POHNPEI LAW REPORTS
VOL. 3A
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IN THE MATTER OF
A JUVENILE OFFENDER
Pohnpei Criminal Appeal No. 8-88
Appellate Division of the Pohnpei Supreme Court
November 30, 1989
Appeal from a determination and order of the Trial Division of the Pohnpei Supreme Court to waive juvenile jurisdiction and treat a juvenile offender in all respects as an adult under the regular criminal proceedings. The juvenile appellant contended that (1) in order for the trial court's ruling to treat him as an adult under the regular criminal procedure to be constitutionally valid, the Government must produce evidence to show that the juvenile-appellant was "ripe" for transfer to the criminal process; (2) where the delinquent conducts complained of were misdemeanors and were not adjudicated, the trial court could not arbitrarily make a finding that the juvenile-appellant had committed serious offenses; and (3) where the Government did not produce evidence in support of its motion for transfer, the trial court could not summarily order the juvenile-appellant to be transferred to the criminal process. The Government, in defending the trial court's ruling, emphasized the great latitude granted to the Court to exercise its discretion to "treat an offender 16 years or older in all respects as an adult if in the Court's opinion the offender's physical and mental maturity so justifies," [as provided in 15 TTC 1].
The Appellate Division of the Pohnpei Supreme Court, comprising EDWEL H. SANTOS, Chief Justice; YOSTER CARL, Associate Justice; and JUDAH C. JOHNNY, Associate Justice, dismissing the appeal, held
(1) that in the exercise of the discretion granted by the statute (15 TTC 1) and in compliance with the due process clause of the Constitution of Pohnpei, a judge ruling on a motion to treat a juvenile offender 16 years or over as an adult must, at a minimum, hold a hearing (to provide an opportunity for counsel, parents of the child, the child himself, and other concerned persons to bring
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forth any evidence for or against the exercise of the judge's discretion), conduct other appropriate examinations (in court or out of court), and make findings to support his opinion that the offender warrants treatment as an adult;
(2) that within the jurisdiction of Pohnpei, the common practice had been that where a juvenile information charging an offender 16 years or older of any delinquent conduct was brought the Govvernment would make a motion, written or oral, or the Court might initiate such motion, that the offender be treated as an adult, based on common factors like the physical nature of the offender, the nature and frequency of the offense or offenses charged or committed, the offender's previous delinquency records, his family history, and whether there was reason to believe that the juvenile's mental capacity was attributable to that of a mature person. The Court would then hear arguments on the motion where the defense counsel, including the juvenile's parents or guardian might object to the motion and bring in evidence of physical and mental incapacity of the child to counteract the Government's motion. The Court would conduct its own examination of the juvenile, make its findings and ruling on the motion;
(3) that the Government had the burden of proving the physical and mental sufficiency of the juvenile;
(4) that the failure of the juvenile-appellant to make any issue of and to object to the Government's alleged grounds that the juvenile was 17 years and 9 months old at the time he was apprehended, that the alleged delinquent acts were committed within the span of three months, that the juvenile being an enrollee in the GED program had sufficient mental capacity to understand and to appreciate the offensive acts complained of him, amounted to a waiver;
(5) that the trial court was justified in its finding and ruling, in the absence in the record of the juvenile-appellant's counsel's objection to those facts;
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(6) that the Government did not need to bring testimonial evidence to support its alleged facts when counsel forthe juvenile did not show any objection to those facts, and the judge was free to consider them in making his determination to waive juvenile jurisdiction;
(7) that the juvenile's counsel had the burden and the opportunity during the hearing to make it known to the trial judge and to request a postponement of the proceedings, if necessary, so as to enable his expert witness, if he had one to call upon to prove by testimony or affidavits the physical and mental incapacity or immaturity of the juvenile-appellant;
(8) that where the Government, in a juvenile proceeding of this nature, produced facts to prove the physical and mental maturity of an offender 16 years and over forthe purpose of waiver of jurisdiction, the burden shifted to the juvenile to prove his physical and mental incapacity or immaturity; and the standard of proof required was "substantial evidence";
(9) that where the record showed nothing on the issue of proof by expert witness of the physical and mental incapacity of the juvenile-appellant nor the burden of proof discharged by the juvenile-appellant, the appellate court had nothing to review but to defer to the finding and conclusion of the trial court;
(10) that the juvenile-appellant's contention that the delinquent acts complained of were misdemeanors and were never adjudicated fell to the ground;
(11) that 15 TTC 1 did not require adjudication of delinquency as a condition precedent to a waiver of jurisdiction order;
12) that the minimum procedural standard of satisfying the trial judge: opinion whether to waive jurisdiction of an offender 16 years or older, and to hold same over to be tried under the regular criminal
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procedure as seen in the appeal satisfied the due process requirement of the Constitution of Pohnpei; and
(13) that the stringent requirement of producing evidence by the Government, presumably expert testimony, to prove the physical and mental maturity of a juvenile offender 16 years orolder, as suggested by the juvenile-appellant's counsel was not necessary under the state of the law applicable in Pohnpei State.
