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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. C.D., a Minor v. State of Alaska (1/24/2020) sp-7425
Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
C.D., a Minor, )
) Supreme Court No. S-17447
Appellant, ) Court of Appeals No. A-12968
)
v. ) Superior Court No. 3AN-16-00004 DL
)
STATE OF ALASKA,
) O P I N I O N
)
Appellee.
) No. 7425 - January 24, 2020
)
Certified Question and Jurisdiction Transfer from the Court
of Appeals of the State of Alaska, on appeal from the
Superior Court of the State of Alaska, Third Judicial District,
Anchorage, Kevin M. Saxby, Judge.
Appearances: Michael Jude Pate, Assistant Public Defender,
Renee McFarland, Assistant Public Defender, and Quinlan
Steiner, Public Defender, Anchorage, for Appellant. Nancy
Simel, Assistant Attorney General, Anchorage, and Kevin G.
Clarkson, Attorney General, Juneau, for Appellee.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
WINFREE, Justice.
I. INTRODUCTION
We accepted transfer of this case from the court of appeals to consider a
constitutional claim arising from the application of a juvenile jurisdiction waiver statute.
The superior court generally must grant a petition to waive juvenile jurisdiction if, after
----------------------- Page 2-----------------------
a hearing, it finds that a minor is not amenable to treatment in the juvenile justice system.
A statutory provision outlines specific circumstances creating a rebuttable presumption
that a minor is not amenable to such treatment; the burden to prove amenability to
treatment then shifts to the minor. In this case a minor subject to the statutory provision
did not testify at his waiver hearing and did not overcome the presumption; the superior
court granted the State's waiver petition. The minor appeals, contending that the
statutory rebuttable presumption and shifted burden of proof violate his constitutional
right against self-incrimination and his constitutional due process rights.
We earlier issued an order, with an opinion to follow, vacating the superior
court's decision and remanding for further proceedingsallowing theminor to testify with
certain protections. We now explain that fundamental fairness requires adopting an
exclusionary rule when a minor bears the burden of rebutting the statutory presumption
of being unamenable to treatment in the juvenile justice system: the minor's testimonial
evidence at the waiver hearing cannot be used as substantive evidence over the minor's
objection at any subsequent juvenile adjudication or adult criminal proceedings.
II. STATUTORY FRAMEWORK
"A juvenile offender has no constitutional right to be tried in a juvenile
1 The right to have one's case heard in juvenile court instead is "granted by the
court."
state legislature."2 We thus begin by describing the relevant statutory framework.
Juvenile courts generally have jurisdiction over "[p]roceedings relating to
a minor under 18 years of age residing or found in the state . . . when the minor is alleged
to be or may be determined by a court to be a delinquent minor as a result of violating
1 W.M.F. v. State, 723 P.2d 1298, 1300 (Alaska App. 1986).
2 Id.
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3
a criminal law." But juvenile jurisdiction is waived automatically in several situations,
4
allowing the State to prosecute a minor as an adult.
The State also may petition the
court to waive juvenile jurisdiction; if the court grants the petition, the juvenile case is
5
closed and the minor may be prosecuted as an adult.
To succeed on a waiver petition, the State typically bears the burden of
demonstrating "probable cause for believing that [the] minor is delinquent and . . . that
the minor is not amenable to treatment."6 But a minor who allegedly has committed "an
unclassified felony or class A felony . . . that is a crime against a person . . . is rebuttably
presumed not to be amenable to treatment" and has the burden of rebutting that
presumption.7
"A minor is unamenable to treatment . . . if the minor probably cannot be
rehabilitated by treatment under [Alaska's juvenile delinquency laws] before reaching
20 years of age."8 "In determining whether a minor is unamenable to treatment, [a] court
may consider [1] the seriousness of the offense the minor is alleged to have committed,
[2] the minor's history of delinquency, [3] the probable cause of the minor's delinquent
behavior, and [4] the facilities available to the [Department of Corrections] for treating
3 AS 47.12.020(a).
4 See, e.g., AS 47.12.030 (allowing automatic waiver of juvenile jurisdiction
in several situations, including when minor over 16 years old commits certain felonies).
