State v. J.D.S.

¶1with whom COMPTON, Justice joins dissenting.

¶2In its “Memorandum of Decision Denying Waiver” the superior court concluded in part that “based upon the assumption that [the minor] has consented to treatment through age 20, I find that he is amenable to treatment as a child.” In light of this finding I am of the view that the case should be remanded to the court of appeals with directions to remand to the superior court. The purpose of this remand would be to afford the superior court the opportunity to clarify its “Memorandum of Decision Denying Waiver.” As it now stands the superior court’s decision lacks sufficient clarity to provide an appellate court with a clear understanding of the basis of its decision.1

¶3I agree that consideration of the question of whether rehabilitation will be accomplished if juvenile jurisdiction is waived is irrelevant to the AS 47.10.060(d) determination of whether a minor probably can be rehabilitated by treatment as a juvenile before reaching twenty years of age. I would hold that in formulating its clarifying decision on remand the superior court should enter unambiguous and internally consistent findings on the issue of waiver. Given the importance of this determination *1280both to society and to the individual minor I consider it preferable to require the superi- or court to clarify its waiver decision and in so doing to employ proper criteria. I think it inappropriate to direct the entry of an order waiving juvenile jurisdiction in the circumstance where the superior court in part found that J.D.S. is amenable to treatment as a child.

¶4MEMORANDUM OF DECISION DENYING WAIVER

¶5This case concerns the death of Lawrence M. Whimple, a clerk at a Qwik Stop store on July 3, 1984, in the vicinity of Arctic Boulevard and Tudor Road in the Municipality of Anchorage.

¶6Participating in the homicide of Mr. Whimple were Saathoff, date of birth July 18, 1970 and M.L.P., date of birth July 24, 1967. The decedent was shot five times with a .357 handgun which had been stolen by the boys from Saathoff's home a few days earlier.

¶7The actual shooting of Mr. Whimple was performed by M.L.P. Both juveniles participated in planning the robbery of the store with the knowledge that the clerk on duty would be Mr. Whimple, whom they knew and who knew them. Both juveniles are equally responsible for the homicide in a moral as well as legal sense with Saa-thoff being the instigator.

¶8The homicide of Mr. Whimple was a planned robbery and murder. The youths intended to rob the victim and then to shoot him to avoid the presence of witnesses. Their plan was executed.

¶9There is probable cause to believe that both juveniles committed the crimes of first degree robbery and first degree murder.

¶10Saathoff’s history dating back from these offenses includes on July 2, 1984 in the evening pointing a loaded .357 at a peer who was playing tag with his friend and saying “if you move one more step, I will shoot off your balls”; on June 30, 1984, holding up a paperboy at gunpoint and mentioning that he could kill the paperboy and his companion; burglary of his parents’ home during which the .357 and two other guns were stolen and shots were fired inside the residence; skipping school and being involved in many fights at school, acting in a “head strong” manner and encouraging others to be truant; in May, 1983, after attacking and cutting another boy with a knife stating to an adult who intervened, “I should have just killed him”; on April 16, 1983 biting and hitting the counselor at the Alaska Children’s Services shelter; and having a well established pattern of running away from home.

¶11During the police interview Saathoff was matter-of-fact and not emotional in describing the victim’s death and appeared to be self-satisfied over his role in the crimes. He and M.L.P. joked about the shooting and death of Mr. Whimple. They returned to the Qwik Shop to see what was happening a while after the crimes. He appeared to be “wise to the ways of the world” during his police interview.

¶12Immediately after the crimes Saathoff and M.L.P. took a taxi from a restaurant to the vicinity of M.L.P.’s home where both were staying. Saathoff was described by the taxi driver as being hyper, cocky, outgoing, making decisions for both boys and he asked her if she had any “protection” (mace, knife or gun).

¶13Saathoff has been classified as learning disabled and emotionally disturbed, he refuses to accept the consequences of his actions and when he cannot have his own way, he loses control. He operates on the revenge theory having to get even for any real or imagined slight. He does not act impulsively but with a plan. He responds to confrontation by becoming threatening. He provokes his peers so no one is close to him.

¶14It is typical of Saathoff to project the responsibility for his actions on to others and when confronted about his actions to vent his anger on to the one confronting him. He becomes threatening when forced to deal with his actions and often loses control and then takes a long time to regain self-control. He never admits to being wrong.

¶15The psychiatric and psychological evidence established that Saathoff is suffer*1281ing from a conduct disorder, “undersocial-ized and aggressive,” that he is resentful of authority, has superficial emotional ties to others, has difficulty in forming relationships, lacks conscience, is without internal controls, Saathoff will only do well if closely supervised which is borne out by his behavior, when his father is at home.

¶16The chance that Saathoff will be rehabilitated by age 20 is not good. He is underso-cialized, aggressive, distractable, hyperactive, has no capacity to delay gratification and when confronted, acts aggressively. The onset of his antisocial behavior was very early, age nine or ten. There is no evidence that he wants to change.

¶17Despite the dismal outlook for Saathoff s treatment by age 20, I must look at the alternatives. If the juvenile is treated as an adult, he will be sentenced to a possible thirty years to serve, the same as his accomplice is subject to pursuant to a plea bargain. I know of no treatment he will receive in the adult system which would give him any opportunity to internalize a value system that would give any degree of assurance that he would act responsibly in an unstructured setting. After serving whatever portion of thirty years that he might have to serve, I believe Saathoff would constitute as great a danger to society as he does today.

¶18Society’s best opportunity to be protected from the actions of which Saathoff has demonstrated his capacity is for him to be dealt with in the juvenile justice system where he may be classified to the closed treatment unit at McLaughlin Youth Center if deemed appropriate by the Commissioner of Health and Social Services, the court having no authority in that decision. In the closed treatment unit an effort would be made to instill a value system which would control Saathoff even after he is released from custody.

¶19Therefore, based upon the assumption that Saathoff has consented to be treated through age 20, I find that he is amenable to treatment as a child.

¶20An additional reason for retaining Saa-thoff in the juvenile system is that he is only 14 years old, has not begun to mature, and has the appearance of an 11-year old. Confining an immature boy among adults is inappropriate and would necessitate solitary confinement by the Department of Corrections. Also, no information was presented about programs available in the adult system for youthful offenders and from my prior experience I know of nothing like the closed treatment unit program at McLaughlin Youth Center which offers an opportunity for rehabilitation of juvenile delinquents.

¶21Therefore, because of the paucity of programs available in the adult system and the only viable program being available for juvenile delinquents, I have weighted my decision on amenability toward the juvenile system. I am not optimistic of success in this case but find a denial of waiver to be in both Saathoff and society’s best interest.

¶22DATED at Anchorage, Alaska, this 19th day of November, 1984.

¶23/s/ Victor D. Carlson

¶24Victor D. Carlson

¶25Superior Court Judge