In the Matter of H.N.
Court of Appeals of Kansas.
*822 Catherine A. Zigtema, of Maughan & Maughan, LC, of Wichita, for appellant.
Matt J. Maloney, assistant district attorney, Nola Tedesco Foulston, district attorney, *823 and Derek Schmidt, attorney general, for appellee.
Before MALONE, P.J., PIERRON and ARNOLD-BURGER, JJ.
MALONE, J.
In In re D.E.R.,
Since the opinion in In re D.E.R. was filed on March 19, 2010, the Kansas Legislature has taken no action to provide a statutory mechanism to satisfy a juvenile respondent's constitutional right to have a judicial determination of probable cause as a prerequisite to an extended restraint of liberty. Kansas district judges have been forced to address the issue of how to properly conduct "a judicial determination of probable cause" in proceedings under the KJJC, with the only guidance being that such a determination need not be accompanied by the full panoply of adversary safeguards.
In the case before us, H.N. was charged as a juvenile with acts that would have constituted one count of felony burglary and two counts of misdemeanor theft if they had been committed by an adult. H.N. was subjected to pretrial detention and he requested a probable cause determination through a preliminary hearing similar to the hearings required by the adult criminal code. The district court granted the motion for determination of probable cause, but denied the request for a full adversarial preliminary hearing. Instead, the district court conducted a hearing at which H.N. was present with counsel, and the district court determined probable cause based on a sworn affidavit submitted by the State. The district court also allowed H.N. to present evidence at the hearing on the issue of probable cause, but H.N. declined to present any evidence. For the reasons set forth herein, we conclude the procedure used by the district court satisfied H.N.'s constitutional right to a judicial determination of probable cause.
FACTS
On February 26, 2010, the State charged 17-year-old H.N. with acts that, if committed by an adult, would have constituted one felony count of burglary of a motor vehicle and two counts of misdemeanor theft. The same day, the district court held a detention hearing, appointed counsel for H.N., and ordered that H.N. be detained in a juvenile detention facility. H.N.'s trial was originally scheduled for March 17, 2010, but the trial was continued several times. Some of the continuances were at H.N.'s request.
On March 11, 2010, H.N. filed a motion for the district court to hold a preliminary hearing to establish probable cause that H.N. committed a felony. The motion argued that juvenile adjudications are sufficiently similar to adult criminal prosecutions such that juvenile respondents should be afforded a right to a preliminary examination. On May 12, 2010, H.N. filed a motion to dismiss for lack of probable cause or, in the alternative, for a probable cause determination. Citing In re D.E.R., H.N. argued he had a constitutional right to a probable cause determination because his liberty was restricted.
The district court held a hearing on the motions on July 6, 2010. H.N. was present at the hearing with counsel. At the hearing, H.N. argued that a probable cause determination in a juvenile adjudication should be made in the manner in which a preliminary hearing is conducted in an adult criminal proceeding. The State argued that the right to a preliminary hearing in an adult criminal proceeding is a statutory right, and there is no similar statute in the KJJC. While agreeing that H.N. had a right to a probable cause *824 finding, the State recommended that the finding be made based on a sworn affidavit. The district court overruled H.N.'s motion to dismiss and the motion to conduct a full adversarial preliminary hearing pursuant to the adult criminal code. The district court found that a full hearing was not required by statute and that it was the role of the legislature to create a mechanism for a juvenile preliminary hearing if it is required.
The district court then proceeded with the probable cause determination. The State offered as an exhibit a sworn probable cause affidavit. H.N. objected to the affidavit on several grounds, including the fact that the affidavit contained hearsay and it violated his right to confront witnesses under the Sixth Amendment to the United States Constitution. The district court overruled the objections, and the district court accepted and reviewed the affidavit. The affidavit was signed by Detective James Grayson of the Valley Center Police Department. According to the affidavit, the principal of the Valley Center High School witnessed H.N. break into a vehicle in the high school parking lot and remove currency from the vehicle. The affidavit also stated that upon being interviewed and receiving his Miranda rights, H.N. admitted to committing the offenses and said he was sorry. After reviewing the affidavit, the district court asked H.N.'s attorney if H.N. wanted to present any evidence with regard to the probable cause determination. In fact, the judge stated, "I'm permitting you to present any evidence you want." H.N. declined to present any evidence at the hearing. At the conclusion of the hearing, the district court found there was probable cause to believe that H.N. committed the acts in question. Specifically, the district court ruled:
"Having heard the arguments of Counsel and permitted both sides to present any evidence, and any argument with regard to the issue of probable cause, I will find, based on this sworn to affidavit, that one, I do believe there's probable cause to believe the offenses of Burglary and two charges of Theft have been committed, and I will make the determination that there is probable cause to believe that ... [H.N.] is the individual who committed those offenses."
On July 30, 2010, the district court held a trial based on stipulated facts and found that H.N. had committed the charged acts. On August 19, 2010, the district court sentenced H.N. to 9 months' commitment in a juvenile correctional facility and 12 months' aftercare. H.N. timely appealed.