5 See AS 47.12.100(a).
6 See AS 47.12.100(a), (c).
7 AS 47.12.100(c)(2).
8 AS 47.12.100(b).
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9
the minor." Although the statute frames the factors permissively ("the court may
consider"), Alaska Delinquency Rule 20(d)(1) provides that in a waiver order the court
must make written findings of fact stating that "the juvenile is not amenable to treatment
based on the factors stated in AS 47.12.100(b)." (Emphasis added.) A superior court
thus must at least consider each factor and base its amenability finding on the factors.
But all four factors do not need to indicate that a minor would not be amenable to
treatment for a court to order waiver of juvenile jurisdiction. 10
We turn now to the facts of this case.
III. FACTS AND PROCEEDINGS
A. Facts
In early January 2016 15-year-old C.D.11 shot and killed his mother and
older sister at the family's home. Taking his younger sister with him, C.D. then left the
home in his parents' truck, intending to drive to his grandfather's cabin. He was taken
into custody at a gas station. While in custody C.D. waived his right to remain silent and
his right to counsel and confessed to police detectives.
The record contains a few clues about C.D.'s possible motivations for
committing these crimes but no clear answers. C.D. apparently had been depressed and
suicidal at times in the months leading up to the incident. He possibly had been abusing
his prescription attention-deficit disorder medication, and his mother had taken him off
the medication because of his marijuana use. His mother had removed him from school
9 Id. (numbering added).
10 J. R. v. State, 616 P.2d 865, 867 (Alaska 1980) ("[N]ot all four of th[e]
factors need be determined adversely to the youth to warrant waiver of juvenile
jurisdiction.").
11 We use initials to protect C.D.'s identity. See AS 47.12.300(c).
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a few months prior to the incident because he had been skipping classes to hang out with
his friends. His mother also had convinced him to break up with his girlfriend because
she was a "distraction." His parents had been considering placing him in a residential
treatment program for youth with substance abuse problems.
C.D. stated in his confession that his family had been nagging him. He
claimed that he had been asleep prior to the shooting and "woke up to it happening." He
stated that in the past he had woken up and been unable to remember interacting with his
family. When pressed on the cause of his actions, he apparently stated, "I think I was
just finally done with everyone nagging."
B. Proceedings
1. Waiver petition and prehearing motions
The State filed a petition to adjudicate C.D. as delinquent shortly after the
incident, charging him with two counts of murder in the first degree and one count of
vehicle theft. A few weeks later the State petitioned to waive juvenile jurisdiction.
Murder in the first degree, one of the crimes C.D. has been charged with,
12 C.D. thus is presumptively
is an unclassified felony crime against a person.
unamenableto treatment under AS47.12.100(c)(2) and bears theburdenofrebutting that
presumption by presenting evidence regarding the seriousness of his offense, his past
delinquency, the probable cause of his alleged delinquent behavior, and the available
treatment facilities.13 C.D. filed a number of motions prior to the waiver hearing,
contending in one that AS 47.12.100(c)(2) violates the Alaska and United States
Constitutions. C.D. argued that the statute was unconstitutional as applied to him
12 See AS 11.41.100(b) ("Murder in the first degree is an unclassified felony
. . . ."); AS 47.12.990(3) (" '[C]rime against a person' means an offense set out in
AS 11.41.").
13 See AS 47.12.100(b).
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becauseitviolatedhis privilegeagainstself-incrimination, violated his dueprocess rights
by creating an illegal rebuttable presumption, and violated his right to equal protection
by "creating a classification in which the state has a very weak interest that causes
serious mental harm to the accused minor classified for adult jail." C.D. stated in his
motion that, if he elected to testify at the waiver hearing, he would seek to preclude the
State from using his statements at trial.
The superior court denied C.D.'s motion, reasoning that Alaska's waiver
statute did not require C.D. to admit guilt or show remorse to demonstrate he was
amenable to treatment. The court stated that a minor could prove amenability to
treatment in a number of ways other than offering incriminating testimony, including
"through expert testimony; testimony ofteachers,counsellors,probationofficers, clergy,
or family; records of past psychiatric treatment; and juvenile detention, or social services
records."
2. Waiver hearing
Prior to the waiver hearing, C.D. stipulated that there was probable cause
to believe he was delinquent; the superior court concluded at the hearing that the State
14 C.D.
thus satisfied its burden of establishing probable cause under the waiver statute.
then attempted to rebut the statutory presumption that he was not amenable to treatment.
