P. H. v. State
| Decision Date | 29 December 1972 |
| Docket Number | No. 1538,1538 |
| Citation | 504 P.2d 837 |
| Parties | In the Matter of P. H., a minor girl, Appellant, v. STATE of Alaska, Appellee. |
| Court | Alaska Supreme Court |
Edward J. Reasor, Anchorage, for appellant.
John E. Havelock, Atty. Gen., Norman C. Gorsuch, Deputy Atty. Gen., Juneau, Stephen G. Dunning, Asst. Dist. Atty., Anchorage, for appellee.
Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOOCHEVER, JJ.
In this appeal 1 we are asked to determine the validity of an order of the juvenile court waiving jurisdiction over the appellant, thereby empowering the state to prosecute her as an adult. 2 We have concluded that sufficient evidence was presented below to justify the finding that appellant was not amenable to treatment as a child, and therefore have upheld the waiver of the children's court.
On April 1, 1971, appellant 3 was arraigned before the master of the family court in Anchorage, Alaska, pursuant to a petition of delinquency which alleged violations of AS 11.15.270 (conspiracy to kidnap), AS 11.15.260 (kidnapping), AS 11.15.220 (), and AS 11.15.230 (assault and battery).
Pursuant to a motion by the state, a waiver hearing was held before the family court on April 14, 1971. Both the victim 4 of the alleged criminal acts and the intake officer of the children's court testified at the hearing. The victim testified that she first met appellant in February of 1970, that a homosexual relationship developed while the two were living with appellant's mother, that the relationship continued in several apartments at a later time, and that the relationship had terminated several weeks prior to the occurrence of the alleged criminal acts on August 12-13, 1970.
During the late evening hours of August 12, 1970, appellant approached the victim in an Anchorage tavern, became angry when the victim refused to talk, and forced her outside and into a car with the help of three other persons. The five persons then drove to an apartment where they were met by three other individuals. She was held captive in the apartment for four to five hours during which time she was the victim of physical torture and sadism.
The victim described a threatened injection of a narcotic overdose, a forced disrobing, numerous beatings in which appellant participated, the 'psychedelic' painting of her body, the extinguishing of matches, an incense stick and a cigarette on her back and chest areas, an unsuccessful attempt to 'brand' her with a heated coat hanger, the singeing of her eyebrows with a match, the tearing of her hair with a paint scraper, the insetting of several sewing needles in her hands, feet and ear lobes, and the forced insertions into her vaginal canal of the neck of a champagne bottle and a broom handle.
Seven photographs admitted into evidence over appellant's objection, depict the numerous wounds suffered by the victim. The victim acknowledged that appellant had struck her the least number of times, but testified that soon after the torture began appellant told her that if she 'came back (appellant) could stop it.' The victim escaped from her kidnapper-assailants when, as they were returning her to the car, she managed to flee to a nearby apartment from which she was taken to a hospital.
Upon conclusion of the state's case, 5 the court found, in accordance with the requirements for waiver in AS 47.10.060(a) and Children's Rule 3(f), that there was probable cause to believe that appellant had committed the alleged criminal acts and that she was not amenable to the treatment available for children. A written waiver order and statement in support were entered June 1, 1971.
In attacking the validity of the waiver order, appellant raises three questions namely: (1) Did the children's court err in admitting hearsay testimony?; (2) Did the court err in admitting photographs of the victim taken soon after the assault?; and (3) Was sufficient evidence presented to the children's court to permit a finding of nonamenability? Appellant additionally alleges error in the denial of several motions for release from detention 6 and complains of a denial of her constitutional right to be speedily charged. 7
We consider first an issue not raised by the parties, the resolution of which is necessary for proper disposition of this case.
AS 47.10.290(6) defines 'minor' as 'a person under 18 years of age.' Appellant was born on October 30, 1952. The delinquent acts for which she was charged were alleged to have occurred on or about August 13, 1970, 2 1/2 months prior to her eighteenth birthday. However, the petition of delinquency, which initiated the children's proceedings below, was not filed until April 1, 1971, six months after appellant's eighteenth birthday.
