State v. Buelow, 89-346

• Decision Date: 14 December 1990
• Docket Number: No. 89-346,89-346
• Citation: 587 A.2d 948,155 Vt. 537
• Court: Vermont Supreme Court
• Parties: STATE of Vermont v. Steven BUELOW.

Page 948

587 A.2d 948

155 Vt. 537

STATE of Vermont v. Steven BUELOW.

No. 89-346.

Supreme Court of Vermont.

Dec. 14, 1990.

Motion for Reargument Denied Jan. 3, 1991.

John Quinn, Addison County State's Atty., Middlebury, and Gary S. Kessler and Pamela Hall Johnson, Dept. of State's Attys., Montpelier, for plaintiff-appellee.

Sessions, Keiner, Dumont & Barnes, Middlebury, for defendant-appellant.

Before ALLEN, C.J., and PECK, GIBSON, DOOLEY and MORSE, JJ.

GIBSON, Justice.

Defendant appeals from denial of his motion to transfer his case from criminal to juvenile court. We affirm.

I.

Defendant, who was fourteen years old at the time of the crime, is charged with murder while perpetrating a sexual assault on his seven-year-old cousin. The girl's body was found near her home three days after defendant had moved in with her family. Initially, defendant denied having committed the crime; indeed, he even participated in the search efforts. Two days after the homicide, however, he confessed to the killing during the administration of a polygraph test. He was then arraigned in criminal court in accordance with 33 V.S.A. § 632(a)(1)(B), which subjects to criminal proceedings persons between the ages of fourteen and sixteen who commit certain serious crimes. The court denied defendant's motion, made pursuant to 33 V.S.A. § 635(b), to transfer the case to juvenile court, and this appeal followed.

On appeal, defendant argues that (1) the court erred by applying a mandatory presumption of adulthood and by requiring an extraordinary standard of proof to overcome that presumption; (2) the court's denial of the motion to transfer was an abuse of discretion because several of its findings and conclusions were unsupported by the record; and (3) the § 635(b) transfer proceeding violates due process because it vests absolute discretion in the court without prescribing any standards or burden of proof.

II.

Defendant first argues that the trial court erred by assuming § 632(a)(1)(B) created a presumption that criminal proceedings were appropriate, by placing on defendant the burden of showing that juvenile proceedings would be more appropriate, and by requiring an extraordinary standard of proof to meet that burden. We disagree.

Persons between the ages of fourteen and sixteen who are charged with certain serious crimes, including murder, "shall be subject to criminal proceedings as in cases commenced against adults, unless transferred to juvenile court." 33 V.S.A. § 632(a)(1)(B); see also 33 V.S.A. § 644(c) ("any proceeding concerning a child who is alleged to have committed an act specified in section 635a(a) of this title after attaining the age of 14 but not the age of 18 shall originate in district or superior court") (emphasis added). 33 V.S.A. § 635a(a) includes murder in its list of offenses. Accordingly, in situations where a fourteen-to-sixteen-year-old is charged with murder, the criminal court has exclusive original jurisdiction over the matter. Pursuant to 33 V.S.A. § 635(b), however, the court "may" transfer such a proceeding to juvenile court. In such case, the party seeking to transfer the proceeding out of criminal court has the burden of showing that the case does not belong there. State v. Anderson, 385 A.2d 738, 740 (Del.Super.Ct.1978); Carter v. State, 382 So.2d 871, 872 (Fla.Dist.Ct.App.1980); State v. Woodward, 737 P.2d 569, 571 (Okla.Crim.App.1987); Commonwealth v. Wallace, 495 Pa. 295, 299, 433 A.2d 856, 858 (1981). In the reverse situation, where a person is initially within the jurisdiction of the juvenile court, the party seeking a transfer to criminal court must show that juvenile court is an inappropriate forum. Crosby v. State, 71 Md.App. 56, 63, 523 A.2d 1042, 1045 (1987). No compelling reason has been offered as to why the moving party should not bear the burden of proof in each instance.