He introduced evidence about his background, educational history, and his time at the
youth detention center where he was being detained. C.D. did not testify, but he called
several friends, family members, teachers, and detention center staff members to testify
on his behalf. C.D.'s aunt and grandparents offered opinions on his actions, speculating
that he may have felt he had no other choice. The State presented evidence about C.D.'s
conduct at the detention center, including stealing from another resident, planning a
14
See AS 47.12.100(a).
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potentially violent escape with three other juveniles in the facility, and writing
obscenities on a wall in his own blood. Despite these incidents, C.D.'s monthly
detention summaries generally were favorable.
TheStatepresentedaforensicpsychologist's opinion thathedidnotbelieve
C.D. would "be sufficiently rehabilitated, by age 20, to be safe in th[e] community." The
psychologist stated that he was most concerned about C.D.'s "likelihood of violent
recidivism" and that on a test of risk for future dangerousness C.D. scored in the 78th
percentile of all juvenile offenders.
3. Waiver order
The superior court granted the State's waiver petition. The order indicates
that C.D.'s failure to provide adequate evidence regarding the probable cause of his
behavior weighed heavily in the court's decision. The court analogized C.D.'s case to
15
C.G.C. v. State .
In C.G.C. a minor shot and killed his mother and brother and wounded
several others after a day of drinking and consuming cocaine and marijuana with his
16
friends. There was evidence of an argument between C.G.C. and one of his friends
17 At C.G.C.'s waiver hearing several experts testified that
shortly before the shootings.
he suffered from emotional and substance use issues explaining, at least in part, his
violent actions.18 The experts agreed that C.G.C.'s treatment prognosis was generally
favorable.19 But the experts disagreed whether C.G.C.'s problems could be adequately
15 702 P.2d 648 (Alaska App. 1985).
16 Id. at 648-49.
17 Id. at 649.
18 Id. at 650.
19 Id.
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addressed by age 20. 20 The superior court granted the State's waiver petition, and the
court of appeals affirmed the superior court's decision. 21
Comparing the two cases, the superior court characterized C.G.C.'s crimes
as more serious than C.D.'s. The court noted that in C.G.C.'s case experts still had
testified his treatment prognosis was good; experts were able to identify a probable cause
for C.G.C.'s actions and a corresponding treatment protocol.22 The court noted in
contrast that C.D.'s actions were "so far, inexplicable" and that the only expert testimony
in C.D.'s case indicated he would not be sufficiently rehabilitated by age 20.
The superior court further stated that because "the burden is upon C.D. to
show his amenability to treatment, it was incumbent on him to provide evidence as to
what, if any, treatment he might require and how quickly that treatment might be
successful. He has not done so." The court reiterated that the "most significant" factor
informing its decision was that C.D. "committed these killings with little or no
provocation, after awakening from a nap." The court noted that "[t]he stakes are
incredibly high, for both society and C.D., and yet he has given no real explanation for
his behavior and no information about what treatment he needs."
The superior court stated that its reasoning did not imply C.D. would have
had to waive the right to remain silent by testifying or consulting mental health experts.
The court stated that C.D. "could have presented expert testimony that was based only
on file reviews and testimony . . . [or] on interviews with friends and family members."
The court also suggested that C.D. "could have presented additional informed lay
opinions."
20 Id.
21 Id. at 651.
22 See id. at 650.
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----------------------- Page 9-----------------------
4. Motion for reconsideration
C.D. sought reconsideration, asking the superior court to delay its waiver
decision until he had the opportunity to participate in a treatment program through the
juvenile justice system. He asserted that holding the court's waiver decision in abeyance
would "reconcile[] strongly competing interests"; the court would have more accurate
information with which to make its decision, and C.D. would not "needlessly" be placed
in adult jurisdiction.
The superior court denied reconsideration, saying that the request was
"legally unsupportable and impractical." The court noted that holding the decision in
abeyance would implicate C.D.'s speedy trial right. And the court stated that, "[m]ore
to the point, treatment cannot begin unless C.D. is adjudicated to be a delinquent minor
and a disposition order is entered. Before such an event occurs, C.D. cannot be
compelled to discuss his acts with treatment providers."
5. Appeal
C.D. appealed the superior court's waiver decision to the court of appeals.
The court of appeals certified the appeal to us because it involves a significant question
of law under the Alaska Constitution. 23
We accepted the certified appeal and assumed
24
jurisdiction.
23 See AS 22.05.015(b) (providing supreme court transfer jurisdiction over
court of appeals' case involving significant constitutional law question or substantial
public interest issue).
