Three Minors, Matter of
| Decision Date | 03 July 1984 |
| Docket Number | 14583 and 14603,Nos. 14208,s. 14208 |
| Citation | 100 Nev. 414,684 P.2d 1121 |
| Parties | In the Matter of THREE MINORS. RICKELL W., a minor, Appellant, v. The STATE of Nevada, Respondent. KEVIN P., a minor, Appellant, v. The STATE of Nevada, Respondent. ANGELO W., a minor, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
David Parraguirre, Public Defender, Robert George, Deputy Public Defender, Reno, for appellant Rickell W.
Morgan D. Harris, Public Defender and Victor John Austin, Deputy Public Defender, Las Vegas, for appellants Kevin P. and Angelo W.
D. Brian McKay, Atty. Gen., Carson City, Mills Lane, Dist. Atty., Michael L. Mahaffey, Deputy Dist. Atty., Reno, Robert J. Miller, Dist. Atty., and James Tufteland, Deputy Dist. Atty., Las Vegas, for respondent.
These three consolidated cases involve the certification or transfer of juveniles Rickell W., Kevin P., and Angelo W. from juvenile to adult court. The three cases are reversed and remanded to juvenile court for reconsideration in accord with the constitutional requirements of Kent v. United States, 383 U.S. 541, 86 S.Ct. 1045, 16 L.Ed.2d 84 (1966) and the substantive standards set out in In the Matter of Seven Minors, 99 Nev. 427, 664 P.2d 947 (1983).
In the case of Angelo, no statement of reasons for the transfer decision was given by the juvenile court. In Kent the United StatesSupreme Court applied to transfer proceedings a procedural standard of fundamental fairness. Such a standard requires that juveniles be given a hearing, the right to counsel, access to relevant court studies and reports, and a statement of reasons for the waiver decision. The statement of reasons need not be in the form of conventional findings of fact, but there must be a statement of reasons which is sufficient to show that the statutory requirement of "full investigation" has been met so as to permit meaningful appellate review.
The triggering event for the institution of transfer proceedings is the charged commission of a felonious offense by a juvenile 16 years of age or older. As mentioned in Seven Minors there must "prosecutive merit" 1 to the charge. Prosecutive merit exists if there is evidence upon which a grand jury would be expected to return an indictment; that is to say, when probable cause exists to believe that the subject juvenile committed the charged felony.
Requiring the state to establish prosecutive merit of the felony charge serves two purposes. The first is the furtherance of judicial economy. There is no point in the court's considering the difficult transfer issues until after it has been determined that a sound basis for prosecution exists in the event that transfer is effectuated.
Another purpose in requiring a showing of prosecutive merit is that it provides a reasonable safeguard against juveniles' being made subject to inherently fruitless transfer proceedings or to having to defend against unsupportable criminal prosecutions.
Because of these considerations the first business of the juvenile court in a transfer proceeding should be a resolution of the threshold requirement of prosecutive merit. The necessary determination of probable cause can be made preliminarily by the court on the basis of the written record. An adversary hearing is not required and the probable cause finding may be based on evidence taken from the petition, sworn investigative reports, witnesses' affidavits, police affidavits, or other informal but reliable evidence.
Due process does not require that a juvenile be given an adversary hearing comparable to the preliminary examination provided for in NRS Chapter 171. The process of finding probable cause in transfer matters is comparable to the finding that must be made in pre-adjudication detention matters.
In detention cases the "standard--probable cause to believe the suspect has committed a crime--traditionally has been decided by a magistrate in a nonadversary proceeding on hearsay and written testimony, and the Court has approved these informal modes of proof." Gerstein v. Pugh, 420 U.S. 103, 120, 95 S.Ct. 854, 866, 43 L.Ed.2d 54 (1975). After such an informal proof a youth may be properly and constitutionally detained; there is no reason why similar proof cannot support a finding of the existence of the level of prosecutive merit necessary to serve the ends of judicial economy and individual protection referred to above.
Transfer proceedings are essentially dispositional in nature and not adjudicatory. No determination of guilt or innocence is made. A juvenile should not be entitled to two preliminary examinations, one at the juvenile level and another at the adult level. Consequently, the state may be said to have met its initial burden of showing prosecutive merit if proofs consistent with the holding in Gerstein can be presented.
Even though there is no fundamental right to an adversarial hearing on the prosecutive merit issue, the court is not completely without restriction in making the necessary probable cause determination. For example, fairness requires that probable cause not be based entirely on unsworn hearsay evidence. Likewise, the determination cannot be based solely on the opinion of prosecutorial officials. See Gerstein at 118, 95 S.Ct. at 865.
Similar concerns about fairness arise when a preliminary probable cause finding is challenged by the juvenile. In the concluding summary of Seven Minors we allude to the need for a hearing in such instances. Fairness and due process do require that some kind of hearing be conducted in order that a juvenile be afforded an opportunity to present contrary evidence in opposition to the preliminary finding. This does not mean that the juvenile is entitled to a full adversary hearing; it does mean that he should not be foreclosed from presenting his side of the case. The nature and extent of such informal hearings will be left to the sound discretion of the hearing judge. 2
Applying these principles to the case at hand, it is apparent first in Rickell that even though a preliminary probable cause determination was not made, there was ample evidence to support such a finding. Therefore, we decline to reverse Rickell on this issue.
In the cases of Angelo and Kevin, the element of prosecutive merit appears to have been based solely on a statement that the district attorney "believes the evidence currently available merits prosecution." This conclusory statement is clearly not enough under Gerstein and the ruling of this case; therefore, Angelo and Kevin are reversed and remanded for failure to establish properly the required finding of prosecutive merit.
As pointed out in Seven Minors, the juvenile courts have in the past necessarily focused their interest on the welfare of the individual child before the court. As a consequence, juvenile courts have, in making transfer decisions, centered their attention on the child's best interests and have been concerned primarily with the question of whether the child before the court was likely to benefit from the juvenile court system. If, under the traditional rule, a child was determined to be "amenable" to juvenile court treatment, the child was retained within that jurisdiction; if not, the child would be transferred to the adult criminal court.
Seven Minors presents a departure from traditional juvenile court jurisprudence. Instead of allowing considerations concerning the "welfare of the child" to predominate, juvenile courts will emphasize the public interest and will concern themselves with whether or not justice and the public interest require that the offender be punished as an adult. Some youthful offenders, by reason of their conduct, can no longer be properly considered as children to be received by a childrens' court. Such offenders must, in the public interest and in the interest of justice, be removed from the childrens' court, the juvenile court, and be subjected to the punishment and accountability which we all must face if we engage in the commission of criminal offenses.
In Seven Minors substantive standards for transfer were declared. These standards were based primarily on the conduct of the minor rather than on a subjective evaluation as to how the minor might respond to juvenile court "treatment." Thus, ...
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