State v. R. H.State v. R. H.
- Reporters:
- Before:
- McGraw
McGRAW, Justice.
In this appeal from an order of the Circuit Court of Mingo County, the appellant, R. H., challenges the transfer of his case from the court‘s juvenile jurisdiction to its criminal jurisdiction. He contends, among other things, that the lower court erred in holding the 1978 amendments to the juvenile law applicable to the transfer hearing as well as to subsequent proceedings and in admitting prior testimony of several witnesses. The appellant also contends that the 1978 amendments to the juvenile law are unconstitutional in that they violate due process requirements. We find merit in several of the appellant‘s contentions and we reverse the order of the circuit court.
The appellant, then seventeen years old, was charged by delinquency petition with the murder on August 31, 1977, of Pearlis Daugherty, an act which if committed by an adult would constitute a felony by virtue of
Before any further proceedings were conducted with respect to the transfer motion, the legislature, on March 11, 1978, amended
At the transfer hearing, the court ruled, over the appellant‘s objection, that the 1978 amendments were applicable to the transfer hearing and to all subsequent proceedings. The appellant‘s counsel announced that he could not permit the appellant to testify in his own behalf at the hearing because the 1978 amendments did not preclude the use of such testimony at subsequent proceedings as did the 1977 Act.1 On November 15, 1978, the court granted the State‘s motion for transfer. The order for transfer contained findings of fact and the court‘s conclusion that the State had shown by clear and convincing proof that there was probable cause to believe appellant had committed the offense and that there were no reasonable prospects for the rehabilitation of the child. It is from this order that this appeal is taken.
I
The appellant first argues that the 1978 amendments to section 10 of the juvenile law, respecting transfer of juvenile proceedings to criminal jurisdiction, are unconstitutional in that they do not afford appellant minimum due process protections. Specifically, the appellant alleges that because
Both Kent and McArdle, supra, recognize that due process requires a juvenile be afforded a meaningful transfer hearing before the court can waive the juvenile jurisdiction.2 The United States Supreme Court appended to the Kent decision a policy memorandum setting out certain factors to be considered by a judge in reaching a determination as to whether the court should relinquish its juvenile jurisdiction in favor of criminal jurisdiction. We adopted the Kent criteria as providing guidelines to judges attempting to resolve the question of whether to transfer juvenile proceedings under our juvenile law in State ex rel. Smith v. Scott, W.Va., 238 S.E.2d 223 (1977). We take this opportunity to reiterate those guidelines:
The determinative factors which will be considered by the Judge in deciding whether the Juvenile Court‘s jurisdiction over such offenses will be waived are the following; 1. The seriousness of the alleged offense to the community and whether the 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 against property, greater weight being given to the offenses against persons especially if personal injury resulted.
4. The prosecutive merit of the complaint, i.e., whether there is evidence upon which a Grand Jury may be expected to return an indictment ...
5. The desirability of trial and disposition of the entire offense in one court when the juvenile‘s associates in the alleged offense are adults who will be charged with a crime in [another court].
6. The sophistication and maturity of the juvenile as determined by consideration of his home, environmental situation, emotional attitude, and pattern of living.
7. The record and previous history of the juvenile including previous contacts with the Youth Aid Division, other law enforcement agencies, juvenile courts and other jurisdictions, prior periods of probation to this Court, or prior commitments to juvenile institutions.
8. The prospects 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. 383 U.S. at 566-567, 86 S.Ct. at 1060. (emphasis added)
In Smith we noted that while the legislature may statutorily require juvenile courts to consider certain factors in deciding to grant a motion for transfer, such mandate does not preclude consideration of other criteria. Of course, at the time of our decision in Smith, the 1977 Act was in force and effect and a finding by the juvenile court that there were no reasonable prospects for the child‘s rehabilitation was statutorily mandated under the Act as a prerequisite to transfer of jurisdiction.
The Kent criteria “have largely set the standards for other courts and ... have been the model for statutes governing transfer hearings in other jurisdictions, (citations omitted)” State ex rel. Smith v. Scott, supra. They are viable concerns of any juvenile court faced with the decision of whether to relinquish juvenile jurisdiction, especially in view of the rehabilitative purpose of our juvenile law and the intent of the legislature that transfer should be the exception and not the rule. See
The factors enumerated in Kent do not conflict with the provisions of the juvenile transfer section as amended. Indeed, the statute and the Kent criteria appear to be complementary, rather than contradictory. The statute sets forth the legislatures’ absolute minimum requirements for transfer. The standards in Kent and Smith enhance that legislative determination by providing the juvenile courts with significant guidelines which insure a meaningful transfer hearing as required by due process. We find no conflict between the provisions of
II
The appellant also contends that the circuit court committed prejudicial error in holding the 1978 amendments to our juvenile law applicable to the transfer hearing as well as to all subsequent proceedings in the case. The appellant argues that because the underlying offense with which he was charged was committed at a time when the 1977 Act was in effect, the 1978 amendments violate ex post facto prohibitions in our state and federal constitutions and are unconstitutional with respect to him.
