# Petition for Writ of Certiorari — Kabanuk v. Minnesota

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1985
- **Citation:** 474 U.S. 846

## Text

(\) Office-Supreiic Court, us]

85-104 FILED

JUL 18 1985

No. ALEXANDER L STEVAS,

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1985

DERRICK KABANUK,
Petitioner,
vs.
STATE OF MINNESOTA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO
THE COURT OF APPEALS OF
THE STATE OF MINNESOTA

WILLIAM J. GATTON

808 E. Franklin Avenue

Minneapolis, MN 55404
(612) 871-4886

COUNSEL FOR PETITIONER

QUESTION PRESENTED

Whether an accused juvenile, in
the context of a state juvenile delin-
quency prosecution, is denied due
process of law by a procedure which
permits the determination of guilt to
be made by a judge who did not preside
at the trial nor hear the testimony, but
whose decision is based upon a review
of the record of an earlier hearing

conducted before a referee?

TABLE OF CONTEN''S

Page
PPE ERO PEOSENCEG. . 22s cc ccccsccs i
Bemee OF AVUENOTACISS. 2.2. cc cccvcves ii
EE CEO cece case eseeesenes 1
URE s Behe eee eesesssececes 2
Constitutional and
BEMGUCOEY PEOVIBSAONB. 0 oc cece vcces 2
Statement of the Case............ 6

Reasons for Granting the Writ.... 12

SE ee 30

TABLE OF AUTHORITIES

Court Decisions

Barber v. Page,
EE OR OR 18

Breed v. Jones,
we ES DS Ee) ree 24

Brooks v. Tennessee,
ee ee COUPEE pe eke ce ss eeness 19

California v. Green,
EE ky | 18

Faretta v. California,
ate re CEU P BEE peut aseosncceces 19

ii

In re Fields,
285 Minn. 184,
pee ee Fe Reh ey Mek) Pree 9

In re Gault,
ry a: Pa a el hs Perera eee ee ee 18, 24

Holiday v. Johnston,
SLO Use 2S EAPEA) costo csecvavocns 20

McKeiver v. Pennsylvania,
403 U.S. S28 CA97 Lp nce cecccccccsces 24

In re M.A.P.,
260i BM. ee S44 Tinh. LOTS) wesccies 9

Mattox v. United States,
De Uille Bat TOOEOT 6 666 0 0a 66 844.00 0% 19

Morgan v. United States,
298 U.S. 468 (1936). cccwccncccvces 5

In re Oliver,
Fas Uses Bot CAPOel ss tweak aew ne cees 19

In re Appeal in Pima County,
129 Ariz. 371,
631 P.2d 526 (1981)... cece ee ccccees 26-28

Pointer v. Texas,
SUU Uses SOU SASS) 6 kak Ses RO KARR 18

Regina v. Bertrand,
4 Moo. P.C.N.S. 460,
16 Eng. Rep. 391 (1867) .cccccucsees 13

Swisher v. Brady,
438 U.S. 204 (1978) ...cccees 18, 24-26, 28-29

United States ex rel. Graham

v. Mancusi,
Sor Pewee Sen CEs LOlEl ss bake ceases 14

iii

United States v. Raddatz,
S47 UeBe SGOT CAPSS) a cccccsccsacs 15-16, 21

In re Winship,
SST Usths SES. CLOT OE 6 060664606046 08-8 17, 24

Constitutional Provisions

DOS, OW 6 5k 5 6 6564666 604668 Dae eO iS, a7
AMENGMENt VI... ccc cccccesescccsccecs 18
RBGNGMORE AV «sc cccecssavs Ze ids 206 28, 2S
Statutes

U.8.C. L2S7(3) ce voceseecsesccessess 2
Minn. Stat. 260.023. .ccucesacecsacs 7
Minn. Stat. 260.031 TEUUTETOLELT TS 2-4, 7-9
Minn. Stat. 4€84.70(6)..cccsecvece 8
Minn. Stat. 609.53. crcccascsecsess ry lee

Rules of Procedure

Ruse 25 BE. Bi GOVs CEs vs we cscs 4-6

iv

IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1985

No.

DERRICK KABANUK,
Petitioner,
vs.
STATE OF MINNESOTA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI
TO THE COURT OF APPEALS OF
THE STATE OF MINNESOTA

Petitioner, Derrick Kabanuk, prays
that a writ of certiorari issue to review
the judgment of the Court of Appeals of

the State of Minnesota in this case.

OPINIONS BELOW
The opinion of the Minnesota Court
of Appeals is reported at 363 N.W.2d 877

(Minn. App. 1985). The opinion of the

Hennepin County Juvenile Court is not

reported.

JURISDICTION
The judgment of the Minnesota Court
of Appeals was entered on March 12, 1985.
The Minnesota Supreme Court denied
review on May 20, 1985.
The jurisdiction of this Court is

invoked under 28 U.S.C. 1257(3).

