State v. D. W. C.

• Citation: 163 W.Va. 494,256 S.E.2d 894
• Decision Date: 17 July 1979
• Docket Number: No. 14324,14324
• Parties: STATE of West Virginia v. D. W. C., a juvenile, et al.
• Court: Supreme Court of West Virginia

Page 894

256 S.E.2d 894

163 W.Va. 494

STATE of West Virginia v. D. W. C., a juvenile, et al.

No. 14324.

Supreme Court of Appeals of West Virginia.

July 17, 1979.

Syllabus by the Court

"Where the findings of fact and conclusions of law justifying an order transferring a juvenile proceeding to the criminal jurisdiction of the circuit court are clearly wrong or against the plain preponderance of the evidence, such findings of fact and conclusions of law must be reversed. W.Va.Code § 49-5-10(a) (1977)." Syllabus Point 1, State v. Bannister, W.Va., 250 S.E.2d 53 (1978).

Garrett, Whittier & Garrett, William C. Garrett and Thomas N. Whittier, Webster Springs, for plaintiff-in-error.

Chauncey H. Browning, Atty. Gen., Michael G. Clagett, Asst. Atty. Gen., Charleston, for defendant-in-error.

MILLER, Justice:

This case presents the narrow issue of the propriety of a transfer from juvenile court to criminal court where the offense charged is murder. The transfer took place during the time the 1977 Juvenile Act was in effect. ¹

The basic question is whether there was "clear and convincing proof" that "there are no reasonable prospects for rehabilitating the child through resources available to the court under this article." ² We determine that the evidence did not meet the required level of proof, and reverse the transfer order.

The juvenile, D.W.C., was 16 years old and in the company of another juvenile at the time of the commission of the alleged murder. The crime occurred in the home of the victim, an elderly man. D.W.C. had occasionally done chores for the victim and the two had been friendly over a period of time. There were no eyewitnesses to the crime except the two juveniles. The murder weapon was a knife and apparently each juvenile accuses the other of being the perpetrator of the crime.

At the time of the transfer hearing, D.W.C. had been interviewed and tested by a psychiatrist, Dr. Thomas S. Knapp, and a psychologist, Mr. Donald R. Swick. These experts were obtained by the juvenile's attorney, and their testimony was taken by deposition which was introduced by the State in its case-in-chief.

Both the psychiatrist and the psychologist were of the opinion that D.W.C. had no severe psychiatric disorder, but did have a passive personality and an average IQ. Both were also of the view that counseling would be helpful and that there were reasonable prospects for his rehabilitation within the juvenile system. ³

The State argues that on cross-examination the psychiatrist, Dr. Knapp, changed his position concerning the juvenile's prospects for rehabilitation. This contention is predicated on a question in which Dr. Knapp was asked to assume that D.W.C. had an active rather than passive personality and had been an active participant in the crime. The doctor answered that, based on these assumptions, the prospects for rehabilitation within the juvenile system were not good. However, the doctor specifically qualified his answer by stating that the assumption that the juvenile had an active personality trait was contrary to the test results and diagnosis; that the only way the test results could be wrong would be if the juvenile had manipulated the results; and that this kind of manipulation would require a much higher intelligence than D.W.C. possessed. ⁴

The State's case also contained the testimony of personnel of the school attended by D.W.C. Their testimony was that the juvenile had had some disciplinary problems at school, but had not been expelled. ⁵ The principal of the school thought that the juvenile had had some "mental health counselling," but could not recall the details.

The juvenile's attorney produced testimony from neighbors, relatives and employers which indicated that he appeared to be normal and was a hard worker. They stated he had no violent tendencies and was a somewhat passive individual.

We recognize initially that the 1977 transfer standards for juveniles have been made more explicit and less stringent by the 1978 amendments to our Juvenile Act. ⁶ Under the 1977 standards, we have stated that transfer "should be the exception and not the rule." State ex rel. Smith v. Scott, W.Va., 238 S.E.2d 223, 226 (1977). Even the 1978 amendments to the juvenile transfer section of the Code do not make a transfer mandatory unless the juvenile is over 16 years of age and Demands a transfer under W.Va.Code, 49-5-10(c) (1978).