1. Criminal Law - Criminal Procedure - Juvenile Offenders - Treatment as Adults
An offender 16 years of age or over may be treated in all respects as an adult if in the opinion of the Court his physical and mental maturity so justifies (15 TTC 1)
2. Criminal Law - Criminal Procedure - Juvenile Offenders - Treatment as Adults - Hearing - Evidence - Burden of Proof
Before the trial judge can legally rule that a juvenile offender be treated as an adult there must be a hearing, and the Government bears the burden of proof to establish that the juvenile is physically and mentally mature.
3. Criminal Law - Criminal Procedure - Juvenile Offenders - Treatment as Adults - Judges - Discretion - Hearing
In the exercise of the discretion granted by statute, and in compliance with the due process clause of the Constitution of Pohnpei, a judge ruling on a motion to treat a juvenile offender 16 years or over as an adult must, at a minimum, hold a hearing (to provide an opportunity for counsel, parents of the child, the child himself, and other concerned persons to bring forth any evidence for or against the exercise of the judge's discretion), conduct other appropriate
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examinations (in court and out of court), and make his findings to support his opinion that the offender warrants treatment as an adult.
4. Criminal Law - Criminal Procedure
- Juvenile Offenders - Treatment as Adults - Hearings - Pohnpei Practice
The common practice within the jurisdiction of Pohnpei is that where a juvenile information charging an offender 16 years or older of any delinquent conduct is brought, the Government makes a motion, written or oral [or the court may initiate such motion], that the offender be treated as an adult based on common factors like physical nature of the offender, the nature and frequency of the offense or offenses charged or committed, the offender's previous delinquency records, his family history, and whether there is reason to believe that the juvenile's mental capacity is attributable to that of a mature person. The Court then hears arguments on the motion where the defense counsel, and also the juvenile's parents or guardian may object to such motion and bring in evidence of physical and mental incapacity of the child to counteract the Government's motion. The Court conducts its own examination of the juvenile, and makes its findings and ruling on the motion.
5. Criminal Law - Criminal Procedure - Juvenile Offenders - Treatment as Adults - Evidence - Burden of Proof
Where the Government states facts supporting its motion that a juvenile offender was 17 years and 9 months old at the time he was apprehended for the commission of certain delinquent acts, that the delinquent acts charged were committed within the span of three months, that the juvenile being an enrollee in the GED program, had sufficient mental capacity to understand and appreciate the offensive acts complained of him, this is sufficient to satisfy the Government's burden of proof for the juvenile offender to be treated as an adult.
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6. Criminal Law - Criminal Procedure - Evidence
Where facts are alleged by the Government in support of a motion that a juvenile offender be treated as an adult and those facts are made out without issue or objection the trial judge is free to consider those facts in making his determination to waive juvenile jurisdiction.
7. Criminal Law - Criminal Procedure - Evidence - Expert Testimony
The burden to call upon expert witnesses to prove the physical and mental incapacity or immaturity of a juvenile offender so as to be treated as such is on the juvenile's counsel.
