In re B.D.C.

MR. JUSTICE SHEA delivered the Opinion of the Court. Defendant youth, B.D.C., appeals from an order denying his motion to dismiss for lack of jurisdiction the State’s petition for transfer, and from an order allowing transfer to adult court. On April 11, 1983, the petition was filed in the Youth Court of Missoula County, alleging that B.D.C. was a delinquent youth and that he had committed acts which if — 218 — committed by an adult would constitute deliberate homicide under Sections 45-5-102(a) and 45-2-302(3), MCA. The State then moved to transfer the case to adult court under Section 41-5-206, MCA. B.D.C.’s motion to dismiss was denied on grounds that the application of Section 41-5-206, MCA, does not depend on whether one is charged directly or through accountability. The transfer hearing was held on June 2 and 3, 1983, and the trial court entered findings and conclusions that there was reason to believe B.D.C. committed the offense, that youth facilities were inadequate for him and that the crime had been premeditated. There are two issues presented by the youth, B.D.C., and both are jurisdictional under Section 41-5-206, MCA. First, whether the Youth Court had jurisdiction to transfer the case to adult court under Section- 41-5-206(a), MCA, when B.D.C. was charged with deliberate homicide by accountability. Second, whether there was substantial evidence to support the required finding of the Youth Court under Section 41-5-206(d), that the youth facilities are inadequate for B.D.C. We reverse and hold that, although the Youth Court had jurisdiction to transfer the case under Section 41-5-206(a), it did not have jurisdiction under Section 41-5-206(d), because the Youth Court’s required finding under that section, and other related findings and conclusions, were not supported by the evidence. This case involves a stormy relationship between a father and son, with a tragic ending. B.D.C. was born in California and his parents were divorced when he was three years old. His father moved to Missoula, Montana, and B.D.C. stayed in California with his mother. When B.D.C. was eight, his mother died of cancer. Despite the fact B.D.C. wished to stay in California with his maternal grandparents, the California court awarded custody to the father and B.D.C. went to Missoula with him. There is substantial evidence to show that B.D.C.’s father was very hard on him and nothing B.D.C. did was “good — 219 — enough.” The boy’s father was an alcoholic and was often mentally and physically abusive to B.D.C. while at home. The boy testified, as did his father’s wife, that the boy would stay in his room so that he would not have to face his father. B.D.C. had a close relationship with his grandmother in California (his grandfather had died one month after his mother), but because his father would not let him telephone her, B.D.C. had to use the neighbors’ telephone. They were aware of the situation at B.D.C.’s home and gladly allowed him to use their phone. From the beginning, B.D.C. had a difficult time dealing with his father’s rejection and the rejection and abuse only increased during B.D.C.’s junior high and high school years. He tried to participate in sports and other activities to please his father, but it was to no avail. He testified to some length about his father’s continuous and unreasonable demands, and about his own frustrations in being unable to receive his father’s love and attention. In seventh grade when his father blackened his eye, B.D.C. went to the school counselor for help with his situation. She only told him to “try harder,” advice he considered a “brushoff.” He also went to neighbors and friends, but there was little they could do. The point is that B.D.C. did seek outside help. It was only after years of rejection and abuse that he wrongly perceived there was no other alternative but to kill his father. During the spring of 1983, when B.D.C. was sixteen and a sophomore in high school, he began talking with a neighborhood friend about killing his father. The friend told B.D.C. he would do it, and on or about April 7, 1983, while B.D.C. waited across the street, the friend shot B.D.C.’s father to death while he slept. Both boys disposed of the body somewhere outside of town and it was never recovered. One or two days later the neighbor boy admitted the killing to the police, and both boys were arrested. Both issues presented concern the jurisdiction of the — 220 — Youth Court to transfer B.D.C.’s case to adult criminal court under Section 41-5-206, MCA. That section provides in relevant part: “(1) After a petition has been filed alleging delinquency, the court may, upon motion of the county attorney, before hearing the petition on its merits, transfer the matter of prosecution to the district court if: “(a) the youth charged was 16 years of age or more at the time of the conduct alleged to be unlawful and the unlawful act is one or more of the following: “(i) criminal homicide as defined in 45-5-101; “(b) a hearing on whether the transfer should be made is held in conformity with the rules on a hearing on a petition alleging delinquency, except that the hearing will be to the youth court without a jury; “(c) notice in writing of the time, place and purpose of the hearing is given to the youth, his counsel, and his parents, guardian, or custodian at least 10 days before the hearing; and “(d) the court finds upon the hearing of all relevant evidence that there are reasonable grounds to believe that: “(i) the youth committed the delinquent act alleged; “(ii) the seriousness of the offense and the protection of the community require treatment of the youth beyond that afforded by juvenile facilities; and “(iii) the alleged offense was committed in an aggressive, violent, or premeditated manner . . .” The first issue is whether B.D.C. is charged with criminal homicide as defined in Section 45-5-101, MCA. B.D.C. contends that because he is charged by accountability — e.g., he did not pull the trigger — he is not charged “as defined in 45-5-101.” B.D.C.’s challenge on this ground has no basis in law. B.D.C. seems to be arguing that when one is charged with an offense by accountability, he or she is being charged with a separate or different offense. Accountability, however, is merely a conduit by which one is held criminally — 221 — accountable for the acts of another. There is no separate offense, only the underlying offense which has been physically committed by another, but for which the defendant is equally responsible because of his or