State v. Milk

• Decision Date: 27 April 1994
• Docket Number: No. 18483,18483
• Parties: STATE of South Dakota, Plaintiff and Appellee, v. Corey Edward MILK, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 313

519 N.W.2d 313

37 A.L.R.5th 895

STATE of South Dakota, Plaintiff and Appellee, v. Corey Edward MILK, Defendant and Appellant.

No. 18483.

Supreme Court of South Dakota.

Considered on Briefs April 27, 1994.

Decided July 6, 1994.

Mark Barnett, Atty. Gen., Patricia J. Froning, Asst. Atty. Gen., Pierre, for plaintiff and appellee.

Jeff Larson, Minnehaha County Public Defender, Sioux Falls, for defendant and appellant.

WUEST, Justice.

Corey Edward Milk (Milk) appeals claiming the order of the circuit court transferring his case from juvenile to adult court was in error. We reverse in part and affirm in part.

FACTS

Milk is a minor male whose date of birth is January 6, 1977. Milk has a history of contacts with the juvenile justice system in South Dakota. At the age of eleven, Milk was alleged to be a child in need of supervision (ChINS) and was ordered to be placed in shelter care at the Threshold Shelter Care Program. In March 1990, Milk was adjudicated delinquent on a simple assault charge. In July 1991, he was adjudicated delinquent on a charge of injury to property in the third degree for breaking a window at his mother's house. Thus, although there have been other referrals and probation violations, and Milk has been placed at both McCrossan's Boys Ranch and the South Dakota State Training School, he had--prior to the incidents arising in this case--only two delinquency adjudications for offenses that both would have been misdemeanors if committed by an adult.

In November 1992, the State filed a ChINS petition alleging that Milk was beyond the control of his parents or guardians and was unamenable to parental control. A temporary custody hearing was held on November 16, 1992 and the court ordered that Milk be held in the temporary custody of Threshold Youth Services. Milk failed to appear for a dispositional hearing three days later; thus, Judge Kean issued a warrant of arrest, ordering that Milk be placed in the Minnehaha County Juvenile Detention Center (JDC) when he was located. Milk was located and on November 25, 1992 a hearing was held on the allegation that Milk was a child in need of supervision as well as probation violations. The court determined that the allegations were true and correct and sentenced Milk to serve ninety days at the JDC. On January 12, 1993, the State filed a petition alleging Milk had committed three counts of burglary in the third degree under SDCL 22-32-8 and one count of burglary in the second degree under SDCL 22-32-3. ¹ On January 15, 1993, another petition was filed alleging that Milk had committed aggravated assault on a juvenile corrections officer under SDCL 22-18-1.1(3). On February 9, 1993, a petition was filed alleging a separate third degree burglary offense committed by Milk.

On February 20, 1993, shortly after noon, a disturbance occurred at the JDC involving Milk and two other juveniles. The juveniles threw plastic chairs, overturned foosball and ping-pong tables, and broke off broom handles to use as weapons to keep staff and law enforcement away. When a deputy moved toward Milk (along with other officers) Milk took one downward swing with the broom handle. The broom handle hit the deputy in the corner of the eye and the shoulder. The deputy stated that after he was hit, "I had a little blood, but that's about all." The deputy did not seek medical attention. The deputy's glasses were on his lapel; the glasses were knocked off and broken. Based on these actions, Milk was charged in a delinquency petition with aggravated assault on a law enforcement officer under SDCL 22-18-1.1(3), intentional damage to property under SDCL 22-34-1, and attempted escape under SDCL 22-11A-1 and -2.

The State filed motions to transfer the entire matter ² to adult court. A transfer hearing was held, and the court found prosecutive merit on the intentional damage to property, aggravated assault, and four burglary charges, ³ and found that it would be contrary to the best interests of Milk and of the public for the juvenile court to retain jurisdiction over Milk.

A court trial was held on the aggravated assault and intentional damage to property charges. Milk was found guilty on the aggravated assault charge. ⁴ The court issued a judgment and sentenced Milk to a suspended four-year penitentiary sentence upon various conditions. Milk raises two issues. ⁵

I. DID THE LOWER COURT ERR IN RULING THAT HEARSAY IS ADMISSIBLE EVIDENCE AT A TRANSFER HEARING?

At the transfer hearing, Milk objected to admission of certain hearsay testimony of two witnesses. Evidentiary rulings of the court are reviewed under an abuse of discretion standard. Zens v. Chicago, Milwaukee, St. Paul and Pac. R.R. Co., 479 N.W.2d 155, 159 (S.D.1991) (citations omitted). See State v. Christopherson, 482 N.W.2d 298, 300 (S.D.1992).

