STATE of South Dakota, Plaintiff and Appellee, v. Ryan Russell HARRIS, Defendant and Appellant.
No. 17834.
Supreme Court of South Dakota.
Decided Jan. 6, 1993.
494 N.W.2d 619
Argued Oct. 7, 1992.
From the jacket of “Roots,” supra, I wish to quote:
When he was a boy in Henning, Tennessee, Alex Haley‘s grandmother used to tell him stories about their family-stories that went back to her grandparents, and their grandparents, down through the generations all the way to a man she called “the African.” She said he had lived across the ocean near what he called the “Kamby Bolongo” and had been out in the forest one day chopping wood to make a drum when he was set upon by four men, beaten, chained and dragged aboard a slave ship bound for Colonial America.
Still vividly remembering the stories after he grew up and became a writer, Haley began to search for documentation that might authenticate the narrative. It took ten years and a half a million miles of travel across three continents to find it, but finally, in an astonishing feat of genealogical detective work, he discovered not only the name of “the African“-Kunta Kinte-but the precise location of Juffure, the very village in The Gambia, West Africa, from which he was abducted in 1767 at the age of sixteen and taken on the Lord Ligonier to Maryland and sold to a Virginia planter.
Haley has talked in Juffure with his own African sixth cousins. On September 29, 1967, he stood on the dock in Annapolis where his great-great-great-great-grandfather was taken ashore on September 29, 1767. Now he has written the monumental two-century drama of Kunta Kinte and the six generations who came after him-slaves and freedmen, farmers and blacksmiths, lumber mill workers and Pullman porters, lawyers and architects-and one author.
But Haley has done more than recapture the history of his own family. As the first black American writer to trace his origins back to their roots, he has told the story of 25,000,000 Americans of African descent. He has rediscovered for an entire people a rich cultural heritage that slavery took away from them, along with their names and their identities.
But Roots speaks, finally, not just to blacks, or to whites, but to all peoples and all races everywhere, for the story it tells is one of the most eloquent testimonials ever written to the indomitability of the human spirit.
Mahatma Gandhi, the great Indian philosopher, pacifist, and freedom lover once said: “Life is pain.” Here, life and family roots are uncalled-for pain.
No legal or familial quest is born in luxury; it is born in discomfiture or outrage and often in suffering because of an actual or perceived wrong. A great society is, in my opinion, birthed in pain. So it was with America. Land of the free?
Daniel E. Ashmore and Talbott J. Wieczorek of Gunderson, Palmer, Goodsell & Nelson, Rapid City, for defendant and appellant.
MILLER, Chief Justice.
Ryan Russell Harris (Harris) appeals to this court asserting that the trial court
Sometime before September 11, 1991, Harris began talking to a friend about a plan to carry a gun into his math class and take the students hostage. On his seventeenth birthday, September 10, 1991, he mentioned this same plan to another friend and gave all of the money he had received for his birthday, as well as half of his paycheck, to various of his friends. He also wrote a will and a brief note of apology to his brother for his actions.
The next day, September 11, Harris arrived a few minutes late to his math class at Stevens Senior High School, Rapid City, South Dakota. Harris pulled out a sawed-off shotgun from under the long overcoat he was wearing, made the teacher leave the room and took the class hostage. When asked whether he was joking, Harris said he was not and fired a shot at one of the walls. Although Harris generally gave a warning before shooting, he was careless with the gun, waving it around the room causing the students to duck. During the next several hours, Harris fired shots into walls, overhead projectors (one of which exploded, stinging people with shards of glass) and the classroom intercom.
At one point, one of the students was sitting with her face toward her desk, her hands shaking. Harris walked up to her, pointed his shotgun at her, yelled “Boom” and walked away. When one of the students indicated that she needed to use the bathroom, Harris told her she could go. Part of his response to her question of whether he wanted her to come back was “No, I am going to shoot you in the back on the way out.” She backed out of the room. A common student response to the hostage crisis was “I was scared out of my mind.” Others said they thought “he would have shot an adult a lot more readily than a student.” In a phone conversation with a police negotiator, Harris threatened to “blow heads off.” At some point, Harris stepped into the hall and dared the police officers to shoot him.