24 We review questions of constitutional law de novo. State v. Gonzalez, 853
P.2d 526, 529 (Alaska 1993).
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IV. DISCUSSION
A. When AS 47.12.100(c)(2) Applies, An Exclusionary Rule Is Necessary
To Balance The Right To Present A Waiver Defense Against The
Privilege Against Self-Incrimination.
C.D. argues that AS 47.12.100(c)(2), as applied in this case, violates his
constitutional privilege against self-incrimination by forcing him to present evidence
about the probable cause of his actions. C.D. also argues, based almost entirely on
25
McCracken v. Corey,
that the statute violates his due process rights by forcing him to
26
choose between his right to defend himself and his privilege against self-incrimination.
Because we agree with C.D. that an exclusionary rule is necessary, as a matter of
fundamental fairness, to balance a minor's right to present a defense at a waiver
proceeding against the minor's privilege against self-incrimination, we decline to decide
whether AS 47.12.100(c)(2) violates the privilege against self-incrimination or the right
to due process.
The right to due process includes the right to present evidence in one's
27
defense prior to the deprivation of life, liberty, or property. When a statute vests the
right to have a minor's case heard in the juvenile justice system, that right constitutes a
25 612 P.2d 990, 998 (Alaska 1980) (exercising inherent supervisory powers
to adopt exclusionary rule preventing testimony presented by parolee at parole
revocation hearing from being used against parolee in subsequent criminal proceeding).
26 Although the State contends that C.D. waived this issue because he did not
make the same argument in the superior court, his due process argument is so intertwined
with his self-incrimination argument that we conclude it has been preserved for review.
27 See Alaska Const. art. I, § 7; Sanders v. State, 364 P.3d 412, 422 (Alaska
2015) ("Although it is not absolute, a defendant's right to present a defense is a
fundamental element of due process." (quoting Smithart v. State, 988 P.2d 583, 586
(Alaska 1999))).
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28
liberty interest that cannot be denied without due process. Alaska's juvenile
delinquency laws vest in certain minors the right to have their cases heard in juvenile
court. Alaska Statute 47.12.020(a) provides:
Proceedings relating to a minor under 18 years of age
residing or found in the state are governed by this chapter . . .
when the minor is alleged to be or may be determined by a
court to be a delinquent minor as a result of violating a
criminal law of the state or a municipality of the state.
Alaska Statute 47.12.030 specifies that minors over the age of 16 alleged to have
committed certain offenses will not be subject to juvenile jurisdiction. All other minors
alleged to have violated Alaska's criminal laws, including those for whom the State is
seeking to waive juvenile jurisdiction, have a liberty interest in juvenile status.29 C.D.
thus had a due process right to present evidence at the waiver hearing to protect his
juvenile offender status and avoid being waived to adult criminal court.
Minors also may invoke the Alaska Constitution's privilege against self-
incrimination at juvenile waiver hearings.30 We have interpreted Alaska's privilege
against self-incrimination to be broader than its federal counterpart.31 The privilege
28 See Kent v. United States, 383 U.S. 541, 553 (1966) (holding that juvenile
waiver hearings must "assume[] procedural regularity sufficient in the particular
circumstances to satisfy the basic requirements o f due process and fairness"); State v.
Angel C., 715 A.2d 652, 661 (Conn. 1998) (interpreting Kent as "stand[ing] for the
proposition that if a statute vests a juvenile with the right to juvenile status, then that
right constitutes a liberty interest, of which the juvenile may not be deprived without due
process, i.e., notice and a hearing").
29 See Angel C., 715 A.2d at 661.
30 See Alaska Const. art. 1, § 9; R.H. v. State, 777 P.2d 204, 211 (Alaska App.
1989).
31 See, e.g., Scott v. State, 519 P.2d 774, 785 (Alaska 1974) (holding that,
(continued...)
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"reflects acomplex ofour fundamentalvalues and aspirations,"including "theprotection
32
of individual liberty and privacy."
It protects the rights of criminal defendants "not
only to avoid being compelled to give incriminating responses to particular inquiries, but
[also] to resist being placed in a position where inquiries can be put to [them] while [they
33 The privilege ensures that "the ascertainment of the facts [at a
are] under oath."
31 (...continued)
unlike the U.S. Constitution, "the privilege against compelled self-incrimination under
the Alaska constitution prohibits extensive pretrial prosecutorial discovery in criminal
proceedings").