CONSTITUTIONAL AND STATUTORY PROVISIONS

Amendment XIV:

Section 1. Al persons born or
naturalized in the United States,
and subject to the jurisdiction
thereof, are citizens of the United
States and of the State wherein
they reside. No Stare shall make
or enforce any law which shall
abridge the privileges and immuni-
ties of citizens of the United
States; nor shall any State deprive
any person of life, liberty, or
property without due process of law;
nor deny to any person within its
jurisdiction the egual protection
of the laws.

Minnesota Statute 260.031:

Subdivision 1. The chief judge

a

q
a

or
: qr

Pees

a

fad es
fae = fe

a

Ws

of the judicial district may appoint
one Or more suitable persons to act
as referees. All referees are sub-
ject to the administrative authority
and assignment power of the chief
judge of the district as provided in
section 484.69, subdivision 3, and
are not limited to assignment to
juvenile court. Referees shall hold
office at the pleasure of the judges
of the district court and shall be
learned in the law, except that
persons holding the office of referee
on January 1, 1983, may continue to
serve under the terms and conditions
of their appointment. The compensa-
tion of a referee shall be fixed by
the judge, approved by the county
board and payable from the general
revenue funds of the county not
otherwise appropriated. Part time
referees holding office in the second
judicial district pursuant to this
subdivision shall cease to hold
office on July 31, 1984.

Subd. 2. The judge may direct
that any case or class of cases shall
be heard in the first instance by
the referee in the manner provided
for the hearing of cases by the court.

Subd. 3. Upon the conclusion of
the hearing in each case, the referee
shall transmit to the judge all papers
relating to the case, together with
his findings and recommendations in
writing. Notice of the findings of
the referee together with a statement
relative to the right of rehearing
shall be given to the minor, parents,
guardian, or custodian of the minor
whose case has been heard by the
referee, and to any other person that
the court may direct. This notice

=

may be given at the hearing, or by
certified mail or other service
directed by the court.

Subd. 4. The minor and his
parents, guardians, or custodians
are entitled to a hearing by the
judge of the juvenile court if,
within three days after receiving
notice of the findings of the
referee, they file a request with
the court for a hearing. The court
may allow such a hearing at any
time.

Subd. 5. In case no hearing
before the judge is requested, or
when the right to a hearing is
waived, the findings and recommenda-
tions of the referee become the
decree of the court when confirmed
by an order of the judge. The final
order of the court shall, in any
event, be proof of such confirmation,
and also of the fact that the matter
was duly referred to the referee.

Rule 2, Minnesota Rules of Procedure
for Juvenile Court:

Rule 2.01. Authorization to Hear Cases

A referee may hear, as authorized
by statute, any matter under the juris-
diction of the court in the manner
provided for the hearing of matters by
the court.

Rule 2.02. Objection to Assignment of
Referee

The child's counsel or the county
attorney may object to a referee pre-
siding at a hearing. This objection shall

5

be in writing and filed with the court
within three (3) days after being informed
that the matter is to be heard by a
referee or the right to object is waived.
The court may permit the filing of a
written objection to a referee at any
time. After the filing of an objection,

a judge shall hear any motion and pre-
Side at any hearing.

Rule 2.03. Transmittal of Findings

Upon the conclusion of a hearing the
referee shall transmit to the judge
findings and recommendations in writing.
Notice of the findings of the referee
together with a statement relative to
the right to a review before a judge
shall be given either orally on the
record, or in writing to the child, the
child's counsel, the child's parent(s)
and guardian, and their counsel, the
county attorney and to any other person
that the court may direct.

Rule 2.04. Review

Subd. 1. Generally. A matter which
has been decided by a referee may be
reviewed in whole or in part by a judge.

Subd. 2. Filing. A motion for a
review by a judge must be filed with the
court within ten (10) days after the
referee's tindings and recommendations
have been provided, pursuant to Rule 10.

Subd. 3. Right of Review upon Filing
of Timely Motion.

(A) Right of a Child. The child
is entitled to a review by a judge
in any matter upon which a referee
has made findings or recommendations.

(B) Right of County Attorney.

Lostedienahe

aa ili i

6

The county attorney is entitled to

a review by a judge from any pre-
trial findings or recommendations

of a referee except those dismissing
a petition for lack of probable
cause. The county attorney is not
entitled to a review by a judge after
jeopardy has attached.

(C) Rtgkt of Parent(s) and
Guardian. The child's
parent(s) and guardian are entitled
to a review by a judge of a referee's
findings or recommendations made
after the allegations of a petition
have been proved.

Subd. 4. The Court. The judge may
grant a review at any time before con-
firming the findings and recommendations
of the referee.

Subd. 5. Procedure. A review by a
judge may be on the verbatim recording
made pursuant to Rule 11l or may be de
novo in whole or in part.

Rule 2.05. Order of the Court

The findings and recommendations of
the referee become the order of the court
when confirmed by the judge, subject to
review pursuant to Rule 2.04.