Several hours after the students were taken hostage, cigarettes were delivered to the classroom. While students were crowded around the desk to have Harris light the cigarettes, one of the students, Chris Ericks, grabbed the shotgun from the desk. Ericks told the students to leave and they ran out of the room. Harris, begging Ericks to shoot and kill him, advanced toward Ericks and continued to advance until Ericks finally backed out the door with the shotgun. The police then apprehended Harris.
The next day, September 12, while at the detention center, Harris read the charges against him and commented: “That‘s all they‘re charging me with? Next time I‘ll have to do better than that.” On September 13, the Pennington County State‘s Attorney‘s Office filed a forty-seven-count petition in the juvenile division of the Seventh Judicial Circuit alleging the delinquency of Harris.1 Harris had previously come into contact with the juvenile system six months prior to this hostage situation as a result of a tire-slashing incident in March, 1991. Also, on September 12, State filed a motion to transfer the proceedings from juvenile court to adult court. Transfer hearings were held in November. On December 20, 1991, the circuit court judge granted State‘s motion to transfer the proceedings from juvenile court to adult court for adult criminal proceedings.
On January 6, 1992, the Pennington County State‘s Attorney signed a criminal complaint and information against Harris alleging commission of the same offenses contained in the earlier juvenile petition. An amended information was filed later that day which alleged only one count of kidnapping, three counts of aggravated as-
Harris asserts on appeal that the court erred when it transferred his proceedings from juvenile court to adult court. Harris first asserts that there is a conflict in the juvenile statutes as to which standard the court is to use at the transfer hearing and that the court erred when it considered the interests of the child and the public during a transfer hearing held pursuant to
A.
WHETHER A COURT HOLDING A TRANSFER HEARING PURSUANT TO SDCL 26-11-4 IS TO CONSIDER THE INTERESTS OF THE PUBLIC OR ONLY THE INTERESTS OF THE CHILD.
We apply the clearly erroneous standard of review as to the trial court‘s factual determinations. State v. Brings Plenty, 459 N.W.2d 390, 399 (S.D. 1990). We will not overturn the trial court unless the findings are against the weight of the evidence. Id. “The construction of a statute is a question of law.” Vellinga v. Vellinga, 442 N.W.2d 472, 473 (S.D. 1989). Conclusions of law are reviewed de novo. Rusch v. Kauker, 479 N.W.2d 496, 499 (S.D. 1991).
We look to the rules of statutory construction for guidance as to a statute‘s interpretation.
Each statute must be construed according to its manifest intent as derived from the statute as a whole, as well as other enactments relating to the same subject. Words used by the legislature are presumed to convey their ordinary, popular meaning, unless the context or the legislature‘s apparent intention justifies departure. Where conflicting statutes appear, it is the responsibility of the court to give reasonable construction to both, and to give effect, if possible, to all provisions under consideration, construing them together to make them harmonious and workable. However, terms of a statute relating to a particular subject will prevail over general terms of another statute. Finally, we must assume that the legislature, in enacting a provision, had in mind previously enacted statues (sic) relating to the same subject.
Meyerink v. Northwestern Public Service Co., 391 N.W.2d 180, 183-84 (S.D. 1986) (citations omitted). If this court determines that the statutes do conflict, “the more recent enactment is controlling.” In re Estate of Smith, 401 N.W.2d 736, 740 (S.D. 1987); Kneip v. Herseth, 87 S.D. 642, 214 N.W.2d 93 (1974). We determine that there is no conflict in these juvenile statutes.
A forty-seven felony count petition was initially filed in the juvenile division of the Seventh Judicial Circuit alleging the
At the transfer hearing, the court shall consider only whether it would be contrary to the best interest of the child OR of the public to retain jurisdiction over the child. (Emphasis added.)
