Appeal from Lawrence Juvenile Court (JU-01-163.08; JU-01-163.09); Randel H. Mullican, Judge.
COBB, Judge (concurring in the result).
In its unpublished memorandum, the majority affirms the trial court's decision to deny E.J.M.'s request for funds to hire a mental health expert to testify on his behalf at the hearing on the motion to transfer the case from the juvenile court to the circuit court. The majority relies on the following rationale and holding in Ex parte H.P.W., 628 So.2d 514, 516 (Ala. 1993):
"We first address the juvenile's claim that the trial court erred in denying his motion asking the court to order the State to pay the expenses for a mental evaluation. He argues that the denial of this motion violated his due process rights under Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). We disagree. In Ake, the Supreme Court held that the Fourteenth Amendment's guarantee of fundamental fairness required that an indigent defendant in a criminal proceeding be provided the means to build an effective defense, 470 U.S. at 76-77, 105 S.Ct. at 1092-93, but this case involved a transfer hearing and this Court has specifically stated that `a transfer hearing is not a hearing to adjudicate the guilt or innocence of the child accused of a crime but is, instead, a probable cause hearing to determine whether the child should be transferred out of the juvenile court for criminal prosecution as an adult.' Brown v. State, 353 So.2d 1384, 1387-88 (Ala. 1977). Consequently, the procedural requirements of a trial do not ordinarily apply to a transfer hearing. See Gulledge v. State, 419 So.2d 219, 220 (Ala. 1982) (holding that the strict rules of evidence do not apply to a transfer hearing because it is a probable cause hearing rather than a criminal prosecution); Cruse v. State, 489 So.2d 694, 697 (Ala
Cr.App.1986) (holding that a transfer hearing is not a `criminal prosecution' within the meaning of the Sixth Amendment's guaranty of the right to a speedy trial). We hold, therefore, that because a transfer hearing is a probable cause hearing rather than a criminal prosecution, which would place a person's liberty at stake, the denial of the juvenile's motion to require the State to pay expenses to obtain a psychological expert did not violate his due process rights."
I write specially to note that I concur with the result reached in the unpublished memorandum only because of the binding precedent established in Ex parte H.P.W., 628 So.2d 514 (Ala.1993). Having conducted transfer hearings as a former juvenile judge, I am convinced that the better view is stated in Justice Kennedy's learned dissent in H.P.W.:
"The majority of the Court holds that H.P.W.'s due process rights under the Fourteenth Amendment were not violated by the juvenile court's denial of his motion asking that the State pay the expenses of a mental evaluation. I disagree.
"In Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), the Supreme Court held that a state must take certain steps to assure that an indigent criminal defendant has a fair opportunity to present his defense, including providing him with a psychiatrist's assistance if the defendant shows that his sanity at the time of the offense is an issue. In addition, in that case the Supreme Court held that the defendant was entitled to a psychiatrist's assistance at his sentencing proceeding in order to present an expert's opposing view as to his future dangerousness, because at the sentencing proceeding the State had presented evidence of the defendant's likelihood of future dangerousness. The Supreme Court held that without a psychiatrist's assistance, the defendant could not present a well-informed expert's opposing view as to his likelihood of future dangerousness.
"The case at bar involves an indigent juvenile who was transferred to the circuit court to stand trial as an adult. The Court of Criminal Appeals reversed the transfer order on a holding that the juvenile court had abused its discretion in denying a motion for a continuance and a motion for a psychiatric evaluation after evidence was presented that the juvenile had a long history of mental problems and drug abuse. H.P.W. v. State, 591 So.2d 141 (Ala.Cr.App.1991). On remand, the juvenile court held a second transfer hearing; it reviewed, among other things, evidence from a State psychiatrist, and it found that H.P.W. was competent to stand trial as an adult.
"Recently, this Court stated that `a transfer hearing is a "critically important" proceeding in juvenile criminal procedure,' citing Kent v. United States, 383 U.S. 541, 560, 86 S.Ct. 1045, 1057, 16 L.Ed.2d 84 (1966), and that `[a] transfer hearing "must measure up to the essentials of due process and fair treatment,"' quoting Kent, 383 U.S. at 562, 86 S.Ct. at 1057. Ex parte W.T.K., 586 So.2d 850, 851 (Ala.1991).