The present case is somewhat analogous to State v. Bannister, W.Va., 250 S.E.2d 53 (1978), where a 16-year-old juvenile had killed his father. After a considerable lapse of time, during which the juvenile received psychiatric counseling, the juvenile transfer hearing was held. Three psychiatrists stated the child had responded to the psychiatric counseling to the extent that they doubted he would exhibit future violent behavior. A State's psychiatrist differed, stating that another violent episode was a possibility. We concluded that the State had failed to sustain its burden of proving by clear and convincing evidence that there were no reasonable prospects for rehabilitation, holding in Syllabus Point 1:

"Where the findings of fact and conclusions of law justifying an order transferring a juvenile proceeding to the criminal jurisdiction of the circuit court are clearly wrong or against the plain preponderance of the evidence, such findings of fact and conclusions of law must be reversed. W.Va.Code § 49-5-10(a) (1977)."

In State v. Trail, W.Va., 255 S.E.2d 901 (1979), we upheld a transfer from juvenile to criminal court on a murder charge based on our conclusion that the State had met its burden under the 1977 Act. The major emphasis at the transfer hearing was the commission of prior crimes while the defendant was a juvenile and the lack of rehabilitative prospects.

In the present case, the critical evidence was that of the psychiatrist and psychologist, both of whom testified that the juvenile was amenable to rehabilitation in the juvenile system. We do not find the State's argument persuasive. Because the psychiatrist was asked to assume, contrary to his tests and diagnosis, that the juvenile had an active personality and, upon this assumption, to offer an opinion as to his rehabilitative prospects, that opinion was not based on a correct factual premise. We have generally held that hypothetical questions put to experts which are based on incorrect factual assumptions are improper. Barnett v. State Workmen's Compensation Commissioner, 153 W.Va. 796, 172 S.E.2d 698 (1970); Schroeder v. Adkins, 149 W.Va. 400, 141 S.E.2d 352 (1965).

The record before us does not demonstrate by clear and convincing evidence that the child is without reasonable prospects of rehabilitation as required by the 1977 Juvenile Act. W.Va.Code, 49-5-10 (1977). Indeed, it demonstrates the contrary, since the experts indicate he will respond to rehabilitative counseling.

Certainly a primary factor in this case is that the juvenile has no prior juvenile record. One of the most comprehensive and thoughtful articles in the field of juvenile transfer standards is Professor Feld's Reference of Juvenile Offenders for Adult Prosecution: The Legislative Alternative to Asking Unanswerable Questions, 62 Minn.L.Rev. 515 (1979). One of his principal points is that the transfer decision should be keyed to the particular background of the individual. He also suggests that statistics demonstrate the need for giving consideration to the juvenile's prior felony record:

"Thus, regardless of the present offense, a youth must have been previously convicted of an offense that would have been a felony if committed by an adult to warrant adult prosecution. The requirement of a prior serious offense underscores the belief advanced in this Article that only the serious offender who is likely to repeat should properly be excluded from the jurisdiction of the juvenile court." (62 Minn.L.Rev. at 614)

Factors which W.Va.Code, 49-5-10 (1977) identifies as bearing on the rehabilitative decision, and which appear to favor the juvenile in this case, are that his mental and physical condition are not abnormal and that his emotional attitude and family environment do not demonstrate any pattern of hostility on his part. It is true that school officials indicated that on occasion he was hostile to their exercise of disciplinary authority, but at no time did it result in serious disciplinary charges. See, State ex rel. E. D. v. Aldredge, W.Va., 245 S.E.2d 849 (1978).

In State ex rel. Smith v. Scott, supra, we emphasized that age alone is not a sufficient ground for transfer. Both the 1977 and 1978 Juvenile Acts extend juvenile jurisdiction to age 20, where a child 16 years of age or older commits an act which would be a crime if he were an adult. W.Va.Code, 49-5-2. The juvenile in this case meets this statutory requirement.

Other courts which have construed juvenile acts similar to our 1977 Act have held, on facts comparable to those here, that the transfer was not justified under their statutory standards. In re White, 224 Kan. 717, 585 P.2d 1046 (1978); In re Patterson, 210 Kan. 245, 499 P.2d 1131 (1972); In re Mack, 22 Ohio App.2d 201, 51 Ohio Ops.2d 400, 260 N.E.2d 619 (1970); S. H. v. State, 581 P.2d 916 (Okl.Cr.1978); R. E. M....