Opinion
No. 57201-6-I.
February 25, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 04-1-02256-2, Gerald L. Knight, J., entered October 26, 2005.
Affirmed by unpublished per curiam opinion.
After his release from commitment to the Juvenile Rehabilitation Administration (JRA) for burglary and theft, 15-year-old Austin Mays was charged with the premeditated murder of a witness who had reported Mays for those earlier crimes. Because Mays' juvenile court decline hearing neither determined guilt nor imposed punishment, the trial rights to confrontation of adverse witnesses and a jury determination of the facts did not apply at the hearing. The juvenile court did not abuse its discretion in determining that the factors set forth in Kent v. United States supported the transfer of Mays' prosecution to adult court. We affirm Mays' resulting adult convictions.
383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966).
FACTS
In June 2004, 15-year-old Austin Mays proposed that 16-year-old Jeremy Boone and 18-year-old Perry Rothermel join him in burglarizing the home of Mays' former neighbor, Larry Kloes. Kloes, an adult, had reported Mays for car theft and burglary in 2003, which resulted in Mays' commitment to the JRA until March 2004. Mays said Kloes owned expensive cars, jewelry and clothes, and they could make as much as $10,000 each in profit by burglarizing Kloes' house. On June 23, Mays told the others they should commit the burglary the next weekend. He suggested that Kloes would not be home, but said if he was, they should plan to kill him and dispose of the body in a mineshaft.
On June 25, the three obtained golf clubs and a baseball bat. In the middle of the night, Mays drove them to Kloes' house in Boone's car. The lights in the house were on and music was playing. Mays entered the house and returned to say Kloes was sleeping inside. Mays proposed that Boone knock on the door and he and Rothermel hide inside to ambush Kloes when he came downstairs. Boone knocked, and when Kloes came within range, Rothermel hit him on the head with the bat, knocking him to the ground. At Mays' direction, Rothermel kept hitting Kloes, hard enough to break Kloes' jaw and cause blood to spurt to the ceiling. Kloes barricaded himself in his bedroom, but emerged when Mays promised he would not be further assaulted if he opened his gun safe. After opening the safe, Kloes asked for an ambulance, but the intruders ignored him and continued taking his guns, tools, and other items outside.
Mays demanded Kloes sign checks and sign over the title to his car. Kloes was not able to do so because of his injuries. As Kloes lay half-conscious on a couch, Mays and Rothermel decided he should be finished off with one of his guns. Boone agreed to do it because he had never shot anyone before. Mays constructed a makeshift silencer out of a bottle and electrical tape, affixed it to one of Kloes' guns, and told Boone to shoot him. Boone pulled the trigger, but the gun jammed. Mays cleared the jam, returned the gun to Boone and instructed him to shoot Kloes three times in the head. Boone did so.
Mays took Kloes' sports car and the other two left in Boone's car. Kloes' body was left at the house and his property was taken to a house in Fife. Boone became nervous over the next two days, turned himself in and gave police statements about the killing. Mays and Rothermel were arrested in Kloes' car. Forensic evidence that corroborated Boone's account was recovered from the cars, Kloes' house, and the house in Fife. Mays was charged with first degree aggravated murder as a juvenile, Boone was charged in adult court under the automatic decline statute, and Rothermel, 18, was also charged as an adult.
The State moved to transfer Mays' case to adult court. After a four-day hearing, the trial court granted the motion. Following negotiations, Mays was charged with first degree murder, first degree assault, first degree burglary and first degree robbery. In exchange for the reduction in charges, Mays waived most of his appeal rights and agreed to a stipulated trial, reserving the right to appeal the decline of juvenile jurisdiction decision. Mays was found guilty and received a 42-year exceptional downward sentence. This appeal follows.
ANALYSIS
Mays argues that the admission of hearsay at the decline hearing violated his right to confrontation and due process. He also contends he was entitled to a jury determination of all facts beyond a reasonable doubt at the decline hearing. We disagree on both points.
Mays first contends that Apprendi v. New Jersey and its progeny have removed any meaningful distinction between a juvenile decline hearing and trial, with the result that all trial rights must now apply to decline hearings. Mays' arguments, however, do not materially differ from those rejected in State v. H.O., and In re Pers. Restraint of Hegney, and he makes no persuasive argument against following these well-reasoned decisions.
530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
119 Wn. App. 549, 551-56, 81 P.3d 883 (2003), rev. den., 152 Wn.2d 1019 (2004).
138 Wn. App. 511, 158 P.3d 1193, rev. den., No. 80241-6 (Oct. 2, 2007).
Mays faults Hegney for failing to apply Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) expressly in deciding whether the constitutional right of confrontation applies to juvenile decline hearings. But Hegney's approach is sensible because Crawford concerns the type of evidence that is subject to the confrontation rule, not the type of hearing at which the rule applies.