STATEMENT OF THE CASE
Petitioner, Derrick Kabanuk, was
charged with the offense of receiving

stolen property, a cririnal offense under

)

:
Minn. Stat. 609.53, Subd. 1(2) (1982).
Since he was seventeen years old at the
time of the alleged offense, the charge
was prosecuted in a delinquency proceeding
in the Juvenile Court. 1

The matter was assigned by the
Juvenile Court to a referee. A contested
hearing on the charge was held before a
referee of the Juvenile Court on October
26, 1983. At the conclusion of the hear-
ing, the referee found that the charge was
proven.

At this point it should be observed
that Minn. Stat. 260.031, Subd. 2 provides
that the judge of the juvenile court may
direct that cases in the first instance
may be heard by a referee in the manner

provided for the hearing of cases by the

lMinn. Stat. 260.015, Subd. 5 defines
a delinquent child as one who has violated
any state or local law.

8
court. Subdivision 3 of this statute
specifies that upon the conclusion of
the hearing of a case, the referee shall
transmit to the judge ali papers relating
to the case together with his findings
and recommendations. Subdivision 4 of
this statute provides that the minor and
his parents are entitled to a hearing by
the judge of the juvenile court if, within
three days after receiving notice of the

findings of the referee, they file a

2minn. Stat. 484.70, Subd. 6 provides
that a party may object to the assignment
of a referee. However, at the subsequent
hearing on Petitioner's motion for a
trial de novo, Petitioner testified that
he was not advised by either the referee
or by his court-appointed lawyer that he
had the right to object to the assignment
of a referee to hear his case; he also
testified that he was not aware of this
right. Nevertheless, the Court of Appeals
held that he was "deemed" to have waived
the right, because he was represented by
counsel and failed to assert it. In re
D.K., 363 N.W.2d 877, 880 (Minn. App.
1985).

Merit i

eee ats Bad

9

request with the court for a hearing.
Subdivision 5 of the statute provides
that where no hearing before the judge
is requested, or when the right to a
hearing is waived, the findings and re-
commendations of the referee become the
decree of the court when confirmed by
an order of the judge. >

Following the hearing before the
referee, Petitioner filed a request for
a hearing before the judge of the juvenile
court under Minn. Stat. 260.031,:. Subd. 4,
contending that the statute afforded him
a right to a trial de novo before the
juvenile court judge. Petitioner also
based his claim to a trial de novo upon

constitutional grounds, arguing that the

the Minnesota Supreme Court has held
that the findings of the referee are
advisory only. The judge alone decides
the case and renders the judgment.
In re M.A.P., 281 N.W.2d 344 (Minn. 1979);
in re Fields, 285 Minn. 184, 172 N.W.2d
322 (1969).

i iabenhied oe

AN Pa

SS RU PER eet A ek

a Natta

tind aa

lo CARLA 9 ah ARON

10
adjudication of his guilt or innocence
by a judge who did not preside at the
trial, and who did not see or hear the
witnesses, would deny him due process
of law in violation of the Fourteenth
Amendment to the United States Constitu-
tion.

The Juvenile Court denied Petitioner's
motion ‘for a trial de novo and proceeded
to review the matter on the record of the
hearing before the referee. On July 27,
1984, the Juvenile Court Judge issued an
order affirming the finding of the
referee and adjudging the Petitioner to
be guilty of the offense of receiving
stolen property.

Petitioner then appealed to the
Minnesota Court of Appeals. On appeal
Petitioner argued that he was entitled
to a trial de novo under the statutory
provision fora rehearing. Secondly, he

argued that the adjudication of guilt by

Cee naan

11
a judge who did not preside at the trial
violates the Due Process Clause of the
Fourteenth Amendment.

The Court of Appeals, affirmed. First
addressing the statutory issue, the Court
held that the statutory provision for a
rehearing does not require a trial de
novo, but may be satisified by a review
of the record of the hearing before the
referee. Turning to the constitutional
issue, the Court of Appeals held that the
statutory framework permitting the judge
to decide the case by reviewing the
record does not violate the right of the
accused juvenile to due process of law.

Petitioner then sought review of the
decision by the Minnesota Supreme Court.

That Court denied review on May 20, 1985.

12

REASONS FOR GRANTING THE WRIT

1. This case presents an important

question of constitutional iaw which

should be decided by this Court.

In this case Petitioner asserts the
right of the accused to have his trial
conducted before the tribunal which must
determine his guilt or innocence. It is
a right which is fundamental. Indeed,

it would seem that this right inheres

eh AN RG DIE AGRE APR ALAN EAA. Rl ce Nh ST BORE iS eect ay AINSI 5 pAb OA Raise

in the very notion of a trial] itself.
This Court has not previously held
that an accused is entitled, as a matter
of due process, to a trial conducted in

the presence of the trier of fact. Never-

dint:

: theless, the absence of a prior decision

by this Court explicitly announcing this

re

principle does not indicate that the right
does not exist. On the contrary, it
reflects the fact that the right has been
widely assumed to exist and never seriously

challenged.

ee AY r

t eT at LIK

i3

It is, in fact, a deeply engrained
principle of Anglo-American law, expressed
by courts both implicitly and explicitly,
that the accused is entitled to have
his guilt or innocence determined by a
tribunal which has personally heard the
testimony and observed the witnesses.