We note first that our disposition of this issue with respect to the transfer hearing is controlled by our holding in State v. Bannister, W.Va., 250 S.E.2d 53 (1978). There we held that
In Bannister, we found it unnecessary to discuss the possible ex post facto consequences of retroactive application of the amended transfer provision to Bannister‘s hearing. In view of our holding in that case, we need not reach the question here with respect to the juvenile court‘s ruling that the 1978 amendments were applicable to the appellant‘s transfer hearing. Bannister is dispositive of that issue. The appellant,
Both the state and federal constitutions prohibit the enactment of ex post facto laws by the State.6 On their face, these constitutional provisions prohibit only the enactment of retroactive legislation and do not apply to judicial action. See Marks v. U. S., 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977); Frank v. Mangum, 237 U.S. 309, 35 S.Ct. 582, 59 L.Ed. 969 (1915). The United States Supreme Court has recently held, however, that even though the Ex Post Facto Clause is not directed at judicial action, the principle on which it is based is a fundamental concept of constitutional liberty embodied in the due process clauses of the Fifth and Fourteenth Amendments. Marks v. U. S., 430 U.S. 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). See also, U. S. v. Brown, 555 F.2d 407 (5th Cir. 1977). Thus, due process places a limitation on retroactive judicial application of statutory enactments which precludes courts from effecting a result which the legislature is barred from achieving by the Ex Post Facto Clause. See Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964).
The appellant does not argue here that the 1978 amendments in and of themselves constitute ex post facto legislation in violation of our federal and state constitutions. Even though appellant awkwardly frames his contention in terms of the statute itself being unconstitutional, his true argument is that the circuit court‘s ruling, applying the 1978 amendments to the appellant‘s case, violated the ex post facto principle inherent in our concept of due process and was therefore void. Thus, even if we find the circuit court erred in its application of the statute, it is only the action of the circuit court which is invalid and not the provisions of the 1978 juvenile law. We turn now to the substance of the appellant‘s argument.
At the transfer hearing, the juvenile court determined that the 1978 amendments to the juvenile proceedings statute were “purely procedural” in nature and, on the whole, ameliorative to the juvenile. The lower court concluded, therefore, that its application of the amended statute in toto to the proceedings in the appellant‘s case was not within the ex post facto prohibition. The juvenile judge apparently considered the briefs submitted on the issue by both parties, paying particular attention to the specific statutory changes which the appellant cited as affecting his rights to his detriment, before reaching his determination. While we commend the lower court for its conscientious approach to the question, we must conclude that its holding that the entire 1978 law was applicable to all proceedings involving the appellant on the underlying murder charge is too broad to withstand the appellant‘s challenge.
Because the appellant‘s challenge to the circuit court‘s ruling is grounded on the ex post facto principle embodied in the federal and state due process provisions, we must analyze that ruling in the light of traditional ex post facto cases which relate generally only to retroactive legislation. See Marks v. U. S., supra; U. S. v. Brown, supra. The early classic definition of an ex post facto law was set forth by the United States Supreme Court in Calder v. Bull, 3 Dall. 386, 3 U.S. 386, 1 L.Ed. 648 (1798):
(1) Every law that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes such action; (2) every law that aggravates a crime, or makes it greater than it was when committed; (3) every law that changes the punishment, and inflicts a greater punishment than the
law annexed to the crime when committed; (4) every law that alters the legal rules of evidence, and receives less or different testimony than the law required at the commission of the offense, in order to convict the offender. 3 Dall. at 390, 3 U.S. at 390.
Mere procedural changes which affect only the mode of trial or the rules of evidence and which do not work to the substantial disadvantage of an accused are not customarily held to be within the ex post facto prohibition. Beazell v. Ohio, 269 U.S. 167, 46 S.Ct. 68, 70 L.Ed. 216 (1925). However, procedural changes can be ex post facto depending on their effect on the accused. U. S. v. Henson, 486 F.2d 1292 (D.C.Cir. 1973).
Much time and energy has been devoted by the courts to developing a standard which succinctly enunciates the distinction between those changes in procedure which may be applied retroactively to persons being tried for an act which was committed before the effective date of the change and those which are within the ex post facto prohibition. In Kring v. Missouri, 107 U.S. 221, 2 S.Ct. 443, 27 L.Ed. 506 (1882), the Supreme Court discussed this distinction at length, concluding that the ex post facto prohibition extends to any alteration, even one labeled procedural, “which in relation to the offense or its consequences, alters the situation of a party to his disadvantage“. It has also been stated that no substantial right which the law gives an accused at the time of the commission of the offense to which his guilt relates can be taken away from him ex post facto, merely by calling it a law of procedure. Id. 2 S.Ct. at 453; Frisby v. U. S., 38 App.D.C. 22 (1912). Kring also noted that insofar as a law operates to take away or impair a defense available to the accused under the law at the time of the offense, it violates the ex post facto prohibition. 107 U. S. at 229, 2 S.Ct. at 449; Beazell v. Ohio, supra. The only attempt at elucidating this standard in our jurisdiction has been the statement that retroactive application of a new punishment which operates “to the detriment or material disadvantage of the wrongdoer” is within the ex post facto prohibition. State v. Fisher, 126 W.Va. 117, 125, 27 S.E.2d 581, 585 (1943). Thus, the distinction between those procedural changes which are prohibited by the ex post facto principle and those which may be applied retroactively appears to be based on the effect of the alteration on the substantive rights of the accused.