ANALYSIS
On appeal, H.N. argues that the district court erred in denying his request for a full adversarial preliminary hearing similar to the hearings required by the adult criminal code. H.N. also argues that the district court erred by considering the affidavit of probable cause because it contained hearsay evidence and the use of the affidavit violated his constitutional rights to due process and confrontation. Finally, H.N. argues that dismissal of the charges is warranted because the district court failed to timely hold the probable cause hearing.
H.N.'s arguments involve interpretation of the KJJC, and interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Arnett,
Was H.N. entitled to receive a full adversarial probable cause hearing?
H.N. first argues that he was entitled to receive a full adversarial hearing to determine probable cause to detain him. The State responds that a full adversarial hearing was not required under the constitution or any statute. Both arguments draw from the recent Kansas Supreme Court opinion in In re D.E.R. In that case, a juvenile was arrested and charged with three offenses, one of which would have constituted a felony had it been committed by an adult. After the charges were filed, the juvenile respondent requested a preliminary hearing under K.S.A. 22-2902 on the "`felony charge,'" arguing that he was entitled to such a hearing under the reasoning of In re L.M.,
The Kansas Supreme Court began its analysis by examining K.S.A. 22-2902, the statute in the adult criminal code that provides for a preliminary examination. The court detailed the procedure mandated by the statute, including timing of a preliminary hearing, and whether the defendant has a right to be present.
Regarding the language in the adult criminal code, our Supreme Court stated: "K.S.A. 22-2902(1) mandates that `[t]he state and every person charged with a felony shall have a right to a preliminary examination before a magistrate, unless such charge has been issued as a result of an indictment by a grand jury.'"
The court then addressed the juvenile respondent's constitutional arguments, noting that much of the confusion stemmed from a misreading of In re L.M. The court observed that although some had interpreted In re L.M. to stand for the proposition that juvenile adjudications must employ the same statutory procedures as adult criminal prosecutions, the court clarified that "[a]t most, In re L.M.'s equating of juvenile proceedings and criminal prosecutions would support the proposition that juveniles are entitled to all of the constitutional rights which adult criminal defendants possess, not that juvenile proceedings must look exactly the same as a criminal prosecution."
Rather than ending its analysis there, the court cited with approval an 8th Circuit Court of Appeals opinion in R.W.T. v. Dalton,
H.N. argues that the probable cause determination required to justify pretrial detention of a juvenile must occur in the context of a full adversarial hearing. H.N. contends that because preliminary hearings were required to determine probable cause at common law, the means by which probable cause to detain a juvenile is determined must be similar to a preliminary hearing required by the adult criminal code. To support this argument, H.N. cites In re P.R.G.,
On appeal, this court found that under the common law an arrest warrant must be executed without unreasonable delay and the legislature never abolished the common-law rule by statute. Accordingly, the court held that the common-law rule that an arrest warrant must be executed without unreasonable delay is applicable to proceedings under the KJJC, even in the absence of a statutory provision.
H.N. also cites Gerstein v. Pugh,
To bolster his contention that an adversarial hearing is necessary to determine probable cause, H.N. points to language in Gerstein that recognized the wide variety in state systems of criminal procedure for determining probable cause. However, in noting the disparity of procedure among the different states, the Gerstein Court stated there was no single preferred pretrial procedure for determining probable cause, and continued: "Whatever procedure a State may adopt, it must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest."
H.N. also cites dicta in In re D.E.R. in which the Kansas Supreme Court noted a footnote in Dalton that "suggests an actual hearing is required" to determine probable cause. See In re D.E.R.,
Here, the judicial determination that there was probable cause to detain H.N. was made by a district judge at a hearing, albeit not a full adversarial hearing. H.N. was present at the hearing with counsel. H.N. ignores the fact that the district court gave him an opportunity to present evidence at the hearing. The United States Supreme Court has expressly stated that adversary safeguards are not essential for the probable cause determination required by the Fourth Amendment. Gerstein,
In a separate section of his brief, H.N. argues that In re D.E.R. was wrongly decided because the Kansas Supreme Court failed to provide sufficient due process protections to juvenile offenders. However, this court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its earlier position. State v. Merrills,
Did the district court err by considering the affidavit?
Next, H.N. argues that the district court erred by considering the affidavit of probable cause at the hearing. H.N. contends the district court considered the affidavit, which contained hearsay, without any statutory authority to do so. H.N. further argues that consideration of the affidavit violated his constitutional rights to due process and confrontation.
At the probable cause hearing on July 6, 2010, the State introduced as an exhibit an affidavit to show probable cause. Entitled "Probable Cause Affidavit," the 2-page document contained the sworn statement of Detective Grayson who investigated the events that led to H.N.'s arrest. The affidavit contained statements allegedly made to Grayson by people he contacted during his investigation, including the principal of the Valley Center High School. H.N. argues, and the State concedes, that the affidavit constituted hearsay evidence.
H.N. points to K.S.A. 2010 Supp. 38-2354, which provides that "[i]n all hearings pursuant to the code, the rules of evidence of the code of civil procedure shall apply. The presiding judge shall not consider, read or rely upon any report not properly admitted according to the rules of evidence." Furthermore, pursuant to K.S.A. 2010 Supp. 60-460(b): "[E]vidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except: ... Affidavits, to the extent admissible by the statutes of this state." (Emphasis added.)