More than one hundred years ago,
Lord Coleridge stated the view of the
Privy Counsel that a retrial should not
be conducted by reading the notes of the
witnesses' prior testimony:

“The most careful note must
often fail to convey the evidence
fully in some of its most important
elements.... It cannot give the
look or manner of the witness:
his hesitation, his doubts, his
variations of language, his
confidence or precipitancy, his
calmness or consideration;... It
is in short the dead body of the
evidence, without its spirit;
which is supplied, when given
openly and orally, by the ear and
eye of those who receive it."
Regina v. Bertrand, 4 Moo.P.C.N.S.
460, 481, 16 Eng. Rep. 391, 399
(1867).

American courts have expressed the

ee ee en ee

14

same view. In Uniteu States ex rel.

Graham v. Mancusi, 457 F.2d 463 (CA2

1972), the court applied the principle
in federal habeas corpus proceedings to
invalidate a procedure under which a
state appellate court had eetened s con-
viction of the defendant for a lesser
offense when reversal of the criginal
conviction was required because of im-
properly admitted evidence. Speaking
for the court, Judge Friendly stated:

"Due process forbids that, when
an issue of fact is presented, a
man should be sent to prison without
the trier of facts having seen and
heard his accusers and himself, if
he desires to testify, and weighing
their credibility in the light of
their demeanor on the stand. We
would thus reach no different con-
clusion in this case if Graham had
not been constitutionally entitled
to a jury trial. It would still be
for the judge who saw and heard the
witnesses at trial. . . to determine
where the truth lay - not for
appellate judges reading a cold
record." Id. at 469-470.

This Court too has recognized the

principle that, "(t]he one who decides

15

must hear." Morgan v. United States,

298 U.S. 468, 481 (1936).

In United States v. Raddatz, 447

U.S. 667 (1980), this Court considered
the question of whether the Due Process
Clause of the Fifth Amendment requires
that the judge personally hear the
testimony at a suppression hearing, or
whether the judge is permitted to make
the decision on the defendant's motion
for suppression on the basis of his re-
view of the record made before a
inmagistrate. The Court held that it is
constitutionally permissible for the
judge to make his decision on the sup-
pression motion based on the record,
without personally hearing the testimony.
The majority opinion in United

States v. Raddatz, however, provides no

support for the notion that the decision
on guilt or innocence could be made by

one who had not personally heard the

en, Re ee La ar

16

testimony. On the contrary, the clear

implication of Raddatz is that, unlike

a suppression hearing, the trial itself
must be conducted in the presence of the
trier of fact. In fact, the Court in
Raddatz resolved the due process issue
precisely by distinguishing a motion
hearing to suppress evidence from the
criminal trial. As Mr. Chief Justice
Burger stated for the Court:

"This Court on other occasions
has noted that the interests at
Stake in a suppression hearing
are of a lesser magnitude than the
criminal trial itself ... We
conclude that the process due at
a suppression hearing may be less
demanding and elaborate than the
protections accorded the defendant
at the trial itself." Raddatz,
supra, 447 U.S. at 679.

The right of the accused to have his
trial conducted before the trier of fact
is fundamental because it is inherent
in the very concept of a trial. This
right is also fundamental in the sense

that it implicates several other

17

constitutional rights of the accused,
which would necessarily be vitiated or
defeated if the right were denied.

These include the standard of proof be-
yond a reasonable doubt, the right of
confrontation, and the right of the
accused to call witnesses and to testify
in his own defense.

The Due Process Clause protects the
accused against conviction except upon
proof beyond a reasonable doubt. In re
Winship, 397 U.S. 358 (1970). But the
rule requiring proof beyond a reasonable
doubt is undermined when the determination
of guilt is made upon a review of the
written record of earlier testimony.

How can the judge determine the guilt of
the accusea beyond a reasonable doubt

when he has not had the opportunity to
observe the witnesses or to evaluate their
credibility in the light of their demeanor?

As Mr. Justice Marshall remarked in his dis-

18

senting opinion in the case of Swisher

v. Brady, 438 U.S. 204,231 (1977),

"[t])rials-py-transcript can never be more
than trials by substantial evidence."