Mays alternatively asks this court to reinterpret the juvenile justice act to hold that the limited statutory right to confrontation for juvenile disposition proceedings in RCW 13.40.150 applies to juvenile decline hearings under RCW 13.40.110. But this approach would contradict the plain language of the statute. Mays' arguments in this regard must be made to the legislature.
As a third alternative, while acknowledging that long-standing authority from our State Supreme Court holds otherwise, Mays contends that recent developments in the law of due process as applied in the settings of probation Page 5 and parole hearings, sex predator civil commitment, and other non-juvenile matters, justify reconsidering the rule that due process allows consideration of hearsay at juvenile decline hearings. But we are bound by the Supreme Court's due process analysis in this setting. Moreover, we note that none of the cases Mays cites is analogous for the same reason cited by our State Supreme Court in rejecting this claim in 1975, which is that a juvenile decline hearing does not result in a final determination that directly results in confinement.
See In re Harbert, 85 Wn.2d 719, 726-27, 538 P.2d 1212 (1975) (holding that hearsay was admissible at decline hearing, that "[t]he Sixth Amendment right to confrontation does not apply in this kind of hearing," and that due process was satisfied by the opportunity to inspect the report prior to the hearing and to obtain controverting evidence or witnesses); State v. Piche, 74 Wn.2d 9, 14, 442 P.2d 632 (1968), rev'd on other grounds, McRae v. State, 88 Wn.2d 307, 310, 559 P.2d 563 (1977).
State v. Abd-Rahmaan, 154 Wn.2d 280, 286, 111 P.3d 1157 (2005); State v. Dahl, 139 Wn.2d 678, 688, 990 P.2d 396 (1999).
Specht v. Patterson, 386 U.S. 605, 609-10, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967); In re Pers. Restraint of Young, 122 Wn.2d 1, 45, 857 P.2d 989 (1993); but see In re Det. of Stout, 159 Wn.2d 357, 369, 374, 150 P.3d 86 (2007) ("an SVP [(sexually violent predator)] detainee does not have a due process right to confront a live witness at a commitment trial").
Vitek v. Jones, 445 U.S. 480, 565-67, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980); Mansour v. King County, 131 Wn. App. 255, 269, 128 P.3d 1241 (2006).
State v. Gore, 101 Wn.2d 481, 681 P.2d 227 (1984). We accordingly decline Mays' request to conduct our own analysis of the issue under the principles of Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). For this reason it is also unnecessary to address the State's alternative argument, based on RAP 2.5, that we should not consider the claims because Mays did not raise his due process or confrontation objections in the trial court and only objected on hearsay grounds to a small portion of the evidence at the decline hearing.
See Harbert, 85 Wn.2d at 725 (quoting Piche, 74 Wn.2d at 14).
Mays next contends that the court abused its discretion in ordering the decline of juvenile jurisdiction. Again, we disagree. We will only reverse a juvenile court's decision declining jurisdiction if the court abused its discretion. A court abuses its discretion when it relies on untenable or manifestly unreasonable grounds. In determining whether to decline jurisdiction, a Washington juvenile court must consider eight factors originally set forth in Kent v. United States.
State v. M.A., 106 Wn. App. 493, 498, 23 P.3d 508 (2001).
M.A., 106 Wn. App. at 498.
383 U.S. 541, 86 S. Ct. 1045, 16 L. Ed. 2d 84 (1966). These factors, summarized, are "(1) the seriousness of the alleged offense and whether the protection of the community requires declination; (2) whether the offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against persons or only property; (4) the prosecutive merit of the complaint; (5) the desirability of trial and disposition of the entire case in one court, where the defendant's alleged accomplices are adults; (6) the sophistication and maturity of the juvenile; (7) the juvenile's criminal history; and (8) the prospects for adequate protection of the public and rehabilitation of the juvenile through services available in the juvenile system." State v. Furman, 122 Wn.2d 440, 447, 858 P.2d 1092 (1993).
We examine the entire record, including the court's oral opinion, to determine the sufficiency of the court's reasons for declination. While not all eight Kent factors must be proved in order to justify declination, the juvenile court's failure to give appropriate consideration to the factors is an abuse of discretion. The trial court here concluded that the first four and last two factors favored decline and factors five and six were essentially neutral. Considering all the factors, the court concluded declination was appropriate. We find no abuse of discretion in the court's analysis.
State v. Holland, 98 Wn.2d 507, 517-18, 656 P.2d 1056 (1983).
Furman, 122 Wn.2d at 447.
Stevenson, 55 Wn. App. at 736; State v. Toomey, 38 Wn. App. 831, 834, 690 P.2d 1175 (1984).