Harris contends that at the transfer hearing the court should have followed
Proceedings under this chapter [26-7A] and chapters 26-8A, 26-8B and 26-8C shall be in the interests of the child.
The juvenile laws were rewritten by the legislature in 1991. Harris finds great significance in the fact that the prior
Provisions of this chapter [26-7A] and chapters 26-8A, 26-8B, and 26-8C shall be liberally construed in favor of the child, the child‘s parents and the state....
It cannot be imagined that the legislature, in rewriting the juvenile laws in 1991, intended that the interests of the child only would be considered.
Harris calls our attention to the fact that in response to the Rapid City Journal‘s request to the trial court to open all of Harris’ juvenile hearings pursuant to
Finally, we note that our rules of statutory construction lead to the conclusion that the consideration of interests at this specific type of hearing (transfer) will prevail over considerations more generally applicable to juvenile proceedings. Meyerink, 391 N.W.2d at 184. The court did not err when it considered the interests of the state in its conduct of the transfer hearing. State v. Lohnes, 324 N.W.2d 409 (S.D.), cert. denied, 459 U.S. 1226 (1983), overruled on other grounds by State v. Waff, 373 N.W.2d 18, 22 (S.D. 1985);
B.
WHETHER THE COURT CORRECTLY CONCLUDED THAT HARRIS’ PROCEEDINGS SHOULD BE TRANSFERRED.
“A transfer hearing is a ‘critically important’ action determining vitally important statutory rights of the juvenile[.]”
In re L.V.A., 248 N.W.2d 864, 867 (S.D. 1977);
Neither our cases nor the transfer statute give controlling consideration to the interests of the child over the interests of the state, or conversely, the interests of the state over the interests of the child. Nor, by the plain language of the statute, is the trial court required to consider both of these interests at the transfer hearing.
In L.V.A., we outlined numerous factors to be taken into consideration at the transfer hearing, although they were “not intended to be an exclusive list.” Id. at 869. Many of these factors were subsequently codified at
(7) The prospect for adequate protection of the public and the likelihood of reasonable rehabilitation of the juvenile, if he is found to have committed the alleged offense, by the use of procedures, services and facilities currently available to the juvenile court.
We have explained that by listing these factors, we did not intend
to reduce the discretion of the trial judge in transfer hearings, nor was it the intention to create a rigid or cumbersome procedure to be followed by the trial courts in all cases. It is not necessary that evidence be presented on all of these factors at each transfer hearing, or that the trial court must make express findings on each factor.
A court is not required to consider every one of the listed factors nor is it confined to a consideration of only the listed factors to the exclusion of others.
Harris asserts the transfer court‘s finding that Harris “is a serious risk to the public safety at large,” is clearly erroneous. “The court may consider evidence which would show that confinement and security of the juvenile are necessary for the continuing protection of the public[.]” L.V.A., 248 N.W.2d at 869;
The time spent in psychiatric treatment can be a very high-risk time with a heightened suicidal potential. Dr. Rewey testified that he was concerned that Harris would act out in the future, though he didn‘t see necessarily another hostage situation occurring. We note there was some testimony that Harris did not present a threat to others. But in the absence of the intensive in-patient psychotherapy recommend by Dr. Rewey, and in light of the inherent uncertainty of successful treatment, the court was not clearly erroneous in finding that Harris was a present and future risk to the public.
Harris asserts the court‘s “Conclusion of Law V,” that “there is not a likelihood of reasonable rehabilitation of [Harris] ... by the use of the procedures, services, and facilities currently available in juvenile court,” is clearly erroneous and against the weight of the evidence. Harris supports his position with several arguments.