The defendant's right of confronta-
tion is guaranteed by the Sixth Amend-
ment and made applicable to the states
by the Fourteenth Amendment. Pointer

v. Texas, 380 U.S. 400, (1965); Barber

v. Page, 390 U.S. 719 (1968). The right
of confrontation is applicable in juvenile

delinquency prosecutions. In re Gault,

387 U.S. 1 (1967).

It has long been held that one of the
primary purposes of the Confrontation
Clause is to afford the defendant the
opportunity to challenge his accusers
in a direct encounter before the trier

of fact. See California v. Green, 399

U.S. 156-158 (1970). At the heart of
the constitutional aquarantee is the

right of the accused to compel the witness

19

"to stand face to face with the jury
in order that they may look upon him,
and judge by his demeanor upon the
stand and the manner in which he gives
his testimony whether he is worthy of

belier." Mattox v. United States, 156

U.S. 237, 242-243 (1895). But this
essential purpose of the Confrontation
Clause is wholly negated when the judge
is permitted to decide the case by merely
reviewing the cold transcript of testi-
mony taken before a referee or magistrate.
uch a procedure denies the defendant the
constitutional right of confrontation.
The accused also has the right to
testify in his own defense. In re
Oliver, 333 U.S. 257, 275 (1948): Brooks

v. Tennessee, 406 U.S. 605, 612 (1972);

Faretta v. California, 422 U.S. 806, 819

(1975). But what does this right avail
the accused if he cannot give his testi-

mony face to face with the trier of fact?

20

The testimony of the accused is a
truly critical phase of any trial in
which the defendant chooses to testify.
If the defendant testifies and is
believed, he may assure his acquittal.
Thus the factfinder must make a crucial
assessment of the defendant's credibility.
That assessment, of course, is based in
large part upon the defendant's demeanor
on the stand; the manner in which he
answers the questions, his sincerity,
his forthrightness or evasiveness. But
the factfinder cannot adequately assess
the defendant's truthfulness if he has
not observed the defendant and heard his
testimony. Reading the transcript of
the defendant's testimony is clearly
insufficient. That is why this Court

stated in Holiday v. Johnston, 313 U.S.

342, 352 (1941):

"We cannot say that an appraisal
of the truth of the prisoner's oral
testimony by a master or commissioner

21

is, in the light of the purpose

and object of the proceeding, the

equivalent of the judge's own

exercise of the function of the

trier of the facts."

Even aside from the need to assure
a fair assessment of the defendant's
truthfulness, a decent respect for human
dignity mandates that a person charged
with a criminal offense should be entitled
to relate his version of the facts to the
official entrusted with judging his guilt
Or innocence. "In this respect, the
requirement that a finder of facts must
hear the -estimony offered by those whose
liberty is at stake derives from deep-

seated notions of fairness and human

dignity." United States v. Raddatz,

Supra,at 697 (Marshall, J., dissenting).
The fundamental unfairness of a
system allowing the judge to decide the
case based upon the record of the earlier
testimony before a referee is graphically

demonstrated in the present case.

22
Petitioner was charged with the offense
of receiving stolen property. Under
the specification of the charge, the
State had to prove that he possessed
stolen property, and that he knew it was
stolen. * At the hearing before the
referee, Petitioner testified that he
had not known the property was stolen.
If his testimony was true, Petitioner was
entitled to be acquitted. Having denied
Petitioner's request for a trial de novo,
the judge had to decide the case without
personally hearing the testimony cf the
accused. Accordingly, the judge had no

way of taking Petitioner's demeanor into

“The delinquency petition alleged:
"On July 18, 1983, at 1949 Oliver Avenue
North, Brooklyn Center, Hennepin County,
Minnesota, DERRICK GRANT KABANUK
possessed stolen property, to-wit: one
JMC boys moto-cross racing bicvcle and
one BXC boys moto-cross racing bicycle
having a value of over $150.00, knowing
said property to have been stolen, in
violation of Minn. Stat. 609.53, Subd. 1(1)."

23
account in assessing the truth of
Petitioner's testimony. Yet the judge
found the Petitioner guilty beyond a
reasonable doubt; and the judge's
decision necessarily included a finding
that Petitioner's testimony was not true.
Under these circumstances, Petitioner
quite clearly was denied due process of

law.

2. The constitutional question

presented by this case is important to

the administration of iuvenile justice.

Although the juvenile court system
Originated in the desire to provide a
distinctive procedure and setting to
deal with the problems of youth, in-
cluding those manifested by antisocial
conduct, recent decisions of this Court
have recognized that there is a gap be-
tween the originally benign conception

of the system and its realities. With

24

the exception of McKeiver v. Pennsyl-

vania, 403 U.S. 528 (1971), the Court's
response to that perception has been

to make applicable to juvenile delin-
guency trials the constitutional
guarantees associated with traditional

criminal prosecutions. In re Gault,

387 U.S. 1 (1967); In re Winship, 397

U.S. 358 (1970); Breed v. Jones, 421 U.S.

3919 (1975).

The use of referees in the adjudica-
tory vrocess of juvenile court proceedings
was considered by this Court in the case

of Swisher v. Brady, 438 U.S. 204 (1978).

