State v. Green
| Citation | 544 P.2d 356,218 Kan. 438 |
| Decision Date | 13 December 1975 |
| Docket Number | No. 47867,47867 |
| Parties | STATE of Kansas, Appellee, v. Alan Leroy GREEN, Appellant. |
| Court | United States State Supreme Court of Kansas |
Syllabus by the court
1. The provisions of K.S.A. 38-801 (Weeks) et seq., do not deprive a child sixteen years of age equal protection of the laws because it differentiates between boys sixteen years of age or older but less than eighteen years of age and those under sixteen years of age.
2. The provisions of K.S.A. 38-826(a)(6) (Weeks) do not embrace an unconstitutional delegation of power without adequate standards to determine a child's amenability to the juvenile court because the standard is expressly stated to be whether the child is 'amenable to the care, treatment and training program available through the facilities of the juvenile court,' in K.S.A. 38-808(b).
3. If substantial evidence is presented that a child over sixteen years of age, who is charged with murder in the second degree, is not amenable to the care, treatment and training program available through the facilities of the juvenile court, the district court's affirmative finding on the point must be affirmed.
4. 'Substantial evidence' is said to be evidence possessing something of substance and relevant consequence, and which furnishes a substantial basis of fact from which the issues tendered can be reasonably resolved.
5. In conducting a proceeding to determine whether the juvenile court should waive its jurisdiction over a child sixteen years of age charged with murder in the second degree under K.S.A. 38-808(b) (Weeks), both counsel and the court have a vital role to play in the exploration of possible dispositions, short of waiver, by which the best interests of the juvenile and the state might be secured.
6. In conducting a proceeding to determine whether the juvenile court should waive its jurisdiction over a child sixteen years of age charged with murder in the second degree under K.S.A. 38-808(b) (Weeks), recommendations concerning psychological testing are not binding on the district court.
7. In conducting a proceeding to determine whether the juvenile court should waive its jurisdiction over a child sixteen years of age charged with murder in the second degree under K.S.A. 38-808(b) (Weeks), testimony and reports from psychologists, local mental health centers, private psychiatrists, or any other person or agency with whom the juvenile has had contact relevant to his mental state will add support to the trial court's determination of amenability.
Maurice P. O'Keefe, Jr., O'Keefe, Ball, O'Keefe & Lacey, Atchision, argued the cause, and was on the brief for appellant.
Tracy D. Klinginsmith, county Atty., argued the cause, and Curt T. Schneider, Atty. Gen., was with him on the brief for appellee.
This is an appeal from the trial court's order declaring Alan LeRoy 'Rocky' Green, age sixteen, not amenable to the care, treatment and training program available through the facilities of the juvenile court, (K.S.A. 38-808(b) (Weeks)) and hence subject to prosecution as an adult for murder in the second degree. (K.S.A. 21-3402 (Weeks).)
Alan Green was born on March 23, 1958. His father and mother are separated. Alan's recent past shows he has lived with his father, both in Holton and Powhattan, his mother, both in Manhattan and Topeka, an aunt in Emporia and an uncle in Holton, shifting from one to another.
Various social workers' reports indicate Alan is of average intelligence although he has had difficulties in school. In Riley County his school difficulties resulted in his being adjudicated a truant from the Manhattan schools. As a result he was placed on probation under the supervision of the Riley County Juvenile Court Probation Office.
Another of Alan's difficulties is a drinking problem. Evidence indicates Alan and other members of his family drink intoxicating liquor in excess quantifies. When drinking Alan becomes aggressive and loses his temper. On two drinking occasions Alan was involved in fights in Topeka. Alan was adjudicated a miscreant for commission of a battery and placed on probation under the Shawnee County probation Department as a result of one fight. Alan's probation officer indicated Alan had generally obeyed the terms of this probation.