8. Criminal Law - Criminal Procedure - Juvenile Offenders - Treatment as Adults - Evidence - Burden of Proof
Where the Government, in juvenile proceedings, has produced facts to prove the physical and mental maturity of the offender who is 16 years or over for the purpose of waiver of juvenile jurisdiction, the burden shifts to the juvenile to prove his physical and mental incapacity or immaturity.
9. Criminal Law - Criminal Procedure - Juvenile Offenders - Treatment as Adults - Evidence - Standard of Proof
The standard of proof required to show the physical and mental incapacity or immaturity of a juvenile offender to be treated as an adult is "substantial evidence".
10. Appeal and Error - Criminal Law - Evidence - Expert Testimony
Where at a trial counsel intended to call upon expert testimony to prove the physical and mental incapacity or immaturity of a juvenile offender but the record available failed to show that he made his intention known to the trial court, and the juvenile did not
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discharge the burden of proving such facts, there is nothing on the record on that issue and the appellate court has nothing to review but to defer to the finding and conclusion of the trial court.
11. Statutes - Construction - Criminal Law - Criminal Procedure Juvenile Offenders - Treatment as Adults
15 TTC 1 does not require adjudication of delinquency as a condition precedent to a waiver of jurisdiction order.
12. Appeal and Error - Criminal Law - Criminal Procedure - Juvenile Offenders - Treatment as Adults - Due Process
The minimum procedural standard of satisfying the trial judge's opinion whether to waive juvenile jurisdiction of an offender 16 years or older and to hold him over to be tried under the regular criminal procedure as [seen in this appeal] practiced in the jurisdiction of Pohnpei satisfies the due process requirement of the Constitution of Pohnpei.
13. Criminal Law - Criminal Procedure - Juvenile Offenders - Treatment as Adults - Evidence - Expert Testimony
Under the law applicable in the jurisdiction of Pohnpei there is no stringent requirement that the Government produce evidence, presumably on expert testimony, to prove the physical and mental maturity of a juvenile offender 16 years or older.
Counsel for the Juvenile-Appellant : Ignacio Soumwei,
Trial Counselor, on the Brief,
and Kletus James,
Trial Counselor, argued the appeal.
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Office of the Public Defender, Pohnpei
Counsel for the State-Appellee: Dickson Santos,
State Prosecutor
Office of the State Attorney, Pohnpei.
CORAM: Edwel H. Santos, Chief Justice
Yoster Carl, Associate Justice
Judah C..Johnny, Associate Justice
EDWEL H. SANTOS, Chief Justice
I. Procedural History
Juvenile Informations in the above three juvenile cases were filed on October 19,1988, in the Trial Division of this Court charging the juvenile of certain alleged delinquent conducts occurring successively in a span of three months as follows:
Case No. 64-88, house breaking (S.7-19 of the Pohnpei State Criminal Code), at Pali Ais, Nett, on July 25, 1988.
Case No. 62-88, (a) consumption of alcoholic beverages
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while under the age of 21 (S.3-9 (3) of the Pohnpei State Code) and (b) disturbing peace at the Community College of Micronesia Boys' Dormitory on August 28, 1988, in Kolonia; and Case No.63-88, consumption of alcoholic beverages while underthe age of 21 (S.39 (3) of the Pohnpei State Code), on September 24, 1988, at Nanpohnmal.
On the same date of filing, the Government, pursuant to Section l of the Juveniles statute (15 TTC), filed its motion to treat the juvenile in all three cases as an adult. The Government assigned four grounds supporting its motion:
(1) the juvenile would observe his 18th birthday on October 29, 1988;
(2) the delinquent conducts allegedly committed by the juvenile in the three successive acts indicate conducts attributable to a grown up adult;
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(3) the juvenile was attending high school1, thus justified his mental maturity to know and to appreciate the consequences of his conduct; and
(4) the juvenile's physical makeup was like that of a mature person and all the delinquent acts allegedly committed by him were attributable to those of an adult.
On November 4, 1988, the trial court held hearing on the Government's motion to treat all the three juvenile cases relating to the juvenile as regular criminal cases. Certified record of the hearing indicates that at the November 4, 1988 hearing, counsel for the juvenile also made an oral motion to the Court stating, " keseupen paliwar ohng mehn pahn kadip menet en wiawi . . ." (CR p.2). In response to the request, the Certified Record went on and said, " . . . oh Mwolen Kopwung ketin doula loale oh ketin diaradahr me mehnpahn kadip menet wia mwekid kehlail kei oh kohiek nin duwen aramas palan." Id.
