In the Matter of H.N.

• Decision Date: 10 June 2011
• Docket Number: No. 105,017.,105,017.
• Citation: 45 Kan.App.2d 1059,257 P.3d 821
• Parties: In the Matter of H.N.
• Court: Kansas Court of Appeals

45 Kan.App.2d 1059

257 P.3d 821

In the Matter of H.N.

No. 105,017.

Court of Appeals of Kansas.

June 10, 2011.

[257 P.3d 822 , 45 Kan.App.2d 1059]

Syllabus by the Court

1. Interpretation of a statute is a question of law over which an appellate court has unlimited review. Furthermore, the constitutionality of a statute is a question of law subject to unlimited review.

2. In a proceeding under the Revised Kansas Juvenile Justice Code, K.S.A. 2010 Supp. 38–2301 et seq. , a juvenile respondent possesses the constitutional right to have a judicial determination of probable cause as a prerequisite to an extended restraint of liberty. However, the pretrial custody probable cause determination need not be accompanied by the full panoply of adversary safeguards.

3. Under the facts of this case, where the district court conducted a hearing to determine probable cause at which the juvenile respondent was present with counsel and the district court reviewed a probable cause affidavit and gave the juvenile respondent the opportunity to present evidence on the issue of probable cause, the district court provided a fair and reliable determination of probable cause as a condition of the juvenile respondent's pretrial restraint of liberty.

Catherine A. Zigtema, of Maughan & Maughan, LC, of Wichita, for appellant.Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, and Derek Schmidt, attorney general, for appellee.Before MALONE, P.J., PIERRON and ARNOLD–BURGER, JJ.MALONE, J.

In In re D.E.R., 290 Kan. 306, Syl. ¶ 1, 225 P.3d 1187 (2010), the Kansas Supreme Court held that in a proceeding under the Revised Kansas Juvenile Justice Code (KJJC), K.S.A. 2010 Supp. 38–2301 et seq. , a juvenile respondent does not have a statutory or constitutional right to an adversarial preliminary examination, such as the procedure described in K.S.A. 22–2902 for adult criminal defendants. The court also held that in a proceeding under the KJJC, a juvenile respondent possesses the constitutional right to have a judicial determination of probable cause as a prerequisite to an extended restraint of liberty. However, the pretrial custody probable cause determination need not be accompanied by the full panoply of adversary safeguards. 290 Kan. 306, Syl. ¶ 2, 225 P.3d 1187.

Since the opinion in In re D.E.R. was filed on March 19, 2010, the Kansas Legislature has taken no action to provide a statutory mechanism to satisfy a juvenile respondent's constitutional right to have a judicial determination of probable cause as a prerequisite to an extended restraint of liberty. Kansas district judges have been forced to address the issue of how to properly conduct “a judicial determination of probable cause” in proceedings under the KJJC, with the only guidance being that such a determination need not be accompanied by the full panoply of adversary safeguards.

In the case before us, H.N. was charged as a juvenile with acts that would have constituted one count of felony burglary and two counts of misdemeanor theft if they had been committed by an adult. H.N. was subjected to pretrial detention and he requested a probable cause determination through a preliminary hearing similar to the hearings required by the adult criminal code. The district court granted the motion for determination of probable cause, but denied the request for a full adversarial preliminary hearing. Instead, the district court conducted a hearing at which H.N. was present with counsel, and the district court determined probable cause based on a sworn affidavit submitted by the State. The district court also allowed H.N. to present evidence at the hearing on the issue of probable cause, but H.N. declined to present any evidence. For the reasons set forth herein, we conclude the procedure used by the district court satisfied H.N.'s constitutional right to a judicial determination of probable cause.

Facts

On February 26, 2010, the State charged 17–year–old H.N. with acts that, if committed by an adult, would have constituted one felony count of burglary of a motor vehicle and two counts of misdemeanor theft. The same day, the district court held a detention hearing, appointed counsel for H.N., and ordered that H.N. be detained in a juvenile detention facility. H.N.'s trial was originally scheduled for March 17, 2010, but the trial was continued several times. Some of the continuances were at H.N.'s request.