her conspiring or encouraging participation. B.D.C. is charged by accountability with deliberate homicide because he and J.P.D. conspired to kill B.D.C.’s father. Despite the fact that only J.P.D. pulled the trigger, B.D.C.’s admission that he helped plan and facilitate the killing supplied the trial court with sufficient grounds to believe B.D.C. committed the act as alleged. If a person has conspired to commit and facilitated the commission by another of a criminal act, he is no less guilty because he did not “pull the trigger.” We hold that, for purposes of transfer to adult court under Section 41-5-206(a), it makes no difference whether a youth is charged directly or by accountability with one of the enumerated offenses in that section. The second issue is dispositive. Before a youth court has jurisdiction to transfer a case to adult court, it must find that the juvenile facilities are inadequate for the youth in light of the “seriousness of the offense” and the need to protect the community. The Youth Court made the required finding, but it is not supported by the evidence. In finding No. 11, the Youth Court found: “11. That the staff of the Pine Hills School recommends that B.D.C. be placed in that facility for treatment but has declined to make a recommendation on whether their facilities will be adequate in view of the seriousness of the offense and the need for protection of the community.” This finding is puzzling in light of the actual recommendation from the Pine Hills staff. After the Pine Hills staff completed the 45-day evaluation ordered by the court, it agreed on a recommendation to the court. In a letter dated July 17, 1983, Pine Hills Professional Counseling Service Director, John R. Klaboe, stated: “To further clarify our position on B.D.C., we feel that — 222 — Pine Hills School is the appropriate placement for this student. We feel that we can help him in dealing with the problems he is presently having. We do not, however, feel that the staff of Pine Hills is capable of making a recommendation in the adult court versus juvenile court question that pertains to the case. We see this as a legal question, one that is beyond our capabilities.” In a subsequent letter (July 21, 1983), that accompanied the final report to the Youth Court, Mr. Klaboe stated: “It is recommended that B.D.C. be placed at Pine Hills School. While at Pine Hills School, he can be helped to deal with his personal problems, continue Ms education and reside in a secure setting.” The Youth Court misinterpreted the July 17, 1983 letter to say that Pine Hills was reserving a recommendation as to whether their facility was “adequate” for B.D.C. Both letters make it clear that the Pine Hills staff concluded their facility is the proper place for him; they only reserved their recommendation on the ultimate resolution of the adult versus youth court issue. The adequacy of the youth facility, in light of the severity of offense and the need for the protection of the community, is only one of the factors considered under Section 41-5-206 to determine whether the cause should be transferred to adult court. The court sent B.D.C. to Pine Hills so the staff could evaluate him and make a recommendation as to the adequacy of their facility for him. The staff found B.D.C. to be a bright and cooperative, though troubled, youth. He received remarks such as “excellent student,” and “very cooperative.” One social worker, Donna Corkins, reported that “(B.D.C.) presents an excellent and receptive candidate for therapeutic intervention.” In light of all the circumstances, the staff recommended that B.D.C. be sent to Pine Hills. Finding No. 11 incorrectly restates that recommendation and is therefore not supported by any evidence. The cause may not be transferred simply because the — 223 — youth is alleged to have committed a serious offense. This Court so held in the case of In Re Stevenson (1975), 167 Mont. 220, 538 P.2d 5, at 9: “. . . the evidence presented at the transfer hearing was insufficient to waive jurisdiction because there was no showing that the ‘seriousness of the offense and the protection of the community requires treatment of the youth beyond that afforded by juvenile facilities,’ as required by Section 10-1229(l)(d)(ii), (now Section 41-5-206(l)(d)(ii), MCA). The State argues the very nature of the offenses demonstrates the need for treatment of the youth beyond available juvenile facilities. We cannot agree. To assume that juvenile facilities are inadequate from the mere fact that the youth is charged with a serious offense, completely ignores the rehabilitative purpose of the Act as set forth in Section 10-1202 (now Section 41-5-102, MCA), and is tantamount to a judicial admission the juvenile facilities in Montana are inadequate to cope with the hard core youth offender. We will not do this.” (Emphasis added.) Because there is no evidence to support the finding that the youth facility was inadequate, we can only assume the cause was transferred because the offense is a serious offense, and was premeditated. But that is insufficient. Although our holding regarding finding of fact No. 11 is dispositive, we also hold that finding no. 10 is not supported by the evidence. The Youth Court entered finding no. 10 as follows: “[B.D.C.] appears to be unwilling to accept any particular responsibility for his actions and does not appear to be disturbed by the killing of his father or his role in it.” To the contrary, B.D.C. never denied his involvement in his father’s death. He gave a full confession to authorities. He acknowledged the moral wrong he committed in his testimony and expressed regret for the sorrow brought upon his father’s relatives. It is true that B.D.C. expresses anger towards his father, but he also expresses fear; fear acquired from living in a constant threatening, punitive, and degrad — 224 — ing environment. He stated many times to the staff at Pine Hills, “If I could only have that day back, none of this would have happened.” There are no reasonable grounds to support finding No. 10. Because there was no evidence to support the court’s finding that the juvenile facilities are inadequate for B.D.C. in light of the seriousness of the offense and the need to protect the community, we hold that the Youth Court had no jurisdiction to transfer the cause to adult court under Section 41-5-206(d)(ii), MCA. The cause is reversed and remanded to Youth Court with instructions to try B.D.C. as a youth. MR. CHIEF JUSTICE HASWELL and MR. JUSTICES MORRISON and SHEEHY concur.