Swisher involved a Maryland procedure

which authorized juvenile delinguency

cases to be heard by masters, but per-
mitted either party to file exceptions
to the findings and recommendations of
the master, and to obtain a hearing by
the juvenile court judge. At issue in

the case was whether the Double Jeopardy

25
Clause was violated by the procedure
allowing the State to file exceptions
to findings of the master which are
favorable to the juvenile defendant.
The Court held that the Double Jeopardy
Clause was not violated by the Maryland
procedure, because under such a procedure
an accused juvenile is subjected to a
Single proceeding which begins with a
master's hearing and culminates with an
adjudication by a judge. This conclusion
was based on the recognition that, under
Maryland law, the master's findings are
advisory only, and subject to acceptance,
modification, or rejection by the juvenile
court judge.

The holding in Swisher v. Brady was

limited to the question of whether the
Maryland procedure violated the Double
Jeopardy Clause. As Mr. Chief Justice
Burger noted, speaking for the Court:

"It is not usual in a criminal
proceeding for the evidence to be

26

presented and recorded in the

absence of the one authorized

to determine guilt. But if there

are any objections to such a

system, they do not arise from the

guarantees of the Double Jeopardy

Comune. 26. at 216, n. 14.

While the majority in Swisher did not
consider the due process issue arising
under the Maryland procedure, the issue
was addressed in the dissenting opinion.
Mr. Justice Marshall, joined by Mr.
Justice Brennan and Mr. Justice Powell,
expressed the view that the procedure
violated the dye process principle that,
where demeanor evidence is critical, the
ultimate factfinder in a criminal case
must hear the witnesses on whose testi-
money his findinas will be based. Swisher
v. Brady, supra, at 229-232 (Marshall, J.,

dissenting).

Following the decision in Swisher

v. Brady, the Arizona Supreme Court

decided the case of In re Appeal in Pima

County, 129 Ariz. 371, 631 P.2d 526

27

(1981). In that case the juvenile
defendant appealed from an adjudication
of delinquency by the juvenile court,
which overruled a juvenile court
referee's finding that the state had
not proved delinquency beyond a reason-
able doubt. The juvenile's claim was
that the adjudication violated due
mrocess of law.

Noting this Court's decision in

United States v. Raddatz, supra, that

the Due Process Clause of the Fifth

Amendment does not require a district

court judge to hear the testimony

personally at a suppression hearing in

a criminal case, the Arizona Supreme

Court concluded:

"We believe the interests

implicated in an evidentiary hearing
to adjudicate the delinquency of a
juvenile are deserving of more pro-
tection than those implicated in an
evidentiary hearing on a motion to
suppress an involuntary confession."
Id. at 528.

Accordingly, the Court held that the

—_— we at er — ~s

28
reversal by the juvenile court judge
of the referee's finding Ves ccdrwed 4) Nae

ae RRA eb web dles e

ad pe I av Ge Re ee

a3

existed, and that this right was know-
ingly and intelligently waived.

Finally, Respondent argues that an
adjucication of guilt by a Judge who
has not presided at the trial violates
due process of law. In all trials heard
by Referees, each Respondent is entitled
to all Constitutional protections, that
he or she would have before a judge. A
trial before a Referee is conducted in
precisely the same manner as would be
the case before a Judge. The procedure
for hearings before a Referee and
confirmation by a Judge set forth in
Minnesota Statute §260.031 and Rule 2 of
the Juvenile Court Rules is consistent
with due process requirements.

For the reasons set forth above,
Respondent's request for a trial de novo

is hereby denied.

A-22

STATE OF MINNESOTA DISTRICT COURT

COUNTY OF HENNEPIN FOURTH JUDICIAL
DISTRICT

JUVENILE COURT
DIVISION

In the Matter of the Welfare of
DERRICK KABANUK
ORDER

D.C. #081600-96

Tne above-entitled matter came duly
on for hearing before the undersigned,
one of the Judges of the above-named
Court, on May 21, 1984, at 328 Court
House, Minneapolis, Minnesota.

APPEARANCES WERE AS FOLLOWS:

William Gatton, Attorney at Law,
appeared for and on behalf of the
respondent-child.

Glen Boyce, Assistant Hennepin County

Attorney, appeared for and on behalf of

Hennepin County.

Upon all the files, records, pro-
ceedings, together with argument of
counsel made in Court, and legal memo-
randa, the Court makes its Order as
follows:

IT IS HEREBY ORDERED:

1. That Referee Haeg's Order of
October 26, 1983 finding the Respondent
guilty of receiving stolen property is
hereby affirmed.

2. That the attached memorandum
shall be made a part of this Order.

3. That the matter is scheduled for
a Disposition Hearing before Referee

Thomas Haeg on August 16, 1984 at 4:00 p.m.

BY THE COURT:

/s/

Allen Oleisky

Judge of District Court
Juvenile Court Division

Dated this 27th day of July, 1984.

i

ESE

Wier Oa acento te

Pee eer Pe et

A-24

MEMORANDUM

Respondent appeals from the Referee's
Order of May 21, 1984 on three grounds.
Respondent argues that the element of
knowledge has not been proven beyond a
reasonable doubt; that the element of
possession of the stolen BXC bicycle was
not proven beyond a reasonable doubt;
and, the Respondent was denied the effec-
tive assistance of counsel at the hearing
before the referee.