Other than the above request made by the juvenile's counsel, there is nothing in the record to show that he objected to those representations made in the Government's motion.
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In its waiver order the trial court made the following as its findings:
"Information about the delinquent conducts of the juvenile . . . . had been filed in this Court on October 19, 1988, alleging that the juvenile had committed the delinquency acts complained of in PJUV2 Nos. 62-88, 63-88, and 64-88." (Court Order pp 1-2).
"The Court then listened to oral arguments respecting the Government's motion to transfer these juvenile cases to be treated under the regular criminal procedures for the reasons that the acts allegedly committed by the juvenile were acts normally committed by mature persons, that the juvenile's physical make up appears to be that of a mature person, and that the juvenile would be 18 years of age on October 29, 1988." (Id., p.2)
On the basis of the findings above, the trial court dismissed
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all the three juvenile cases against the juvenile and ordered that the Government refile the charges against the juvenile under the regular criminal proceedings.
From the findings and conclusion of the court, the Juvenile, on November 17, 1988, appealed to this Court. He assigned two errors in his notice of appeal, both of which relate to the "lack of evidence" to support the trial court's findings and conclusion, or putting it in a different context, "the Government failed to produce any evidence to support the Court's finding of physical and mental maturity of the juvenile."
In his brief, the juvenile-appellant made three contentions which support his argument to reverse the trial court's ruling and order. These contentions are, (1) that in order for the trial court's ruling to treat the juvenile as an adult under the regular criminal procedure to be constitutionally valid, the Government must produce evidence to show that the juvenile-appellant is "ripe" for transfer to the criminal process; (2) that where the delinquent conducts complained of were misdemeanors and were never adjudicated, the trial court could not arbitrarily make a finding that the juvenile-
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appellant had committed serious offenses: and (3) where the Government did not produce evidence in support of its motion for transfer, the trial court could not summarily order the juvenile-appellant to be transferred to the criminal process. The juvenile-appellant based his contentions upon reliance on Kent v. United States, 86 S. Ct. 1045 and Marbou v. Termeteet, 5 TTR 655.
In defending the trial court's ruling, the Government emphasized the great latitude granted to the court to exercise its discretion to "treat an offender 16 years or older in all respects as an adult if in the court's opinion the offender's physical and mental maturity so justifies."
II.
Discussion.
The juvenile-appellant's contentions raise the problems of substantial concern as to the construction of and compliance with the Juveniles Proceedings Act, particularly 15 TTC 1, [12 FSMC 1101]. This section of the Act in question reads as follows:
"Sec. 1. Adoption of flexible procedures by courts. In cases involving offenders under the age of eighteen years, courts shall adopt a flexible procedure based on the accepted practices of
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juvenile courts of the United States, including insofar as possible the following measures:
(1) Report by a welfare or probation officer in advance of trial;
(2) Detention, where necessary, apart from adult offenders;
(3) Hearing informally in closed session;
(4) Interrogation of parents or guardians and release in their custody if appropriate.
An offender sixteen years of age or over may, however, be treated in all respects as an adult if in the opinion of the court his physical and mental maturity so justifies."
[1] The particular portion of the statute which we must address here is the last paragraph: "An offender sixteen years of age or over may, however, be treated in all respects as an adult if in the opinion of the court his physical and mental maturity so justifies."
The juvenile-appellant attacks the trial court's ruling and order on a number of statutory and constitutional grounds. He
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contends that the trial court's waiver of juvenile jurisdiction is defective because the Government failed to produce any evidence to show that the juvenile-appellant was physically and mentally mature; that the alleged delinquent acts were misdemeanors and were not adjudicated by the trial court as prerequisites to a ruling to treat such offender as an adult; and that the trial court could not summarily order the juvenile-appellant to be treated as an adult under the regular criminal process without evidence in support thereof.