Harris cites this court to a number of our previous decisions wherein we noted the child‘s exhaustion of the juvenile system‘s programs without rehabilitative success and concluded that a transfer to adult court was appropriate. See Flying Horse, 455 N.W.2d 605; Petition of Nilles, 412 N.W.2d 116 (S.D. 1987); Lohnes, 324 N.W.2d 409; State v. Culton, 273 N.W.2d 200 (S.D. 1979); State v. Rurup, 272 N.W.2d 821 (S.D. 1978); D.M.L., 254 N.W.2d 457. Harris appears to argue that it is required that the programs in the juvenile system be exhausted without rehabilitative success before a transfer court can conclude that a particular juvenile is not likely to be rehabilitated by the juvenile justice system. Therefore, as his previous associations with the juvenile system have been minimal (his single previous contact having been for a property offense arising out of a tire-slashing incident six months prior to these events) he has not exhausted the juvenile system‘s rehabilitation programs and could not properly be transferred to adult court. In this, Harris is in error. In the cases cited, the individuals were repeat child offenders. Nevertheless, the failure of the juveniles to rehabilitate, despite exhausting the programs in the juvenile justice system, was merely a consideration in the decision to transfer jurisdiction from juvenile court to adult court. Neither the statute nor our decisions have required the court to find that the juvenile unsuccessfully exhausted the resources of this state‘s juvenile justice rehabilitation programs prior to transferring proceedings to adult court. Nor do we make such a requirement now.
Harris asserts that the court is clearly erroneous in finding that Harris’ “condition would be treatable in only the most ideal of the prognostic situations” and in finding that “the extent of the severity of said psychological trauma is such that the long term effects on Harris are currently unknown and cannot be assessed with any known certainty.” We find there is substantial support in the record for these findings.
Based on the testimony of Dr. Rewey, the court found that Harris has significant and possibly severe mental “issues” that
Nevertheless, Harris’ problems extend beyond his potential threat to society as his problems are also personal. Harris shows a strong disinclination to return to his family. Dr. Rewey was of the opinion that a return home was not a viable option for Harris and that Harris’ propensity for further aggressive and violent behavior will markedly diminish if Harris is out of his family situation. Harris has a gap in his memory of family life before the age of twelve. Harris’ home life, the source of much of his anger, has not been good. Harris’ previously excellent attitude towards school and authority has deteriorated beyond that which is normal for someone his age. All of these problems need to be addressed in Harris’ treatment. In response to a statement from the court, Dr. Rewey said Harris’ depression could continue until he was thirty or forty years old. In fact, this was usual and it would require medications to effectively control his depression.
Harris next asserts that the court is clearly erroneous in finding that “an out-of-state medium security facility or other residential treatment center is a possibility, but that such a placement would be highly unusual and would be limited by the alternative care funding, which funding has been predominantly insufficient for the realistic consideration of such a placement.” The court may consider the “procedures, services and facilities currently available.”
The court also found that “there is limited psychological treatment available at the Human Services Center for the necessary treatment of Harris.” There was testimony that stays at the Human Services Center range from about thirty days to close to a year. It does not appear from the record that anyone stays for four years at the Human Services Center behavioral unit. When we consider that Dr. Rewey‘s most optimistic outlook was that Harris’ suicidal tendencies and his potential threat to society could probably be treated in four years, but that underlying problems could extend much longer, the court was not clearly erroneous.
Harris next asserts that the court is clearly erroneous in finding that neither the Youth Forestry Camp nor the State Training School are “capable at this time by their methodology or treatment and rehabilitation to handle Harris with the diagnosis that Dr. Rewey has provided.” It was Dr. Rewey‘s opinion that wherever Harris was placed, the facility needed “a sufficient[ly] comprehensive ability on the
Dr. Rewey testified that Harris could probably attend the programs at the State Training School and Youth Forestry Camp and complete them successfully. But he also said that the programs available in these facilities were not directly suited to Harris’ needs. Neither of the programs are currently designed to be long term6 and both stress interaction with parents. Dr. Rewey testified that he could not recommend that Harris have involvement with his family during treatment. In fact, any reduction in Harris’ danger to himself or others was attributed to the fact that he was no longer living in his family. The Youth Forestry Camp director stated that he was not comfortable taking Harris into his program at the present time.7 We note that the court also found that it was possible that these institutions would be able to help Harris in the future. There is substantial evidence in the record to support this finding.