Mays does not challenge the trial court's findings as to the first four factors, which the court found all clearly favored decline. Mays contends the court erred in regard to the fifth factor because it viewed this factor as encompassing both the interest of judicial economy served by a possible joint trial and the fundamental fairness of avoiding unreasonably disparate treatment of juvenile and adult co-defendants. The trial court reasoned that the concern for judicial economy was a neutral consideration, because evidence of statements by the co-defendants raised the possibility that the defendants would be tried separately if all were tried in adult court. Concern for fundamental fairness favored decline, since otherwise the 18-year-old and 16-year-old co-defendants could receive a vastly disproportionate sentence to Mays, who planned the crime and was equally culpable.
The record amply supports these findings. Mays nonetheless contends that this list of factors should be modified in favor of a formulation contained in a federal statute, Title 18 U.S.C. sec. 5032. He argues the Kent formulation results in an unfair triple counting of the first three factors and erroneously includes the fourth factor. We are bound, however, to follow our Supreme Court's express directive to apply the eight Kent factors. See Holland, 98 Wn.2d at 515 n. 2.
In reply, Mays takes vigorous exception to the State's characterization of his role in the events, contending that the trial court rejected the State's position that Mays was a mastermind. But it is the trial court's view, not the State's, that matters. At sentencing, the court concluded that while the criminal plan was not sophisticated and Mays was no "Svengali" or "Fagin" who coerced the others into participating, nonetheless "what plan existed was Austin Mays'." This is consistent with the court's view at the decline hearing that "for the most part, the leader of the three was Austin." The court's balanced view was amply supported by not only the circumstances of the crime, but by evidence that Boone was impressed by Mays and believed him 17 years old, and that Rothermel repeatedly asked to talk to Mays before speaking to police. Mays' repetition of his counsel's reply argument in his pro se statement of grounds for additional review is likewise without merit. We also reject Mays' other pro se complaint, that his probation officer did not personally interview him before the decline hearing, because the record shows the reason was that Mays asserted his right to remain silent.
Mays contends that considering the potential of disparate treatment is contrary to the automatic decline statute, RCW 13.04.030, which establishes a presumptive difference between a 15-year-old who is alleged to have committed a serious violent offense and an older juvenile for whom the decline of jurisdiction is automatic. But nothing in Kent or the Washington cases applying it supports limiting this factor to concerns for judicial economy alone. And construing the automatic decline statute as Mays advocates would effectively disallow considering this factor even if it were limited to concern for judicial economy. We are satisfied that, if the legislature had intended to limit the application of this factor the way Mays claims over the decades since our State Supreme Court mandated use of the Kent factors, it would have said so expressly.
See State v. Williams, 75 Wn.2d 604, 606-07, 453 P.2d 418 (1969); Furman, 122 Wn.2d at 447; Holland, 98 Wn.2d at 515 n. 2; State v. Jamison, 25 Wn. App. 68, 74, 604 P.2d 1017 (1979), aff'd, 94 Wn.2d 663, 619 (1980).
Mays also challenges the court's findings regarding the sixth, seventh and eighth factors together, contending that the trial court's analysis gave too little weight to the opinion of the defense expert, Dr. Delton Young. Dr. Young opined that Mays was unsophisticated, that the juvenile system still could rehabilitate him despite his prior adjudications and dispositions, and that the prospects for protecting the public were good if Mays was retained in the juvenile system.
Contrary to Mays' contention, the trial court did not "shutter" itself from this evidence, disregard recent scientific studies, or ignore the undeniably difficult circumstances of Mays' childhood and early teen years. Rather, the court carefully considered the entirety of Dr. Young's report, agreed with much of it, and found it partially persuasive as to the sixth factor. The court, however, simply disagreed with Dr. Young's ultimate opinion that Mays could be rehabilitated within the five and one-half years available in the juvenile system. Given the balance of the evidence produced over the course of the decline hearing, including evidence of the programs provided to Mays during his earlier adjudications and commitments, this determination was entirely within the court's prerogative as finder of fact.
Mays' criminal history included additional offenses beyond those discussed above. The trial court found that, while Mays' history was not the worst the court had ever seen, Mays had gone through much of what juvenile court already had to offer at each level of deferral, detention, probation, and commitment to the JRA including juvenile "boot camp," before the present offense. Clerk's Papers at 1710-1711.
H.O., 119 Wn. App. at 560.
We find neither error of law nor abuse of discretion on the part of the trial court in determining that declining juvenile jurisdiction in Mays' case was in the best interests of the public. Accordingly, we affirm.
It is therefore unnecessary to address the parties' dispute over the proper remedy to employ if we concluded that the decline order was invalid.