These general observations, however, provide only a standard by which the courts are to be guided in their determination of which statutory changes may be applied retroactively to an accused.
Just what alterations of procedure will be held to be of sufficient moment to transgress the constitutional prohibition cannot be embraced within a formula or stated in a general proposition. The distinction is one of degree ... Beazell v. Ohio, supra, 269 U.S. at 171, 46 S.Ct. at 69.
This court has recognized the problems inherent in attempting to label such changes as “procedural” or “substantive” with respect to their retroactive application to criminal defendants. In Pnakovich v. SWCC, W.Va., 259 S.E.2d 127 (1979) we noted:
In practice, very few changes [to criminal statutes] are perceived to be merely procedural because of the nature of the right which the criminal statute alters. If the procedural change is not perceived to deny the accused a defense available under the laws at the time of his offense, or operates only in a limited and unsubstantial manner to his disadvantage, then the provision may be applied retroactively. Thus it may be seen that limitations on retroactive criminal legislation are particularly severe, while those in the civil area turn upon the amount of substantial reliance. 259 S.E.2d at 131.
This is no less the case when the proceedings involve juveniles brought before the court by way of delinquency petitions alleging the commission of criminal acts.
The conclusion we draw from this discussion is that because statutory changes which for other purposes are characterized
The State further maintains that even if the juvenile court erred in applying the 1978 amendments to our juvenile law to the proceedings in the appellant‘s case, the error was not prejudicial because the outcome would not be affected by application of the 1977 Act. We note that the juvenile judge did permit the introduction of evidence regarding the reasonable prospects of rehabilitation for the child and made findings of fact and conclusions of law thereon. Additionally, we commend the juvenile judge for his careful analysis of Kent, supra, and his conclusion that the standards enunciated therein were applicable under both the 1977 Act and the 1978 amendments. However, we cannot agree with the State‘s contention that the court‘s ruling that the 1978 amendments were applicable to the transfer proceeding did not prejudice the appellant.
The 1977 Act provided that no testimony of the child given at the transfer hearing could be admitted into evidence at any subsequent criminal or adjudicatory proceeding.
III
The juvenile court also erred in admitting, over objection, the prior testimony of the prosecution‘s witness, Ruth Daugherty, to prove probable cause under § 10 of the 1978 juvenile law. At the preliminary hearing held on September 24, 1977, Ms. Daugherty, wife of the decedent, had testified extensively as to the circumstances of the shooting of her husband on August 31, 1977. The witness was subpoenaed by the State to testify at the transfer hearing on August 24, 1978, but she did not appear. The State informed the court that an officer had gone
The well-settled rule in West Virginia is that sworn testimony taken from a former trial or proceeding is admissible if there is (1) an inability to obtain the testimony of the witness, (2) an opportunity to cross-examine the witness in the former proceeding, and (3) a substantial identity of the parties and the issues. State v. Dawson, 129 W.Va. 479, 40 S.E.2d 306 (1946). The appellant admits that he was afforded an opportunity to cross-examine the witness at the preliminary hearing and that the parties and issues were substantially the same at the transfer hearing. The appellant‘s sole contention is that there was no evidence that the witness was unavailable to testify and that the former testimony was therefore inadmissible.
Where the witness is unavailable by reason of death or insanity or where the witness is beyond the scope of state process or where the whereabouts of the witness are unknown and cannot be discovered by diligent search or where the witness cannot remember, the prior testimony of the witness is admissible in a subsequent proceeding. See State v. Spadafore, W.Va., 220 S.E.2d 655 (1975); State v. Dawson, supra; Show v. Mount Vernon Farm Dairy Products, Inc., 128 W.Va. 598, 37 S.E.2d 459 (1946); State v. Sauls, 97 W.Va. 184, 124 S.E. 670 (1924). Where the prior testimony is sought to be introduced on the ground that the witness‘s whereabouts are unknown, such evidence is not admissible unless it is shown that diligent efforts to secure the attendance of the witness were made unsuccessfully. State v. Sauls, supra. Here, the only evidence that the witness was unavailable at the transfer hearing was the unsworn statement of the prosecuting attorney that an officer had been sent to the witness‘s home on the morning of the hearing and had knocked on her door for ten to fifteen minutes without receiving a response. There is no indication that any other attempt was made to find the witness or to question her relatives and friends as to her whereabouts. On this record we cannot say it was shown that a diligent search was made to find the witness and we must conclude that the State did not lay a proper foundation for the introduction of the prior testimony of Ms. Daugherty.
In view of the prejudicial effect of the juvenile court‘s erroneous ruling that the 1978 amendments to
Reversed and remanded.