In summary, there is substantial evidence in the record to support the court‘s findings and reasons for transfer. L.V.A., 248 N.W.2d at 870;
Affirmed.
WUEST, SABERS and AMUNDSON, JJ., concur.
HENDERSON, J., concurs in part and dissents in part.
HENDERSON, Justice (concurring in part; dissenting in part).
Essentially, I agree with the majority opinion on the merits-but cannot agree to affirm the sentence. I maintain a serious error in law exists in this case and believe I owe a duty to call it to the attention of this Court and the Bar and Bench of this state.
Harris is a 17 year-old boy. He was transferred out of the juvenile division to the adult side of the circuit court. He was placed on 40 years probation. In my opinion, this sentence is illegal. Therefore, this case should be affirmed on the merits, but the sentence must be set aside and remanded so that the trial court can impose a legal sentence.
Subjects, thoughts, and concepts that I address have not been briefed nor presented as issues unto this tribunal. Therefore, at first blush, this writing is untenable.
However, I call attention to
Notwithstanding, we have held that the plain error rule applies in exceptional cases and then it must be applied cautiously; the rule does not encompass every error that occurs at trial, but only those which are both obvious and substantial. People in Interest of R.R., 447 N.W.2d 922 (S.D. 1989). Before us, we have an exceptional case and a substantial sentencing error.
Harris was found guilty of:
- One Count Kidnapping-Class 1 felony (Maximum Life Imprisonment and $25,000 fine);
- One Count Intentional Damage to Public Property-Class 4 Felony (Maximum 10 years and $10,000);
- Three Counts Aggravated Assault-Class 3 Felony (Maximum 15 years and $15,000 fine).
As I previously expressed, Harris was placed on probation and for a period of 40
SDCL 23A-27-12. (Rule 32(e)) Placement on probation-Exception. After conviction of an offense not punishable by death or life imprisonment, a defendant may be placed on probation. No person who has been previously convicted for a crime of violence as defined in § 22-1-2(9) may be placed on probation if his second or subsequent felony conviction is for a crime of violence as defined in § 22-1-2(9).
SDCL 23A-27-13. Order suspending imposition of sentence and placing defendant on probation-Revocation of suspension. Upon receiving a verdict or plea of guilty for a misdemeanor or felony not punishable by death or life imprisonment by a person never before convicted of a crime which at the time of conviction thereof would constitute a felony in this state, a court having jurisdiction of the defendant, when satisfied that the ends of justice and the best interest of the public as well as the defendant will be served thereby may, without entering a judgment of guilt, and with the consent of the defendant, suspend the imposition of sentence and place the defendant on probation for such period and upon such terms and conditions as the court may deem best. A court may revoke such suspension at any time during the probationary period and impose and execute sentence without diminishment or credit for any of the probationary period.
Under South Dakota Constitution, Art. V, § 5, the circuit courts of this state are empowered to place offenders on probation but must do so in statutorily mandated circumstances and by certain statutorily mandated ways. State v. Oban, 372 N.W.2d 125 (S.D. 1985). It simply was not statutorily accomplished in this case.
Clearly, this sentence is illegal under State v. Tibbetts, 333 N.W.2d 440 (S.D. 1983) and should be corrected under Chapter 23A-31, CORRECTION OF PROCEEDINGS, and particularly
In summation, this case should be affirmed on the merits but reversed because of an improper sentence under the facts of this case and the kidnapping conviction.
Notes
The following factors may be considered by the court in determining whether a child should be transferred:
(1) The seriousness of the alleged offense to the community and whether protection of the community requires waiver;
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner;
(3) Whether the alleged offense was against persons or property with greater weight being given to offenses against persons;
(4) The prosecutive merit of the complaint. The state shall not be required to establish probable cause to show prosecutive merit;
(5) The desirability of trial and disposition of the entire offense in one proceeding when the child‘s associates in the alleged offense are adults[;]
(6) The record and previous history of the juvenile;