State v. Toomey

• Decision Date: 05 November 1984
• Docket Number: No. 7592-0-II,7592-0-II
• Citation: 690 P.2d 1175,38 Wn.App. 831
• Parties: The STATE of Washington, Respondent, v. Patricia G. TOOMEY, Appellant.
• Court: Washington Court of Appeals

Page 831

38 Wn.App. 831

690 P.2d 1175

The STATE of Washington, Respondent, v. Patricia G. TOOMEY, Appellant.

No. 7592-0-II.

Court of Appeals of Washington Division 2.

Nov. 5, 1984.

Review Denied Jan. 4, 1985.

Timothy K. Ford, Court Appointed Atty., Seattle, John H. McGillard, Court Appointed Atty., Port Orchard, for appellant.

C. Dan Clem, Pros. Atty., Dennis A. Kole, Deputy Pros. Atty., Port Orchard, for respondent.

WORSWICK, Acting Chief Judge.

Duane Dudley enlisted 16-year-old Patricia Toomey to help him rob a sailor, using a gun. The scheme went horribly awry; Dudley killed the victim. The juvenile court declined jurisdiction and Toomey, tried as an adult, was convicted of first degree murder. On this appeal, she challenges the juvenile court's declination order and assigns error to several trial court rulings. We affirm.

It was Toomey who first gave police the details of the crime. ¹ Dudley, she said, asked her to come with him because "I'm a girl and I can always lure them." He also asked her to carry his gun in her purse. They spent several hours looking for a victim. Finally, about 1:30 a.m., they managed to lure Gerard Marzulli into an alley on the pretense of making a drug sale. Toomey slipped Dudley the gun and pretended to go off to get the merchandise. Dudley thought he saw a badge in Marzulli's wallet and was about to be arrested. He shot Marzulli. A few minutes later, on a prearranged signal, he rejoined Toomey and told her what he had done. On the basis of Toomey's admissions and corroboration by others, both she and Dudley, also a juvenile, were arrested and referred to the juvenile court.

The juvenile court conducted an extended declination hearing, a principal focus of which was the prospect of Toomey's rehabilitation in the juvenile, as opposed to the adult, penal system. At the conclusion of the hearing, the court made 21 findings of fact and declined jurisdiction. Toomey essentially claims here that the findings are unsupported by the evidence. She also claims that the declination order was based, in part, on unconstitutional sex discrimination. We conclude that the essential findings are supported by substantial evidence, that the juvenile court properly exercised its discretion, and that the discrimination claim is without merit. Accordingly, we hold the declination order valid.

Under RCW 13.40.110:

(2) The court after a decline hearing may order the case transferred for adult criminal prosecution upon a finding that the declination would be in the best interest of the juvenile or the public. The court shall consider the relevant reports, facts, opinions, and arguments presented by the parties and their counsel.

(3) When the respondent is transferred for criminal prosecution or retained for prosecution in juvenile court, the court shall set forth in writing its finding which shall be supported by relevant facts and opinions produced at the hearing.

(Italics ours.)

The juvenile court's order declining jurisdiction is discretionary and is subject to reversal only if exercised upon a ground, or to an extent, clearly untenable or manifestly unreasonable. In re the Welfare of Harbert, 85 Wash.2d 719, 538 P.2d 1212 (1975). Nevertheless, discretion is limited and is not properly exercised unless appropriate consideration is given to the Kent standards (Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966)). State v. Holland, 98 Wash.2d 507, 656 P.2d 1056 (1983); State v. Foltz, 27 Wash.App. 554, 619 P.2d 702 (1980). It is not necessary, however, that all of the Kent standards be satisfied. In re The Welfare of Hernandez, 15 Wash.App. 205, 548 P.2d 340 (1976). Factual determinations must be based only on a preponderance of the evidence. State v. Jacobson, 33 Wash.App. 529, 656 P.2d 1103 (1982). Factual findings supported by substantial evidence will not be disturbed. State v. Barriault, 20 Wash.App. 419, 581 P.2d 1365 (1978).

We will not burden this opinion by reciting the voluminous findings in this case. It will suffice to note that we can see, woven through the factual detail, the appropriate consideration and application of the Kent standards. Those standards, slightly paraphrased, are:

1. The seriousness of the alleged offense and whether the protection of the community necessitates prosecution of the case under the adult system.

2. The degree of premeditation, willfulness, violence and aggression involved in the alleged offense.

3. Whether the alleged offense was against persons or against property, greater weight being given to offenses against persons especially if injury resulted.