32 Statev. Gonzalez,825 P.2d 920, 933(AlaskaApp. 1992) (quoting Kastigar
v. United States, 406 U.S. 441, 444 (1972)), aff'd, 853 P.2d 526 (Alaska 1993).
33 Diggs v. State, 274 P.3d 504, 506 (Alaska App. 2012) (quoting 6 W AYNE
R. LAFAVE ET AL., CRIMINAL PROCEDURE § 24.5(a), at 424 (3d ed. 2007)).
For this reason we reject the State's invitation to apply what it terms the
"Wickham/Luce rule" and decline considering C.D.'s due process argument because he
did not testify in the waiver proceeding. In State v. Wickham we adopted the rule set out
by the U.S. Supreme Court in Luce v. United States , 469 U.S. 38 (1984), "requiring
federal criminal defendants to testify to preserve for review a claim of improper
impeachment with a prior conviction." 796 P.2d 1354, 1356 (Alaska 1990).
The Wickham rule is inapplicable in the waiver hearing context. The harm
in compelling a minor to present evidence at a pretrial waiver hearing is that the minor
may be forced to provide testimonial, incriminating evidence that the State can
subsequently use to obtain a conviction. Requiring such testimony to preserve an
argument for appeal would erode a primary purpose of the privilege against self-
incrimination - to "prevent the state, whether by force or by psychological domination,
from overcoming the mind and will of the person under investigation and depriving him
of the freedom to decide whether to assist the state in securing his conviction." See In
re Gault , 387 U.S. 1, 47 (1967), abrogation recognized by Allen v. Illinois , 478 U.S. 364
(1986). When a defendant is determining whether to testify at a criminal trial, the State
already has presented its case. The defendant can weigh the risks involved in testifying
with full knowledge of the evidence. Minors in waiver proceedings lack that knowledge.
(continued...)
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----------------------- Page 13-----------------------
criminal trial] is a 'one-way street' " in which the defendant "is presumed to be
innocent[] . . . [and can] stand silent while the state attempts to meet its burden . . . to
34 "The privilege extends not
prove the defendant's guilt beyond a reasonable doubt."
only to answers that would in themselves support a conviction but also to those which
might furnish 'a link in the chain of evidence' leading to a conviction."35 Much of the
amenability-to-treatmentevidenceaminormightwish topresent underAS47.12.100(b),
such as testimonial evidence regarding the seriousness of the alleged offense or its
probable cause, could "furnish 'a link in the chain of evidence' leading to conviction."36
We considered similar tension between the right to due process and the
37
privilege against self-incrimination in McCracken . McCracken, a parolee, was
"charged with being a felon in possession of a firearm, a violation of both Alaska law
38 McCracken's parole revocation hearing was held
and the conditions of his parole."
33 (...continued)
We also conclude that considering C.D.'s due process argument does not require us to
rule on "subtle evidentiary questions outside a factual context" as we would in the case
of a challenge to allegedly improper impeachment evidence. See Luce, 469 U.S. at 41.
34 Scott, 519 P.2d at 785 (quoting Jones v. Superior Court of Nevada Cty., 372
P.2d 919, 924 (Cal. 1962) (Peters, J., dissenting)).
35 Id. at 786 (quoting McConkey v. State, 504 P.2d 823, 826 (Alaska 1972)).
36 Seeid. (quoting McConkey,504P.2dat 826); Ramona R. v.Superior Court,
693 P.2d 789, 792 (Cal. 1985) ("Significant evidence [a juvenile may wish to present at
a waiver hearing] may well exist only in the knowledge of the juvenile. As to the
circumstances and gravity of the offenses alleged, the juvenile may be the only witness
who can present any mitigating circumstances for the court to consider.").
37 612 P.2d 990 (Alaska 1980).
38 Id. at 991 (internal citation omitted).
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----------------------- Page 14-----------------------
39
prior to his criminal trial. Although the superior court ruled that any parole hearing
testimony on McCracken's behalf could not be used against him, he elected to present
40 McCracken's attorney explained in an affidavit that he had advised
no evidence.
