State v. Spina

Decision Date27 May 1999
Docket NumberNo. 97-240.,97-240.
Citation1999 MT 113,982 P.2d 421
CourtMontana Supreme Court
PartiesSTATE of Montana, Plaintiff and Respondent, v. Mary Kay SPINA, Defendant and Appellant.

Kenneth R. Olson, Great Falls, Montana, For Appellant:

Honorable Joseph P. Mazurek, Attorney General; C. Mark Fowler, Assistant Attorney General, Helena, Montana, Brant Light, County Attorney; Mike Rausch, Deputy County Attorney, Bozeman, Montana, For Respondent Chief Justice J.A. TURNAGE delivered the Opinion of the Court.

¶ 1 This case against Defendant, Mary Kay Spina (Spina), was transferred by the Youth Court to the Eighth Judicial District Court, Cascade County, where she was tried as an adult and convicted of negligent homicide in the shooting death of her father, Richard Spina. Spina appeals the Youth Court's waiver of its jurisdiction over her case and the resulting sentence imposed by the District Court. We affirm.


¶ 2 1. Did the Youth Court err in waiving its jurisdiction over Spina and transferring her case to the District Court where she was tried as an adult?
¶ 3 2. Do the transfer provisions of § 41-5-206, MCA (1995), violate Spina's right to equal protection under the law?
¶ 4 3. Do the juvenile transfer procedures of the Montana Youth Court Act violate Spina's rights under Article II, Section 15, of the Montana Constitution?


¶ 5 On April 25, 1996, Spina shot and killed her father inside the family's home on Malmstrom Air Force Base. At the time of the shooting Spina was fourteen years old. Earlier that evening, Spina's father had grounded her for coming home late. At approximately 11:15 p.m., Spina received a telephone call from her friend, Chris Cote. Spina told Cote she was upset with her father. She told him she was going to shoot her father with the 9 mm handgun she had under her pillow and then flee to New York to live with her brothers. Believing she was sincere and wanting to distract her from this course of action, Cote suggested that Spina meet him at a local hangout later that night, and she agreed.

¶ 6 Shortly thereafter, Spina descended the staircase of her home carrying a loaded 9 mm handgun in her pocket and various other items stowed inside a backpack. When Spina told her father she was leaving, he attempted to restrain her and an argument ensued. At some point during the course of this confrontation, Spina fired the gun, shooting her father in the abdomen. She then fled the house on foot.

¶ 7 Richard Spina placed a call to the county 911 dispatcher to request assistance, and two security officers from Malmstrom Air Force Base were dispatched to his house. Richard was conscious upon the officers' arrival and reported to them that he had been shot by his daughter.

¶ 8 After fleeing the residence, Spina ran to a nearby bowling alley. One of the bowling alley employees, Kenneth Cyr, noted that Spina was visibly upset and questioned her regarding the cause of her distress. Spina told him she had just shot her father. Cyr notified the police. He also took the 9 mm gun from Spina and placed it behind the reception counter. The police arrived, and Spina was taken into custody. Her father later died as a result of the gunshot wound.

¶ 9 Spina was charged before the Cascade County Youth Court with being a delinquent youth for the commission of the offense of deliberate homicide in the death of her father. Prior to her arraignment, the State filed a motion to have the case transferred from the juvenile court to the district court where Spina would be tried as an adult. The State also moved for a psychological evaluation of Spina by a court-appointed psychiatrist prior to the transfer hearing, and this motion was granted. After conducting an evidentiary hearing on the State's motion to transfer, the Youth Court waived its jurisdiction, and Spina's case was transferred to the District Court. In the District Court, Spina was tried by a jury and convicted of negligent homicide.

¶ 10 The District Court sentenced Spina to the Department of Corrections (DOC) for a term of twenty years. However, Spina's sentence was suspended upon condition that she enroll immediately in a residential therapeutic treatment facility at her own expense, as well as a number of other conditions. Spina appeals the transfer of her case by the Youth Court and the resulting sentence imposed by the District Court.


¶ 11 1. Did the Youth Court err in waiving its jurisdiction over Spina and transferring this case to the District Court where Spina was tried as an adult?