On March 11, 2010, H.N. filed a motion for the district court to hold a preliminary hearing to establish probable cause that H.N. committed a felony. The motion argued that juvenile adjudications are sufficiently similar to adult criminal prosecutions such that juvenile respondents should be afforded a right to a preliminary examination. On May 12, 2010, H.N. filed a motion to dismiss for lack of probable cause or, in the alternative, for a probable cause determination. Citing In re D.E.R., H.N. argued he had a constitutional right to a probable cause determination because his liberty was restricted.

The district court held a hearing on the motions on July 6, 2010. H.N. was present at the hearing with counsel. At the hearing, H.N. argued that a probable cause determination in a juvenile adjudication should be made in the manner in which a preliminary hearing is conducted in an adult criminal proceeding. The State argued that the right to a preliminary hearing in an adult criminal proceeding is a statutory right, and there is no similar statute in the KJJC. While agreeing that H.N. had a right to a probable cause finding, the State recommended that the finding be made based on a sworn affidavit. The district court overruled H.N.'s motion to dismiss and the motion to conduct a full adversarial preliminary hearing pursuant to the adult criminal code. The district court found that a full hearing was not required by statute and that it was the role of the legislature to create a mechanism for a juvenile preliminary hearing if it is required.

The district court then proceeded with the probable cause determination. The State offered as an exhibit a sworn probable cause affidavit. H.N. objected to the affidavit on several grounds, including the fact that the affidavit contained hearsay and it violated his right to confront witnesses under the Sixth Amendment to the United States Constitution. The district court overruled the objections, and the district court accepted and reviewed the affidavit. The affidavit was signed by Detective James Grayson of the Valley Center Police Department. According to the affidavit, the principal of the Valley Center High School witnessed H.N. break into a vehicle in the high school parking lot and remove currency from the vehicle. The affidavit also stated that upon being interviewed and receiving his Miranda rights, H.N. admitted to committing the offenses and said he was sorry. After reviewing the affidavit, the district court asked H.N.'s attorney if H.N. wanted to present any evidence with regard to the probable cause determination. In fact, the judge stated, “I'm permitting you to present any evidence you want.” H.N. declined to present any evidence at the hearing. At the conclusion of the hearing, the district court found there was probable cause to believe that H.N. committed the acts in question. Specifically, the district court ruled:

“Having heard the arguments of Counsel and permitted both sides to present any evidence, and any argument with regard to the issue of probable cause, I will find, based on this sworn to affidavit, that one, I do believe there's probable cause to believe the offenses of Burglary and two charges of Theft have been committed, and I will make the determination that there is probable cause to believe that ... [H.N.] is the individual who committed those offenses.”

On July 30, 2010, the district court held a trial based on stipulated facts and found that H.N. had committed the charged acts. On August 19, 2010, the district court sentenced H.N. to 9 months' commitment in a juvenile correctional facility and 12 months' aftercare. H.N. timely appealed.

Analysis

On appeal, H.N. argues that the district court erred in denying his request for a full adversarial preliminary hearing similar to the hearings required by the adult criminal code. H.N. also argues that the district court erred by considering the affidavit of probable cause because it contained hearsay evidence and the use of the affidavit violated his constitutional rights to due process and confrontation. Finally, H.N. argues that dismissal of the charges is warranted because the district court failed to timely hold the probable cause hearing.

H.N.'s arguments involve interpretation of the KJJC, and interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010). Furthermore, the constitutionality of a statute is a question of law subject to unlimited review. State v. Allen, 283 Kan. 372, 374, 153 P.3d 488 (2007).

Was H.N. entitled to receive a full adversarial probable cause hearing?

H.N. first argues that he was entitled to receive a full adversarial hearing to determine probable cause to detain him. The State responds that a full adversarial hearing was not required under the constitution or any statute. Both arguments draw from the recent Kansas Supreme Court opinion in In re D.E.R. In that case, a juvenile was arrested and charged with three offenses, one of which would have constituted a felony had it been committed by an adult. After the charges were filed, the juvenile respondent requested a preliminary hearing under K.S.A. 22–2902 on the “ ‘felony charge,’ ” arguing that he was entitled to such a hearing under the reasoning of In re L.M., 286 Kan. 460, 186 P.3d 164 (2008), which granted juvenile respondents the constitutional right to a jury trial in proceedings under the KJJC. The State agreed to participate in the...