The first line of hearsay came in the testimony of Detective Don Satterlee (Satterlee) of the Sioux Falls Police Department. The purpose of Satterlee's testimony was to link Milk to a number of burglaries with which he was charged. Satterlee had not personally investigated the burglaries, nor had he interviewed any of the victims. The knowledge that Satterlee had of the burglaries was based on his reading of reports that had been prepared by investigating officers, which officers were not called to testify. Milk objected to these portions of Satterlee's testimony as hearsay; the court overruled the objections.

The second item of hearsay objected to by Milk was an exhibit prepared by juvenile probation officer Chuck Wildes (Wildes). Wildes testified that he "sat down one night when there was nobody around" with an unofficial file regarding Milk, and "went through the whole case and kind of did the whole file, did a synopsis of it just to give me a grasp of what was contained in the file and for quick reference--mainly for my reference." Wildes prepared a list, and noted every referral from the police department, including numerous items on which there was never any official action, adjudication or disposition. The list was prepared to assist Wildes in his testimony. Milk objected to admission of the exhibit, claiming it was a hearsay violation. The court overruled, stating that the exhibit would be allowed as a "business report." We note that in finding of fact IV, the court referred to this exhibit as, "Corey Milk's juvenile record, which record was introduced and received during the Transfer hearing[.]" (Emphasis added.)

"Hearsay" is defined as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted." SDCL 19-16-1(4). Hearsay is not admissible except as provided by law. SDCL 19-16-4.

The State argues that the rules of evidence are not strictly applicable in a juvenile transfer hearing. SDCL 19-9-14 provides, however, that the South Dakota Rules of Evidence "apply to all actions and proceedings in the courts of this state." One of the eight listed exceptions to the general applicability of the rules is, "Disposition hearings in juvenile court." SDCL 19-9-14(7). SDCL 26-7A-1(17) defines a "dispositional hearing" as "a hearing after adjudication at which the court makes an interim or final decision in the case." ⁶ Since transfer hearings take place before adjudicatory hearings--not after--they cannot be characterized as "dispositional" under our statutory scheme. Although this court has stated that transfer hearings are "not adjudicatory in nature," we have not held that transfer hearings are dispositional, a position urged by the dissent. State v. Flying Horse, 455 N.W.2d 605, 608 (S.D.1990). Further, such a holding is not warranted under our statutory scheme, which specifically provides that dispositional hearings are held "after adjudication." SDCL 26-7A-1(17). Juvenile transfer hearings are clearly not included among the listed exceptions to the application of South Dakota Rules of Evidence. Id. Hearings held for the purpose of determining whether a juvenile matter should be transferred to adult court are "proceedings" held in the circuit courts of this state; thus, the rules of evidence are applicable.

Further, we have noted that a juvenile transfer hearing, "is a ' "critically important" action determining vitally important statutory rights of the juvenile[.]' " In re L.V.A., 248 N.W.2d 864, 867 (S.D.1977) (citing Kent v. United States, 383 U.S. 541, 553, 86 S.Ct. 1045, 1053, 16 L.Ed.2d 84, 93 (1966)). See State v. Harris, 494 N.W.2d 619, 623 (S.D.1993). We refuse to expand the list of exceptions to the applicability of the rules of evidence to include juvenile transfer hearings.

The dissent presents authority from other states in support of the argument that hearsay evidence should be admissible at juvenile transfer hearings. Rather, citation of this authority serves to support the argument that the decision to admit hearsay at juvenile transfer hearings should be made via the legislative or rulemaking process. Each of these other states have made legislative or rulemaking decisions that allow for hearsay evidence at such hearings. ⁷ The state-by-state variations in statutory scheme are revealed through examination of statutory or case law from these other jurisdictions. See, e.g., ARIZ.R.CRIM.PRO. 5.4(c) (under which juvenile transfer hearings are conducted, and providing that, "The finding of probable cause shall be based on substantial evidence, which may be hearsay in whole or in part" including written reports of experts, documentary evidence without foundation and testimony of witnesses concerning declarations of others); CAL.WELF. & INST.CODE § 707 (providing that the determination of "fitness" of a juvenile for adult court is based in large part on a written report of the juvenile's probation officer detailing an investigation of the behavioral patterns and social history of the minor); HAW.REV.STAT. § 571-22(b)(5)-(6), (b)(8) (directing the transfer court to...