¶ 12 We review the transfer of a juvenile from the youth court to district court to determine whether the youth court abused its discretion. Matter of J.K.C. (1995), 270 Mont. 342, 344, 891 P.2d 1169, 1171. With regard to specific findings of fact relied on by the youth court in transferring the case, the standard of review is whether such findings are clearly erroneous. Matter of J.D.W. (1994), 267 Mont. 87, 91, 881 P.2d 1324, 1327. A finding is clearly erroneous where it is not supported by substantial evidence, the court has misapprehended the effect of the evidence, or our review of the record convinces us that a mistake has been committed. Interstate Prod. Credit Ass'n v. De Saye (1991), 250 Mont. 320, 323, 820 P.2d 1285, 1287. We review a lower court's conclusions of law to determine whether its conclusions are correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

¶ 13 The version of the Montana Youth Court Act in force at the time of Spina's transfer authorizes the youth court to transfer a juvenile to district court for prosecution if the youth is twelve or more years of age, the alleged conduct falls within one of several specified categories of offenses, including deliberate homicide as defined in § 45-5-102, MCA(1995), and the youth court finds, upon hearing all the relevant evidence, that there is probable cause to believe that:

(i) the youth committed the delinquent act alleged;
(ii) the seriousness of the offense and the protection of the community require treatment of the youth beyond that afforded by juvenile facilities; and
(iii) the alleged offense was committed in an aggressive, violent, or premeditated manner.

Section 41-5-206(1)(a) and (d), MCA (1995).

¶ 14 In transferring a matter to district court, the youth court may also consider:

(a) the sophistication and maturity of the youth, determined by consideration of the youth's home, environmental situation, and emotional attitude and pattern of living;
(b) the record of previous history of the youth, including previous contacts with youth court, law enforcement agencies, youth courts in other jurisdictions, prior periods of probation, and prior commitments to juvenile institutions. However, a lack of prior juvenile history with youth courts is not of itself grounds for denying the transfer.

Section 41-5-206(2), MCA (1995).

¶ 15 As her initial argument, Spina contends that the factual findings relied upon by the Youth Court are clearly erroneous in that "[t]hey are not based on a `serious consideration' of all the [statutory] criteria," but rather, are little more than a verbatim adoption of the proposed findings submitted by the State.

¶ 16 The State responds by pointing out that the record on appeal does not include a copy of the proposed findings of which Spina complains. The State argues that Spina violated Rule 9, M.R.App.P., by failing to give the State proper notice of her intention to raise this issue on appeal so that the relevant parts of the Youth Court record could be retrieved and included in the record on appeal. The State also argues that Spina's brief violates Rules 23(4) and 23(6)(e), M.R.App.P., because she fails to cite to those portions of the record which support her argument.

¶ 17 We agree that Spina's assertion that the Youth Court adopted its findings verbatim from the State's proposed findings cannot be verified from the record before us. It is axiomatic that this Court will not consider evidence not contained in the record on appeal, and a party's reference to evidence does not incorporate that evidence into the record. Johnson v. Killingsworth (1995), 271 Mont. 1, 3, 894 P.2d 272, 273. We therefore decline to address the question of whether the Youth Court's findings are clearly erroneous as a result of the verbatim adoption of those findings from the proposed findings of fact and conclusions of law submitted by the State at the transfer hearing. ¶ 18 Spina also contends that several of the Youth Court's findings of fact and conclusions of law are erroneous in that they do not accurately reflect the evidence presented at the transfer hearing. Specifically, Spina contends that the Youth Court's Finding of Fact Nos. 2, 3, 4, 5, 6, 7, 14, 15, 16, 17 and 19 and Conclusion of Law Nos. 4, 5, 15, 20, 21, 22, 24, 26, 27, and 28 are erroneous. We address each of Spina's contentions in turn.

Finding of Fact No. 2

¶ 19 Finding of Fact No. 2 was written by the Youth Court as a narrative description of the events which occurred on April 25, 1996, relative to the shooting death of Richard Spina. Spina does not contest any of the findings contained in the Youth Court's narrative. Rather, she contends that Fact No. 2 is clearly erroneous in that it omits important facts which "present[ ] a much different view of [Spina] than that of the cold-blooded psychopath." More particularly, Spina argues that the court's findings fail to refer to the testimony of Ken Cyr and Cascade County Deputy Sheriffs St. Onge, Dalke and Antonich regarding Spina's appearance of remorse and concern for her father shortly after the shooting.

¶ 20 The testimony of Ken Cyr which Spina contends should have been relied on and included in the Youth Court's determination of Finding of Fact No. 2 is as follows:

Q: Did she express concern about her dad?
A: Yes.
Q: And in fact, you said in your statement

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