N. C. F., Matter of, 81-524
| Decision Date | 08 April 1982 |
| Docket Number | No. 81-524,81-524 |
| Citation | 197 Mont. 390,643 P.2d 236 |
| Court | Montana Supreme Court |
| Parties | In the Matter of N. C. F., a Youth. |
Olsen, Christensen & Gannett, Robert J. Waller, Billings, for appellant.
Harold Hanser, County Atty., Billings, for respondent.
The State filed a motion on September 9, 1981, requesting the Youth Court to waive its jurisdiction over N. C. F., a youth, and to transfer jurisdiction to the District Court. Pursuant to section 41-5-206(1)(b), MCA, a hearing on the petition was held September 21 and 22, 1981, before the Youth Court Division of the Thirteenth Judicial District Court. That court issued an order on September 29, 1981, granting the State's petition. The youth now appeals that order.
Michelle Ross was shot in the face with a 20 gauge sawed-off shotgun at approximately 8:00 P.M., September 8, 1981. The shooting occurred in front of a structure in Billings, Montana, where N. C. F., Robert Peterson and Michelle's boyfriend, George Irish, resided. N. C. F., Robert, Todd Heiser and Michelle's sister, Niki Ross, were present at the time of the shooting.
Todd testified at the hearing that upon Michelle and Niki's arrival, Robert proceeded to the road to talk to Michelle while N. C. F. entered the structure. N. C. F. returned outside immediately with a sawed-off shotgun and loaded the gun in front of Todd. N. C. F. then walked toward Michelle. Todd heard a gun shot and saw Michelle fall. Todd then fled the scene.
Niki Ross corroborated Todd's story at the hearing. She indicated that while her sister was talking to Robert, N. C. F. approached them carrying a sawed-off shotgun, the gun was fired and Michelle fell to the ground.
Robert Peterson reported to police essentially the same set of events on September 9, 1981. However, at the hearing, he testified to seeing N. C. F. stumble and start to fall to the ground immediately prior to the gun having been discharged. All three of these individuals also testified to having seen N. C. F. point a gun at themselves and others, occasionally dry-fire a gun while it was pointed at an individual and misuse other weapons.
The 20 gauge sawed-off shotgun was found by a neighbor in the loft of her garage two days after the shooting. A print from N. C. F.'s left hand was found on the barrel of the gun. Both Robert and Niki reported that N. C. F. was holding the barrel of the shotgun in his left hand at the time of the incident.
N. C. F. was arrested the night of the shooting and a petition was filed September 9, 1981, charging him with attempted deliberate homicide. Following Michelle's death, an amended petition was filed September 19, 1981, charging N. C. F. with deliberate homicide. The hearing on the State's petition for transfer took place on September 21 and 22, 1981.
Section 41-5-206, MCA, contains the criteria to be used at Youth Court hearings to determine whether or not to transfer jurisdiction over a youth to the District Court. The issue before us is whether the Youth Court abused its discretion by failing to adequately consider whether or not the Youth Court's facilities, services and procedures would serve the needs of N. C. F. and the community. The relevant Youth Court Act section is:
Part 2 of this section was changed effective October 1, 1981, to state that the court may consider the following factors, rather than that it shall consider those factors. However, the statute containing the word "shall" was in effect at the time of the instant transfer hearing. Therefore, that statute and this Court's interpretation of that statute in In re Stevenson (1975), 167 Mont. 220, 538 P.2d 5, are relevant. In Stevenson, we stated on pages 229 and 230, 538 P.2d 5:
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