4. The prosecutive merit of the complaint.

5. The desirability of trial and disposition of the entire offense in one court when the defendant's associates are adults. ²

6. The sophistication and maturity of the juvenile, determined by consideration of his home, environmental situation, emotional attitude and pattern of living.

7. The record and the previous history of the juvenile.

8. Prospects for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile through services and facilities currently available to the juvenile court.

Kent v. United States, supra.

The first four standards are obviously satisfied. The underlying attempted robbery was a serious crime against a person, admittedly premeditated and most certainly violent. Toomey's argument that she does not represent a threat to the community is contrary to the facts. Her own expert, Dr. John Petrich, testified that her participation was influenced by certain personality disorders ³ and that she would repeat past behavior patterns if they were not corrected.

The decision was also supported by Toomey's history and her sophistication. Whether by choice or not, Toomey had been on her own for over a year. She knew how to operate in her environment, and she readily involved herself in adult situations. Although she had no record with the juvenile court, she had admittedly participated in drug sales and prostitution. She was a willing partner in the attempted robbery of Marzulli.

Toomey's argument centers largely on only a part of the last Kent standard, the "rehabilitation" or "treatment" standard. ⁴ She makes essentially two assertions: (1) the juvenile court based its order in part on the fact that she was pregnant, thus unconstitutionally discriminating against her on the basis of sex; and (2) the order is an abuse of discretion because it is contrary to the recommendations of the experts who testified. We find no merit in these assertions. ⁵

We reject the notion that any consideration of physical characteristics or conditions attributable to only one sex amounts to unconstitutional discrimination. The Equal Protection Clause does not demand that things which are different in fact be treated in law as though they were the same. Where a difference in treatment is not invidious, but rather reflects the fact that the sexes are not similarly situated in certain circumstances, it will be upheld. Michael M. v. Superior Court of Sonoma Cy., 450 U.S. 464, 101 S.Ct. 1200, 67 L.Ed.2d 437 (1981); Seattle v. Buchanan, 90 Wash.2d 584, 584 P.2d 918 (1978); State v. Wanrow, 88 Wash.2d 221, 559 P.2d 548 (1977); Singer v. Hara, 11 Wash.App. 247, 522 P.2d 1187 (1974). ⁶

The juvenile court considered Toomey's pregnancy only in terms of the problems it generated. According to the evidence, the juvenile system was not equipped to deal with those problems. It was in fact virtually certain that Toomey would not be kept at a state juvenile facility for more than a few months before being transferred to a private institution to have her child. If she decided to keep the child, she would then probably go to a group home. The transiency would disrupt counseling for her psychological problems. Moreover, attention was likely to be diverted from those problems by pregnancy-related concerns, such as the attainment of child-rearing skills or the termination of the parent-child relationship. These additional complications directly affected Toomey's potential for rehabilitation in the time available under juvenile jurisdiction. Consideration of the pregnancy was therefore not only proper, but necessary.

The contention that the juvenile court erred in refusing to adopt the expert's recommendations is also without merit. ⁷ Expert opinions are not binding. The court, not the particular expert testifying, makes the decision. State v. Ashley, 16 Wash.App. 413, 558 P.2d 302 (1976). See also State v. Loux, 24 Wash.App. 545, 604 P.2d 177 (1979). Substantial evidence supported the court's conclusion that there were neither facilities nor time to treat Toomey effectively in the juvenile system. ⁸ Whether treatment was successful or not, the court would lose jurisdiction, and the power to control Toomey's behavior, after 4 years. The adult system could exercise control over a much longer period. The court did not err by not following the recommendations.

In sum, we are satisfied that the juvenile court meticulously considered the Kent standards and that a balance of those standards favored declination. Its factual determinations were based on substantial evidence. Its discretion was properly exercised.

Toomey assigns three errors concerning the trial itself: (1) to admission of Dudley's hearsay statements under ER 804; (2) to a felony murder instruction; and (3) to the court's failure to instruct on a statutory defense to felony murder. We find no merit in these contentions.

by the time Toomey came to trial, Dudley had also been transferred to adult status, and had been tried and convicted. His appeal was pending. The State called him as a witness but he refused to testify, claiming the privilege against self-incrimination. He persisted, even when the court ordered him to testify. Thereupon, the State offered various hearsay statements Dudley had made--to other witnesses and to Toomey...