"In Ex parte W.T.K., the juvenile argued that his arrest had been unlawful and that the subsequent confession was therefore inadmissible at the transfer hearing as the fruit of an unlawful arrest. This Court reaffirmed its prior position that a transfer hearing is not designed to determine guilt or innocence of the juvenile but is instead a probable cause hearing to determine whether the juvenile should be transferred out of the juvenile court for criminal prosecution
as an adult. However, the Court held that a juvenile's Fourth Amendment rights must be protected at a transfer hearing.
"Similarly, in regard to the instant case, I feel that certain protections must be afforded a juvenile, including providing him with a psychiatrist's assistance at a transfer hearing when it has clearly been shown that his mental state is at issue. As previously noted, there was evidence presented that H.P.W. had a long history of mental problems and drug abuse. (R. 52, 102-14).
"It is particularly important that courts protect the constitutional rights of juveniles at transfer hearings. To transfer a juvenile and try him as an adult without protecting his rights to due process of law is impermissible.
"Section 12-15-34(c), Ala.Code 1975, provides that if there are grounds to believe that a juvenile is committable to an institution, the court can order a mental examination pursuant to § 12-15-70. As was stated in Ake, `[p]sychiatry is not, however, an exact science, and psychiatrists disagree widely and frequently on what constitutes mental illness . . . . Perhaps because there is often no single, accurate psychiatric conclusion on legal insanity in a given case, juries remain the primary factfinders on this issue, and they must resolve differences in opinion within the psychiatric profession on the basis of the evidence offered by each party.' 470 U.S. at 81, 105 S.Ct. at 1095.
"At a transfer hearing it is the judge who determines whether a juvenile is competent to stand trial as an adult; nevertheless, before the judge makes this determination, the juvenile should have the opportunity to present opposing expert evidence as to his mental state. If the juvenile is indigent, as H.P.W. is in this case, the State should be required to pay the expense of obtaining a psychiatrist's assistance.
628 So.2d at 517-18 (Kennedy, J., dissenting).
I also note that we addressed a similar issue in L.L.J. v. State, 746 So.2d 1052 (Ala.Crim.App.1999). In L.L.J., the juvenile, who was not indigent, had hired an expert and asked the trial court for permission to allow her expert to testify. The trial court declined. In reversing the trial court's decision, we reasoned and held:
"The juvenile court's ruling that it was `not going to consider testimony from somebody that's not involved on this case' was contrary to established law. (R. 221.) It is well settled that `a medical expert [may] give opinion testimony based in part on the opinions of others when those other opinions are found in medical records admitted into evidence.' Ex parte Wesley, 575 So.2d 127, 128 (Ala.1990). Furthermore, `[t]here is no reversible error if the facts upon which the opinion is based are admitted into evidence after the expert has testified.' Id. at 129.
"A transfer hearing is a `"`critically important' proceeding" in juvenile criminal procedure.' Ex parte W.T.K., 586 So.2d 850, 851 (Ala.1991), quoting Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966). Although transfer hearings are not adjudications of guilt, but, instead, are probable cause hearings to determine whether a juvenile should be transferred for prosecution as an adult, and therefore, are not always afforded the full procedural safeguards of a trial, they must still `"measure up to the essentials of due process and fair treatment."' Id., quoting Kent, supra.
"`It is particularly important to protect a juvenile's constitutional
rights at a transfer hearing. To transfer a juvenile and subject him to adult treatment without protecting his constitutional rights is impermissible.'
"586 So.2d at 853.
"`Few rights are more fundamental than that of an accused to present witnesses in his own defense.' Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973). `The rights to confront and cross-examine witnesses and to call witnesses in one's own behalf have long been recognized as essential to due process.' Id. at 294, 93 S.Ct. 1038. Furthermore, `[i]t is the manifest duty of the courts to vindicate [the Fifth Amendment guarantee that no person shall be deprived of liberty without due process of law], and...