Relevant to the matter at bar, the state alleged that on June 9, 1974, Alan committed a murder in the second degree by stabbing and beating David Paul Lewis, Jr., an adult. (K.S.A. 21-3402 (Weeks).) The facts surrounding the murder are not clear. However, the record does indicate Alan had been drinking. The state initiated proceedings to have the Juvenile Court of Jackson County declare Alan a delinquent child not amenable to the care, treatment and training program available through the facilities of the juvenile court.
Maurice P. O'Keefe, Jr., was appointed guardian ad litem and the matter was tried to the juvenile court. A social worker and a probation officer testified concerning the facts heretofore related. Mr. Keller, the assistant director of the Division of Mental Health and Repardation Services, testified as to the state juvenile facilities, particularly the Youth Center at Topeka (formerly the Boys' Industrial School.) His testimony indicated youths over sixteen were admitted only if space was available, and at present the Youth Center cottages were full. He was unable to forecast when a cottage designed to house a juvenile over sixteen who had committed violent acts would be available. Furthermore very few boys over sixteen were admitted to the Youth Center, although some who were present before their sixteenth birthday stayed on at the Youth Center. Mr. Keller further testified the psychiatric facilities at Larned and Osawatomie were reluctant to accept a juvenile over sixteen who had been involved in a crime of violence.
A statement from Dr. Bonner, a psychiatrist employed by the Indian health Service who saw Alan on three occasions in the Jackson County jail, was introduced into evidence. Dr. Bonner found no evidence of disturbed thinking or psychosis in Alan, but recommended he be placed in a setting with other boys rather than in prison.
Faced with these facts, the psychiatrist's recommendation and the lack of state facilities, the Juvenile Court of Jackson County found Alan was not a fit and proper person to be dealt with under the Kansas Juvenile Code and waived jurisdiction.
The decision of the juvenile court was appealed to the District Court of Jackson County. There the parties stipulated to the admission of the juvenile court transcript, and additional evidence concerning juvenile facilities in Kansas was received. Frank Hoge, director of the Kansas Vocational Rehabilitation Services testified his facilities would probably not admit one who had committed murder.
Robert Whitfield, executive director of United Methodists of the State of Kansas discussed the juvenile facilities owned and controlled by the United Methodist Churches. He indicated a youth over sixteen who had been adjudicated by a juvenile court of any degree of murder would not be admitted to any United Methodist facility.
Based on a de novo review of the juvenile court transcript and the additional evidence offered by the parties, the trial court affirmed the juvenile court and declared Alan not amenable to the care, treatment and training program available through the facilities of the juvenile court. A companion of Alan's, also charged with murder in the second degree, was declared amenable to the care, treatment and training programs available through the facilities of the juvenile court by the district court judge. However, counsel for the appellee has informed the court Alan's companion had no role in the stabbing; his only involvement was in attempting to conceal the victim's body. Furthermore, Alan's companion had no previous juvenile record.
The relevant findings and conclusions made by the trial court in a memorandum decision filed November 6, 1974, are:
'Alan Leroy Greene was born, March 23, 1958.
'It is charged that Alan Leroy Greene, on June, 9, 1974, did commit an act, which if committed by an adult, would constitute murder in the second degree, in violation of K.S.A., 1973 Supp., 21-3402, a felony crime.
'Alan Leroy Greene comes from a 'broken' home, has lived with his father, his mother, and his aunt, shifting from one to the other. He quit high school in his sophomore year. He is of average intelligence. He drinks intoxicating liquor to excess and in the past has committed acts, while intoxicated, that he does not remember. He is an aggressive, athletic boy and when drinking, his aggressive behavior increases. He is an angry young man, and when drinking his anger and hostility increases, and he loses control.
'He has been before the Juvenile Court of Riley County, Kansas for truancy from the Manhattan schools, and was probated under the supervision of the Juvenile Court Probation Officer of Riley County.
'Subject moved to Topeka, and his probation supervision was transferred to the Juvenile Court Probation Officer of Shawnee County.
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