The question for determination is whether jurisdiction of the children's court is dependent upon the age of a child at the time of the alleged delinquent acts or upon his age at the time the proceedings against him were initiated or culminated in trial. Case authority is split as to the proper age referent, the results largely depending upon the wording of the particular statutory provision involved. 8
AS 47.10.010(a) provides in relevant part:
Proceedings relating to a minor under 18 years of age . . . are governed by this chapter . . . when the minor
(1) violates a law of the state, or an ordinance or regulation of a political subdivision of the state.
For a number of reasons we have determined that the phrase 'under 18 years of age' refers to the age of the accused person at the time of the alleged offense. 9 First, as a general rule, the punishment for an offense is governed by the law in effect at the time the offense is committed. More fundamentally, we note the principal precept behind the children's court concept: that a person under eighteen years of age does not have mature judgment and may not fully realize the consequences of his acts, and that therefore he should not generally have to bear the stigma of a criminal conviction for the rest of his life. To allow officials charged with the execution of the law to prosecute a child offender as a criminal merely by deferring action until the child's eighteenth birthday would frustrate this purpose. Finally, serious constitutional issues would arise if the nature of the proceedings against a child offender were to depend on the arbitrary decision of law enforcement officials.
We hold that from the moment a child commits an offense he is exempt from criminal prosecution until the children's court properly waives its jurisdiction. 10
Before turning to the issues raised, it is important to consider the nature of the hearing which generated them.
The waiver procedure set out in AS 47.10.060 and Children's Rule 3 provides the means by which the children's court judge determines, prior to adjudicating the delinquency petition, that an accused child is not a suitable subject for the treatment available for child offenders. To justify waiver, the children's court judge must find, on sufficient evidence, that 'probable cause is established at the hearing for believing that the child committed the act with which he was charged in the petition and which if committed by an adult would constitute a crime and the child is not amenable to the treatment provided under AS 47.10 Article 1 and under (the Rules of Children's Procedure) . . ..' 11
The waiver hearing is a critically important stage in criminal proceedings against a child. At stake is the statutory promise of special rehabilitative treatment in lieu of the harsher sanction of criminal conviction. 12 Because the consequences of waiver are great, 'the hearing must measure up to the essentials of due process and fair treatment.' 13 The constitutional prerequisites for a valid waiver are reflected in Rule of Children's Procedure 3 which guarantees the child a hearing before the children's court judge after adequate notice thereof, counsel at the hearing who has had access to records and reports relevant to issues before the court, and a statement of reasons accompanying the waiver order.
Having noted their context, we turn to a consideration of the issues raised.
The victim's testimony at the waiver hearing contain her remembrance of several statements made by the alleged kidnapper-assailants. Appellant was granted a continuing objection to such testimony on the basis that it was hearsay and, in addition, that it violated her constitutional right to confront the witnesses against her. 14
The court below correctly assumed that its probable cause determination could not be based upon hearsay testimony. 15 Nevertheless, it overruled appellant's objection, giving as its reason that 'this testimony to be offered does not constitute the necessity to accept it as the truth or nontruth . . ..'
Hearsay is '(e)vidence of a statement which is made other than by a witness while testifying at the hearing offered to prove the truth of the matter stated . . ..' 16 At trial the state argued that the testimony regarding statements by third parties was being offered for the non-hearsay purpose of explaining the victim's conduct.
We have previously recognized that eyewitnesses to an event should be permitted to testify in a natural manner about what they observed. 17 'This ordinarily includes such background facts as where the witness was, how he happened to be there, and what interrelationship he may have had with other persons present at the event about which the witness testifies.' 18
In McKee v. State, we were invited to rest the decision on an exception to the hearsay rule, but we declined to do so and stated that the basis for admission was the practical principle of testimonial completeness. The statements herein were admissible for they provided background information about the event and the persons involved therein. As such they did not constitute hearsay.
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