H.N. asserts that under these statutes, an affidavit containing hearsay is not admissible in a hearing under the KJJC unless it is authorized by a specific statute. H.N. points out that there is no statutory provision that allows for hearsay contained within an affidavit to be admissible under the KJJC. Thus, H.N. argues that the affidavit was inadmissible hearsay and should not have been read, considered, or relied upon by the district court at his probable cause hearing.
The State responds by citing State v. Cremer,
The State's reliance on Cremer is misplaced. Although the Kansas Supreme Court affirmed this court's ultimate holding, it stated that "the Court of Appeals was in error in this case in holding that the court which conducted the preliminary hearing of the defendant was not required to apply the rules of evidence pertaining to hearsay evidence." State v. Cremer,
Cremer was concerned with the admissibility of hearsay evidence in a preliminary hearing held under K.S.A. 22-2902. The applicability of the court's holding to juvenile proceedings is, at best, questionable. In In re D.E.R., our Supreme Court stated that juvenile proceedings need not look exactly the same as a criminal prosecution.
As detailed above, the constitutional requirements for a pretrial probable cause determination do not mandate the full panoply of adversarial safeguards. Gerstein,
"In determining whether probable cause exists to support a search warrant, the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of any person supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." State v. Hicks,282 Kan. 599 , Syl. ¶ 1,147 P.3d 1076 (2006).
This test is adopted from Illinois v. Gates,
As this court in Cremer stated:
"A preliminary examination, like the inquiry made by a magistrate before issuing an arrest or search warrant, is concerned with probabilitiesnot guilt. Hearsay statements in an affidavit may be relied upon in issuing a search or arrest warrant so long as the affidavit includes sufficient affirmative allegations of fact as to the affiant's personal knowledge to allow the magistrate to rationally reach an independent decision. State v. Marks,231 Kan. 645 , 647,647 P.2d 1292 (1982). We conclude that a similar rule is still appropriate for preliminary examinations."8 Kan. App.2d at 702 ,666 P.2d 1200 .
Although our Supreme Court disagreed with the allowance of hearsay statements based on the historic relaxation of evidentiary rules at preliminary hearings, stating that changes in the law and legal system no longer warranted such relaxation, it holds true that a probable cause determination is not a determination of guilt; it is a determination of probabilities. Therefore, in light of the Supreme Court's instruction in In re D.E.R. that juvenile proceedings need not mirror criminal prosecutions and the lack of legislative directive on the correct procedures and evidentiary rules for juvenile probable cause determinations, we conclude the district court did not err by considering the affidavit to determine probable cause, even though the affidavit contained hearsay.
H.N. also argues that the district court violated his constitutional rights to due process and confrontation of witnesses by considering the affidavit of probable cause. He relies on State v. Yura,
As we have already discussed, the Gerstein Court determined that adversary safeguards, including the right of confrontation and cross-examination of witnesses, are not essential for the type of probable cause determination required by the Fourth Amendment.
H.N. fails to explain how, in light of both the Kansas and United States Supreme Court's conclusions that probable cause determinations do not necessarily trigger the right to confrontation absent explicit state statutory requirements, he was entitled to such protections. H.N.'s reliance on Yura is misplaced. Therefore, we conclude the district court did not violate H.N.'s due process or confrontation rights by determining probable cause based on the affidavit.
Did the district court fail to timely hold the probable cause hearing?
Next, H.N. argues that dismissal of the charges is warranted because the district court failed to timely hold a probable cause hearing. H.N. devotes less than one page of his brief to this argument. We note that H.N. did not raise this specific argument in district court. Although H.N. filed a motion to dismiss the charges in district court for lack of a probable cause determination, H.N. never complained about the amount of time that elapsed in district court before the probable cause hearing was held. Generally, issues not raised before the district court cannot be raised on appeal. State v. Warledo,
We will briefly consider this argument in the interest of justice. See State v. Dukes,
We recognize that a probable cause determination in a juvenile proceeding should be made within a reasonable time of any pretrial detention. See In re D.E.R.,
CONCLUSION
In In re D.E.R., the Kansas Supreme Court mandated that in proceedings under the KJJC, a juvenile respondent possesses the constitutional right to have a judicial determination of probable cause as a prerequisite to an extended restraint of liberty.
Although this opinion may help guide the district courts in conducting probable cause determinations in proceedings under the KJJC, many questions will remain unanswered until the legislature addresses this issue. The KJJC should be amended to provide a statutory mechanism for district courts to make a judicial determination of probable cause in cases involving pretrial detention of juveniles. The legislature should address when a probable cause hearing must be held, whether affidavits or other hearsay evidence can be considered by the district court, and whether the district court must allow the juvenile respondent to present additional evidence at the hearing. We remind the Kansas Legislature that it has been over 1 year since In re D.E.R. was decided. The district courts of Kansas are awaiting legislative action to address this constitutional mandate.
Affirmed.