[2] The juvenile-appellant's contentions point to the proposition that there must be a hearing and the Government bears the burden of proof to establish that the juvenile-appellant is physically and mentally mature and that a judge shall make his finding based on the sufficiency of such proof before the judge can legally rule that the juvenile be treated as an adult. We accept this proposition as a valid proposition.
[3] In the exercise of the discretion granted by the statute, supra, and in compliance with the due process clause of the Constitution of Pohnpei, a judge ruling on a motion to treat a
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juvenile offender sixteen years or over as an adult must, at a minimum, hold a hearing (to provide an opportunity for counsel, parents of the child, the child himself, and other concerned persons to bring forth any evidence for or against the exercise of the judge's discretion), conduct other appropriate examinations (in court or out of court), and make his findings to support his opinion that the offender warrants treatment as an adult. This procedure, in our opinion, satisfies the basic requirements of due process and fairness, as well as complies with the judge's exercise of discretion granted by the statute. 15 TTC 1.
The statute in question, however, lacks particularity as to the scope and extent of a hearing that a judge ought to hold prior to making his determination to waive juvenile jurisdiction and to treat an offender 16-year old or over as an adult. We, however, are mindful of the statutory policy and mandate that juvenile proceedings are civil in nature and that in dealing with juvenile cases, courts are to adopt flexible procedures [not inconsistent with law]. The common practice within this jurisdiction has been that where a juvenile information is brought charging an offender 16 years or
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older of any delinquent conduct, the Government makes a motion, written or oral [the court may initiate such motion], that an offender 16 years or over be treated as an adult based on common factors like the physical nature of the offender, the nature and frequency of the offense or offenses charged or committed, the offender's previous delinquency records, his family history, and whether there is reason to believe that the juvenile's mental capacity is attributable to that of a mature person. The Court then hears arguments on the motion where the defense counsel, and also the juvenile's parents orguardian, may object to such motion and bring in evidence of physical and mental incapacity of the child to counteract the Government's motion. The Court conducts its own examination of the juvenile, makes its finding, and ruling on the motion.
[5-6] We note that the procedure above described was followed by the trial court in this case. We also note that the record available fails to indicate that the juvenile-appellant's counsel ever objected to the grounds assigned in support of the Government's motion, except that counsel for the juvenile-appellant "requested
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that an examination of the juvenile be made to determine his physical and mental sufficiency". The juvenile-appellant's counsel contends that the Government bears the burden of proving the physical and mental sufficiency of the juvenile. We agree with this contention. However, under the circumstances of the case, we hold that the Government did satisfy this burden by stating the facts supporting its motion that the juvenile was 17 years and 9 months old at the time he was apprehended in Juv. No.64-883, that the alleged delinquent acts committed were committed within the span of three months, that the juvenile, being an enrollee in the GED program, had sufficient mental capacity to understand and to appreciate the offensive acts complained of him. The record available shows that the juvenile-appellant's counsel made no issue of the Government's alleged grounds, thus we must consider the juvenile's counsel's failure to object as a waiver. We conclude that the trial court was justified in its finding and ruling, in the absence in the record of the juvenile-appellant's counsel's objec-
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tion to those facts.
We hold that the Government did not need to bring testimonial evidence to support its alleged facts when counsel for the juvenile did not show any objection to such alleged facts. Those facts, though alleged, were then made out without objection, and the trial judge was free to consider them in making his determination to waive juvenile jurisdiction.
[8-10]
If the juvenile's counsel had some expert witnesses in mind to be called upon to prove the physical and mental incapacity or immaturity of the juvenile, he had the burden and the opportunity at the November 4, 1988, hearing to make that known to the trial judge and to request a postponement of the proceedings if necessary so as to enable his expert witnesses to testify or to submit affidavits of physical or mental incapacity of the juvenile-appellant. Where the Government, in a juvenile proceeding of this nature, produces facts to prove the physical and mental maturity of an offender 16 years and over for the purpose of waiver of juvenile jurisdiction, the burden shifts to the juvenile to prove his physical
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and mental incapacity or immaturity. And the standard of proof required is "substantial evidence ". The record available in the case fails to show that the juvenile-appellant's counsel made his intention known to the trial court, nor that the juvenile-appellant fulfilled that burden. We must presume therefore that he neither made such intention known, northat he fulfilled his burden. Where the record shows nothing on that issue, the appellate court has nothing to review but to defer to the finding and conclusion of the trial court.
