion. The Division shall order the transfer if [1] it determines that it is in the interest of the public welfare and protection of the public security and [2] there are no reasonable prospects for rehabilitation. A statement of the Division's reasons for ordering the transfer shall accompany the transfer order. The Division's findings with respect to each of the factors set forth in subsection (e) of this section relating to the public welfare and protection of the public security shall be included in the statement. This statement shall be available upon request to any court in which the transfer is challenged, but shall not be available to thetrier of fact of the criminal charge prior to verdict. (Emphasis added.)

Thus, in applying the first criterion of § 16-2307, the trial court must consider the danger to the public welfare and safety if the juvenile is not processed as an adult, while the second criterion focuses the court's attention on the juvenile's potential for rehabilitation.

This two-criteria approach is of recent vintage. The previous formulation of the transfer provision focused the trial court's attention exclusively on the prospects for rehabilitating the juvenile before his or her majority. See D.C. Code § 16-2307(d) (1989 Repl.).² Under that formulation, when deciding whether to transfer, the trial court was to consider five factors relevant to rehabilitation listed in § 16-2307(e) (1989 Repl.).³ The District had "the burden of showing by a preponderance of the evidence" that, in light of the § 16-2307(e) factors, there were no "reasonable prospects for rehabilitating" the juvenile "prior to his [or her] majority." Super.Ct.Juv.R. 109(c) (1995).

The Criminal and Juvenile Justice Reform Amendment Act of 1992 ("Reform Act"), D.C.Law 9-272, 40 DCR 796 (effective date May 15, 1993), significantly amended § 16-2307(d) of the transfer statute by requiring the trial court to consider the two criteria quoted in full at the outset of Part II: "the interest of public welfare and the protection of public security" and the juvenile's "prospects for rehabilitation." Id. at § 101, 40 DCR at 797, codified at D.C. Code § 16-2307(d) (1995 Supp.). The Reform Act thus added a second, public welfare/security criterion to all transfer determinations. The Act further amended § 16-2307(d) by adding language (quoted earlier) to indicate that "the factors set forth in subsection (e)" would apply in determining whether the transfer was in the interest of "the public welfare and protection of the public security." Id.⁴

Finally, the Reform Act amended § 16-2307 by adding new subsections (e-1) and (e-2):

(e-1) For purposes of the transfer hearing the Division shall assume that the child committed the delinquent act alleged.

(e-2) There is a...