On August 3, 1983, Respondent was
charged with Possession of Stolen Property
knowing said property to have been stolen
in violation of Minnesota Statute Section
609.53 subd. 1(1) (1982). This section
reads as follows: "Any person who
receives, possesses, transfers, buys or
conceals any stolen property or property
Obtained by robbery, knowing or having

reason to know the property was stolen

or obtained by robbery, may be sentenced

tt TE aN

et NE 8 Nt An A PII ly EBLE PIAA. TO A eb BR Ce

asia

A-25

as follows...."

To convict a person for receiving
or concealing stolen property the state
must prove that the respondent received
or concealed the property specified in
the complaint, that the property had
been stolen, and the respondent knew or
had reason to know that the property was

stolen and nevertheless, intentionally

received or concealed it. See Minn. Stat.

6609.53 Subd. 1(1) (1982); see also State

v. Melina, 297 Minn. 342, 345, 210 N.W.

2d 855, (1973) (per curiam) (decided
prior to 1982 amendent which altered
language from statute from "knowing" the
property had been stolen to "knowing or
having reason to know" the property was
stolen).

In the present case, the state provec
beyond a reasonable doubt that the

property involved, a JMC and a BXC bicycle

belonging to David Ralph's children, had

Le A Dane alt witha, tail,

a ea

A-26
been stolen. The state also proved that
the respondent received or had possession
of the JMC bicycle belonging to Mr.
Ralph's daughter, as this was the bike
respondent was trying to sell to DeWayne
Stein.

The state produced the following
evidence to prove that the respondent
also possessed the BXC bicycle. First,
both bicycles were stolen at the same
time. Second, Mr. Ralph testified that
the pedals on the JMC bicycle, when it
was recovered, were those he had altered
and placed on the BXC bicycle prior to
its having been stolen. Next, the state
demonstrated that the handle bars on the
bike that respondent was riding when he
came to sell the JMC bike were the ones
that Mr. Ralph had altered for use on
his son's BXC bike and were the handle

bars that had been on that bike when it

had been stolen. Mr. Ralph had testified

Le BONA AAD Mey GOT

A-27

that these handle bars were very un-
common and that he had had to place a
special order to get them.

The respondent testified that he
received the handle bars from Chuck
Zeck and he produced a receipt to
corroborate his testimony. Respondent
further testified that he bought the JMC
in the same condition it was in when he
tried to sell it and he did not buy the
handle bars from the same person he bought
the bike from.

The evidence regarding the possession
of the BXC is insufficient to support
a finding that the respondent ever possessed
the bike. The fact that the respondent
had two parts of the bike in his possession
at the time of his arrest, does not, prove
beyond a reasonable doubt that the
respondent possessed the BXC in its
entirety.

The final element that the state must

A-28
prove is that the respondent knew or
had reason to know that the property
was stolen and despite that knowledge
intentionally received it. The
respondent stated that he purchased
the JMC from a friend of a friend, but
he would not reveal the friend's identity.
In direct examination the respondent
stated "He told me that he had a friend
who knew where he could buy a bike real
cheap. He told me the price and what
kind of bike it was and everything and
--." Trial transcript at 60, lines 12-15.
Later, On cross-examination, the respon-
dent stated that he paid $125.00 for the
JMC. See Trial Transcript at 73, lines
7-14. Yet, the respondent knew the bike
had a value of at least $200 to $250 as
that is what he was willing to sell it
for. The state demonstrated through two
witnesses that the bike had a value of

$650 to $760. Given the disparity in

A-29
the bike's actual value what the
Respondent paid for it, and what the
Respondent was willing to sell it for,
it is apparent that he had reason to
know that the bike was stolen.

The fact that the respondent parked
his car away from Mr. Stein's house
hecause "I didn't want anybody to trace
it back to my house in case they didn't
buy the bike, and they'd know where the
bike was by identifying our car or
license plate, so I didn't want them to
know where we were from.", Trial Trans-
cript at 70, lines 6-10, also indicates
the respondent knew the bike was stolen
or had reason to know that it was.

Respondent is guilty of possezsion
of stolen property, with a value in
excess of $300 knowing or having reason

to know that the property was stolen.

See State v. Simpson, 298 Minn. 235, 214

N.W.2d 679 (1974) (jury could properly

A-30
infer requisite knowledge and wrongful
intent from evidence that defendant
bought property shortly after it was
stolen for price far below its actual

value); State v. Louis, 285 Minn. 276,

172 N.W.2a 754 (1969) (defendant's lack

of satisfactory explanation for his
possession of stolen property is evidence
he knew it was stolen). All the circum-
stances proved by the state are consistent
aa with a finding of guilty and are incon-
Sistent with any rational hypothesis
except respondent's guilt.