The juvenile-appellant's counsel cites one United States case, Kent v. United States, 86 S. Ct. 1045 (1966), and one Trust Territory case, Marbou v. Termeteet, 5 TTR 655 (1971), in support of his argument. It is therefore appropriate that a brief discussion about those cases be made here for comparison purposes.
Kent is a District of Columbia case. The statute construed in Kent as compared to ours reads as follows:
"If a child sixteen years of age or older is charged with an offense which would amount to a felony in the case of an adult, or any child charged with an offense which if committed by an adult is
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punishable by death or life imprisonment, the judge may, after full investigation, waive jurisdiction and order such child held for trial under the regular procedure of the court which would have jurisdiction of such offense if committed by an adult; or such other court may exercise the powers conferred upon the juvenile court in this subchapter in conducting and disposing of such cases." D. C. Code S. II-914 (1961), subsequently S. 11-1553 (Supp. IV. 1965). (Emphasis supplied).
The statute in question in our jurisdiction as stated earlier reads,
"An offender sixteen years of age or over may, however, be treated in all respects an an adult if in the opinion of the court his physical and mental maturity so justifies." 15 TTC 1, para. 2.
As is seen in the two statutes, two distinguishing features are eminent: (i) The District of Columbia statute mandates "full investigation" by the trial judge before determining whether the trial court should waive jurisdiction and hold over the case to be tried under the regular criminal procedures. In the Pohnpei statute, what is required before a waiver is that the trial judge must satisfy
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his mind that the juvenile's physical and mental maturity so justifies the juvenile to be held over to be tried as an adult; (ii) the District of Columbia statute requires the alleged offense to be a felony or be punishable by death or life imprisonment so as to justify waiver. The Pohnpei statute makes no distinction between felony or misdemeanor. In considering the weight of the.authorities argued by counsel, particularly foreign authorities, great care should be taken by counsel as well as by this Court in analyzing the similarities and differences in approach and usage which led to the formulation of those foreign authorities in respect of their applicability and suitability for adoption into our local jurisdiction so that error in judgment to adopt principles not thoroughly scrutinized could be avoided. On the basis of the distinctions noted in the two. corresponding statutes, the juvenile-appellant's contention that the delinquent acts complained of were misdemeanors and were never adjudicated falls to the ground. 15 TTC 1 does not require adjudication of delinquency as a condition precedent to a waiver of jurisdiction order.
[11] In any event, and as we have said earlier, to formulate
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his opinion as to whether he should waive juvenile jurisdiction in a case before him, a trial judge should consider such factors like holding a hearing (to provide an opportunity for counsel, parents of the child, the child himself, and otherconcerned personsto bring forth any evidence for or against the exercise of the judge's discretion), conducting other appropriate examinations (in court or out of court), and to make his findings supporting his opinion that the offender (being sixteen years or olderwith physical and mental maturity) warrants treatment as an adult.
[12] The procedural standard requiring "full investigation" as mandated by the District of Columbia statute seems to us to be higher than the procedural standard "if in the opinion of the court the juvenile's physical and mental maturity so justifies" imposed by the Pohnpei statute. The juvenile-appellant's counsel's argument that we adopt the procedural standard set by the Kent court is well taken. However, we hold that that standard is not required by the Pohnpei statute. We hold that the minimum procedural standard of satisfying the trial judge's opinion whether to waive jurisdiction of an offender sixteen years or older and to hold same over to be
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tried under the regular criminal procedure as is seen in this appeal satisfies the due process requirement of the Constitution of Pohnpei.