Defendant argues that §§ 634 ¹ and 635 ² generally indicate a presumption of juvenile court jurisdiction, and that even if § 632(a)(1)(B) creates a presumption of adulthood, the presumption "bursts" when the party seeking a transfer to juvenile court introduces any evidence supporting a conclusion that the defendant is a child. This reasoning is flawed in two respects. First, the more specific sections, §§ 632(a)(1)(B) and 644(c), control the question of jurisdiction. See State v. Jarvis, 146 Vt. 636, 638, 509 A.2d 1005, 1006 (1986) (when two statutory provisions, one general and the other specific, deal with the same subject matter, the more specific provision prevails). Second, defendant mistakenly borrows the concept of "presumption" from the context of the rules of evidence. In that context, a presumption is a device applied to allocate burdens of going forward with, or proving, the elements of a crime. See State v. Dacey, 138 Vt. 491, 494-95, 418 A.2d 856, 858 (1980). The instant statutes, however, concern jurisdiction, not the substantive adjudication of a crime. See Calhoun v. State, 397 So.2d 1152, 1153 (Fla.Dist.Ct.App.1981) (because decision regarding which court should prosecute juvenile does not create a new element of the crime or have anything to do with a substantive adjudication, it is not unconstitutional for juvenile to retain burden of justifying transfer to juvenile court).

Further, we disagree with defendant's assessment of the trial court's use of the words "presumption" and "extraordinary attributes." With regard to the former term, the court stated:

Although the Vermont Supreme Court has addressed questions regarding reverse transfers from criminal court to juvenile court, it has not specifically commented on who has the burden of proof in such cases.... Because the statute creates a presumption against the defendant's suitability for juvenile proceedings, the defendant must overcome that presumption before his case can be transferred to the jurisdiction of the juvenile court. Hence, the burden of proof lies with the defendant.

Although the court could have been more precise, the statement indicates the court's understanding of the fact that the criminal court had exclusive original jurisdiction and that the party seeking to transfer the proceeding had the burden of showing why a transfer would be appropriate.

Regarding the other term complained of, "extraordinary attributes," the court stated:

Considering the gravity and consequences of the defendant's alleged actions, the undeniably violent nature of the offense itself, the uncertainty as to the defendant's potential future conduct, and the certainty that the defendant will be released from all custody or supervision no later than his twenty-first birthday, less than seven years from now, it would be imprudent to transfer this case to the jurisdiction of the juvenile court. Furthermore, the legislature has clearly mandated that an individual of defendant's age who is alleged to have committed murder while perpetrating a sexual assault shall be subject to criminal proceedings.... Defendant does not present any extraordinary attributes that would remove him from the clear mandate of the statute. Consequently, defendant should remain within the jurisdiction of the criminal court.

In this context, "extraordinary attributes" is an unfortunate, but harmless, phrase. In its findings and conclusions, the court explicitly recognized that, despite the original jurisdiction in criminal court, it had the discretion to transfer the matter to juvenile court. The court then discussed in detail the various factors it would consider before coming to its decision. The most significant of those factors are summed up in the first sentence of the paragraph quoted above, which states the principal reasons for the court's decision not to transfer the case. The following two sentences, including the "extraordinary attributes" phrase, merely supplement the court's reasoning.

III.

Defendant next argues that the court abused its discretion by making clearly erroneous and unsupported findings and conclusions. Defendant claims that the following findings were unsupported by the record: (1) that defendant's opposition to a family move resulted in family problems; (2) that defendant was evaluated as prone to impulsive and sometimes explosive conduct; (3) that there was uncertainty as to whether defendant posed a future risk to society; (4) that an evaluating physician examined defendant to determine whether he could be characterized as a sex offender; (5) that defendant viewed himself as a victim of his abusive stepfather; (6) that defendant fit within the general description of a pattern sexual offender even though he did not exhibit some of the classic signs of a sex offender; (7) that defendant did not have an anti-social personality but was prone to impulsive and sometimes violent conduct; and (8) that defendant possessed a sufficient level of maturity to understand the nature of the act of killing another human being.

Findings of fact "will not be set aside unless, taking the evidence in a light most favorable to the prevailing party and excluding the effects of modifying evidence, the findings are clearly erroneous." Desrochers v. Perrault, 148 Vt. 491, 494, 535 A.2d 334, 336 (1987). Even when there is substantial contrary evidence, findings supported by credible evidence must stand. Id. Upon review of the record, we conclude that the court's findings are supported by credible evidence.

The only challenged findings that merit further discussion are the court's determination that "[d]efendant viewed himself as a victim of his stepfather's abusive treatment and his family's continual move from one home to another," and that he "fit within the general description of a pattern sexual offender." The court heard testimony from defendant's expert that defendant did not set himself up as a victim or manifest some of the other characteristics of a typical sex offender. Another expert, however, stated in a psychological report requested by defend...