Respondent's final claim is that he
was denied the effective assistance of
counsel in violation of the Sixth Amend-
ment to the United States Constitution
and is therefore entitled to reversal.
The United States Supreme Court has
stated that a defendant making such a
claim must identify the acts or omissions

{

of counsel that are alleged not to have

a eS Bn

A-31
been the result of reasonable profess-

ional judgment. Strickland v. Washington,

35 U.S.L.W. 3066, 3072 (U.S. May 14, 1984).
Further, "the defendant must show that
there is a reasonable probability that,
but for counsel's unprofessional errors,
the result of the proceeding would have
been different." Id. at 3073.

The Eighth Circuit Court of Appeals

has stated:

a defendant is not entitled to

representation that results in an

acquittal, nor is he entitl +d to

the "best possible" representation.

Neither is a defendant entitled,

at the instance of new or substituted

appellate counsel, to have this court

review by hindsight tactical decisions

made by trial counsel in the course

of the trial.

United States v. Rhoads, 617 F.2d 1313,

1319 (8th Cir. 1980).

Respondent ciaims that court-

appointed defense counsel failed to
properly investigate the case and
develop relevant and material exculpa-
tory evidence. To support his argument,
respondent states that defense counsel
should have called Chuck Zeck as a
witness to corroborate respondent's
testimony about the purchase of the
handle bars. Respondent states that
defense counsel should have called a
witness from B.J.'s bike shop to testify
as to how common the handle bars are.
Such testimony would relate only to
the possession of the BXC and not the
JMC. Since respondent was not found
guilty of possession of the stolen BXC,
the failure to produce such evidence did
not prejudice the respondent's case.
Respondent next argues that court-
appointed defense counsel could have and

should have introduced evidence that

pe ee et ee wancr eAighadne Os

spit eb FLA bead ih B26 tie Oy aM eae

A-33
Mr. Ralph originally purchased the JMC
complete from B.J.'s bike shop for
$365.00. Such evidence, while it may
have been helpful, would not eliminate
the fact that respondent purchased the
bike shortly after it had been stolen
for far less than its actual value at
that time.

Next, respondent argues that court-
appointed counsel failed to "properly"
examine respondent while he was on the
witness stand. Defense counsel did try
to elicit from the respondent who he
purchasea the bike from, however respon-
dent refused to answer with anything
other than "a friend of a friend." See
Trial Transcript at 60, lines 10-19.
Respondent cannot now claim that he would
have disclosed the name of his friend at
trial had his attorney asked more questions.
Respondent's failure to disclose informa-

tion requested by his attorney cannot later

A-34

be held to be grounds for reversal.

Respondent finally argues that court-
appointed counsel should have made a
different closing argument. Closing
arguments, like much of the conduct of a
trial, is based on strategy. When a
case is tried before a court without a
jury, it is not uncommon for counsel to
waive closing arguments.

The statement by trial counsel that
"I hold, Your Honor, the evidence is
sufficient to find him not guilty of this
matter.” Trial Transcript at 77, lines
9-10, is an incorrect statement of the
law as it apparently shifts the burden
from the prosecution to the defense. In
front of a jury, such a comment may be
reversible error. However, this case was
tried before a referee; no jury was
present. “The Court, being learned in
the law, is well acquainted with the fact

that the state has the burden of proof

te Sa aa ena tat

A-35
in this case. Such comment, though not
reasonable, did not prejudice the respon-
dent in any way.

The respondent has failed to show
that there is a reasonable probability
that the result of the proceeding would
have been different had counsel acted
differently. Therefore, respondent's
conviction cannot be reversed on the
claim that he was denied effective

assistance of counsel.

EEE

A-36
STATE OF MINNESOTA SUPREME COURT

x COURT OF APPEALS

In the Matter of JUDGEMENT
the Welfare
of D.K. C8-84-1423

Appellate Court
Case Number

081600-96
Trial Court
Case Number

Pursuant to the order of Court hereto-
fore duly made and entered in this cause
it is determined and adjudged that the
order of the Court below, herein appealed
from, to wit, of the District Court within
and for the County of Hennepin be and the
same hereby is affirmed and that judgment
be entered accordingly. A certified copy
of the entry of judgment and the Court's
decision iS§ herein transmitted and made
part of the remittitur.

Dated and signed: FOR THE COURT

June 3, 1985

Dated

Attest: Wayne Tschimperle

Clerk of the
Appellate Courts

By: /s/ Maria Votel

Deputy/Assistant
Clerk

A-37

OFFICE OF
APPELLATE COURTS
FILED

MAY 20, 1985

WAYNE TSCHIMPERLE
CLERK

STATE OF MINNESOTA
IN SUPREME COURT
C8-84-1423

In the Matter of the Welfare of D.K.

ORDER

Based upon all the files, records and
proceedings, herein,

ae IS HEREBY ORDERED that the petition
of D.K. for further review be, and the
same is, denied.

Dated: May 18, 1985.

BY THE COURT:

/s/Douglas K. Amdahl
Chief Justice

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_0475%3A1. Public record. Not legal advice.