McCracken to not present a defense because the attorney thought the State would use any
presented information in the subsequent criminal trial.41 The parole board found
McCracken had violated his conditions of release, and he was remanded to finish serving
his original sentence.42 But he later was acquitted of the criminal charges.43 McCracken
petitioned for a writ of habeas corpus, alleging that holding "the revocation hearing prior
to the trial on the criminal charges forced him to make an unconstitutional election
between his due process right to present a defense at the hearing and his right against
compulsory self-incrimination."44 Ruling in McCracken's favor, we stated: "In the
interests of fairness, a parolee should not be forced to choose between remaining mute
at a revocation proceeding, thereby surrendering his right to present a defense, or
testifying at the revocation hearing and incurring the possibility of incriminating
45
himself."
By requiring a minor to choose between presenting relevant, testimonial,
amenability-to-treatmentevidenceor preservingtheprivilegeagainst self-incrimination,
39 Id.
40 Id.
41 Id. at 998.
42 Id. at 991-92.
43 Id. at 992.
44 Id. at 993 (internal citation omitted).
45 Id. at 997-98.
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----------------------- Page 15-----------------------
AS 47.12.100(c)(2) forces a minor into the same unfair dilemma described in
McCracken . And the statute creates an even greater danger of self-incrimination in a
juvenile waiver hearingthanis present in aparolerevocationhearing, because the burden
46 At a waiver hearing a minor
is on the minor to establish amenability to treatment.
choosing to present the best amenability-to-treatment evidence to protect the interest in
remaining in juvenile court may self-incriminate and hand the State evidence it can use
to convict the minor in subsequent adjudications or criminal proceedings. Requiring
such an election is "inconsistent with [our] constitutional values."47
As in McCracken we conclude that, for cases in which AS 47.12.100(c)(2)
applies, it is necessary to exercise our "inherent supervisory powers" to create an
exclusionary rule preventing the State - over the juvenile's objection - from using a
48 and the fruits of that testimony, at a
minor's juvenile waiver hearing testimony,
46 See AS 47.12.100(c)(2)(B); Resek v. State , 706 P.2d 288, 294 (Alaska
1985) ("In a forfeiture proceeding the danger of self-incrimination is even greater than
in a parole revocation hearing, since the burden of proof is placed on the claimant to
establish by a preponderance of the evidence that the seized property is not forfeitable.").
47 McCracken, 612 P.2d at 995 (quoting People v. Coleman, 533 P.2d 1024,
1030 (Cal. 1975)).
48 In McCracken we noted that the exclusionary rule applies "upon timely
objection" of the parolee. 612 P.2d at 998. A minor seeking to benefit from the
exclusionary rule similarly bears the burden of timely objecting to the State's offer of the
waiver hearing testimony at the subsequent juvenile adjudication or adult criminal
proceeding. See Moreau v. State, 588 P.2d 275, 280 (Alaska 1978) ("The exclusionary
rule is not the type of doctrine designed to protect against conviction of the innocent.
Rather, it is a prophylactic device . . . . justice does not generally require that it be
applied on appeal where it is not urged at trial or where new grounds for its invocation
are presented on appeal."); 1 KENNETH S. B ROUN ET AL ., M CCORMICK ON EVIDENCE
§ 52 (7th ed. 2013) ("[T]he general approach is that a failure to make a specific objection
at the time the evidence is proffered, is a waiver for appeal of any ground of complaint
(continued...)
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----------------------- Page 16-----------------------
49 50
subsequent criminal trial or adjudicatory proceeding in juvenile court. And, as in
McCracken, juveniles in such hearings must be advised in advance that testimony "may
51 We
not be admitted against [them] at a subsequent trial on the underlying offense."
leave to superior courts in the first instance to decide whether this exclusionary rule
should extend to other testimonial evidence presented by a minor at a waiver hearing.52
This exclusionary rule will mitigate much of a minor's risk in exercising
the due process right to present a defense at a waiver hearing. And it is consistent with
the policy underlying juvenile waiver hearings. A waiver hearing is not designed to
determine whether a minor is guilty; it is designed to determine whether a minor is
amenable to treatment.53 By increasing the likelihood that a minor will be able to offer
relevant evidence of amenability to treatment, this exclusionary rule will enable superior
courts to make better decisions in waiver proceedings.54
48 (...continued)
against its admission.").
49 McCracken, 612 P.2d at 998.
50 See In re Gault,387 U.S. 1, 55 (1967) ("We conclude that the constitutional
privilege against self-incrimination is applicable in the case of juveniles as it is with
respect to adults."), abrogation recognized by Allen v. Illinois, 478 U.S. 364 (1986).
51 612 P.2d at 998.