It is
interesting to note, however, that the U.S Court of Appeals in 1960 construed the District of Columbia statute, supra, and stated, " . . . for purposes of a determination as to waiver of jurisdiction, that no formal hearing is required and that the "full investigation" required of the Juvenile Court need only be such " as is needed to satisfy that court . . . on the question of waiver. Wilhite v. United States, 281 F. 2d 642 (1960). This was the state of the law in the District of Columbia in 1960. The authority of Wilhite was later undermined by certain other cases, however. And in concluding its opinion in Kent with respect to waiver of juvenile jurisdiction, the United States Supreme Court said,
"as a condition to a valid waiver order, petitioner was entitled to a hearing, including access by his counsel to the social records and probation or similar reports which presumably are considered by the court, and to a statement of reasons for the Juvenile Court's decision. We believe that this result is required by the statute read in the context of constitutional principle relating to due process and the assistance of counsel." 86 S.Ct. 1055
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The Trust Territory case of Marbou v. Termeteet also cited by the juvenile-appellant is distinguishable. One of the defendants in Marbou, namely Dachelbai, was under eighteen years of age and was initially charged in a regular criminal instead of a juvenile information along with his other codefendants. Bail was set and he appealed, arguing that under 15 TTC 1, he (Dachelbai), as a matter of right, was entitled to be charged only as a delinquent. The trial judge held the initial filing of a criminal information as to Dachelbai was lawful. (5 TTR 657). The Appellate Division of the Trust Territory High Court construed 15 TTC 1 saying.
"Trust Territory Code, Title 15, Section 1, is hereby construed to encompass all juveniles, not to be restricted to those of age sixteen or older whom the government elects, without further showing, to call juvenile. Under this construction, all cases involving a person who has not yet attained his eighteenth birthday must be initially prosecuted under an information of delinquency, as provided in Trust Territory Rules of Procedures for Juvenile Delinquency Proceedings, Rule 3. The government may elect to move fortransferto criminal proceedings, or the Court may initiate
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such a motion; upon a showing of sufficient maturity, and a finding of such maturity by the Court, a criminal information may be substituted for the information of delinquency and the regular criminal processes shall become operative." 5 TTR 663, citing Kent v. United States, 383 U.S. 541, 86 S. Ct. 1045. Under the Trust Territory Appellate Court's construction of the statute, the procedural standard for waiver includes (1) filing of information of delinquency, (2) Government's election to move for transfer to criminal proceedings (the court also has discretion to initiate such motion), (3) a showing of sufficient maturity, and (4) a finding by the court of the maturity of the offender, physically and mentally.
Other Trust Territory cases do recognize the wide latitude within which the trial court may exercise its discretion to treat an offender between sixteen and eighteen years as an adult. In the case, Santos v. Trust Territory, 5 TTR 607 (1972), the Court in construing 11 TTC 6 ("The provisions of this section, however, shall not prevent proceedings against and disciplining of any person under 18 years of age as a delinquent child.") in the light of 15 TTC 1 said, "it is clear that a defendant between age 16 and
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age 18 may be treated as an adult or may be afforded juvenile delinquent proceedings at the discretion of the court." (5 TTR 609), Title 15, Section 1 of the Trust Territory Code "gives a court discretion only to treat `an offender sixteen years of age or over' in all respects as an adult if, in the opinion of the court, his physical and mental maturity so justifies, but allows the court no such discretion as to a fifteen-year-old." Celis v. Trust Territory, 3 TTR 237, 242 (1967).
[13] This Court approves the construction of 15 TTC 1 as construed by the Trust Territory Court, as above, and upon consideration of the record available in the case before us, we conclude that the trial court below made no error in its determination and order to treat the juvenile-appellant here as an adult. The stringent requirement of producing evidence by the Government, presumably on expert testimony, to prove the physical and mental maturity of a juvenile offender sixteen years or older, as suggested by the juvenile-appellant's counsel is not necessary underthe state of the law applicable in this jurisdiction.
Appeal DISMISSED.
So Ordered, 30 November 1989.
FOOTNOTES:
1. At the oral argument of the appeal the Prosecutor clarified that the juvenile-appellant was an enrollee in the General Education Development (GED) program offered at the Community College of Micronesia.
2. PJUV refers to Pohnpei Juvenile cases.
3. When Juvenile Informations were filed on October 19, 1988, the juvenile-appellant was ten days short of his 18th birthday. On October 29, 1988, he was 18 years old.