52 See id. at n.22 (discussing range of evidence that might be subject to
exclusionary rule); cf. id. at n.23 (discussing State's duty in later proceedings to show
its evidence was derived independently from evidence subject to exclusionary rule).
53 See AS 47.12.100(a).
54 Whether the State may use a minor's excluded testimony for the sole
purpose of impeachment is an issue not before us. But we emphasize that a minor's
truthful testimony is crucial to maintaining the integrity of the judicial process. United
(continued...)
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B. We Reject C.D.'s Argument That His Case Must Be Assigned To A
Different Judge On Remand.
C.D. argues that we should require that a different judge be assigned to his
case on remand. C.D. contends that the language in the superior court judge's waiver
order calls into question the judge's objectivity about the crimes. C.D. points out that
the court's waiver order describes the crimes as committed "in cold blood," characterizes
C.D.'s decision to kill his mother and sister as "deliberate and callous," and describes
C.D.'s crimes "at the high end of the scale on the 'seriousness' question." C.D. also
55
takes issue with the order comparing his case with C.G.C.
The order quoted C.G.C. -
"[w]e find it difficult to imagine a more frightening or egregious episode of unprovoked
56
violence than that established by the State's proof in this case" - and stated that the
words "apply here." C.D. analogizes his case to Donlun v. State; we remanded Donlun
for resentencing before a different superior court judge because the original judge
54 (...continued)
States v. Havens, 446 U.S. 620, 626 (1980) ("We have repeatedly insisted that when
defendants testify, they must testify truthfully or suffer the consequences."). Thus, other
courts have held that prior excluded testimony may be used to impeach a defendant's
"clearly inconsistent testimony" at a later proceeding. People v. Coleman, 533 P.2d
1024, 1044-45 (Cal. 1975) (holding prosecution could use revocation hearing testimony
to impeach or rebut clearly inconsistent testimony at later trial); People v. Macias, 941
P.2d 838, 847-49 (Cal. 1997) (holding that voluntary juvenile fitness hearing statements
may not be used as substantive evidence of guilt but are admissible for sole purpose of
impeachment during subsequent related trial).
55 702 P.2d 648 (Alaska App. 1985).
56 Id. at 651.
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"accused [the defendant] of perpetrating unspecified crimes and sentenced him, at least
partially, on the basis of th[ose] assumptions." 57
We reject C.D.'s bias argument because Donlun is inapposite and C.D.'s
contention that the judge cannot act as an impartial arbiter in this case is unpersuasive.
Unlike the judge in Donlun, there is no evidence that this judge based his decision on
material outside the record or that he is incapable of rendering a fair judgment.58 The
statements C.D. highlights as reflecting bias are part of the court's required findings
regarding the "seriousness" of C.D.'s crimes.59 It was acceptable to consider whether the
crimes were committed in the heat of passion or "in cold blood" in evaluating their
seriousness.60 And C.D.'s case also is, in fact, similar to C.G.C.61 Even if the judge has
formed an opinion of C.D., "it is acceptable for a judge to have an opinion of a party as
a result of something learned in an earlier proceeding, provided that the judge still can
act as an impartial arbiter."62 The waiver order makes clear that the most important
factor relied on in granting the State's petition was that C.D. offered no explanation for
his conduct. The statements C.D. points to as demonstrating bias do not indicate the
57 550 P.2d 369, 371 (Alaska 1976).
58 See id.
59 See AS 47.12.100(b); Alaska Delinquency Rule 20(d)(1).
60 Cf. AS 11.41.115(a) (providing an affirmative defense in a murder
prosecution "that the defendant acted in a heat of passion, before there had been a
reasonable opportunity for the passion to cool, when the heat of passion resulted from
a serious provocation by the intended victim").
61 See 702 P.2d at 649.
62 Amy S. v. State, Dep't of Health & Soc. Servs., Office of Children's Servs.,
440 P.3d 273, 282 n.31 (Alaska 2019).
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judge would be unwilling to consider an explanation for C.D.'s conduct, should C.D.
63
offer one at a subsequent hearing.
V. CONCLUSION
For the reasons stated above, and in our previous order, we VACATED the
superior court's waiver order and REMANDED for further proceedings before the
original superior court judge.
63 Because we already remanded the case for further proceedings, we decline
to reach C.D.'s argument that the superior court erred by not granting his request to hold
its waiver decision in abeyance to allow more time to observe his progress in custody.
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