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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  


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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.  



                                                                                                                                                                                                                  -2-                                                                                                                                                                                                                           7425  


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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).  



                                                                           -3-                                                                     7425
  


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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).  

                                                                                                                                                         



                                                                                                     -4-                                                                                            7425
  


----------------------- Page 5-----------------------

 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).  

                                                               



                                                                                                                            -5-                                                                                                                 7425
  


----------------------- Page 6-----------------------

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).  



                                                                                                                                                                           -6-                                                                                                                                                                                 7425  


----------------------- Page 7-----------------------

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.  



                                                                                                                              -7-                                                                                                                    7425
  


----------------------- Page 8-----------------------

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.  

                                        



                                                                        -8-                                                                 7425
  


----------------------- 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).  

                                                                                               



                                                                                                                                                                             -9-                                                                                                                                                                7425
  


----------------------- Page 10-----------------------

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))).  

                



                                                                        -10-	                                                                  7425
  


----------------------- Page 11-----------------------

                                                                                                                                                       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...)  



                                                                                                 -11-                                                                                           7425
  


----------------------- Page 12-----------------------

"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...)  



                                                                                                                             -12-                                                                                                                       7425
  


----------------------- 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).  

                                                                     



                                                                     -13-                                                              7425
  


----------------------- 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.   



                                                                              -14-                                                                        7425
  


----------------------- 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...)  



                                                                                        -15-                                                                                 7425
  


----------------------- 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...)  



                                                                           -16-                                                                    7425
  


----------------------- Page 17-----------------------

                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.  

                                               



                                                                                                    -17-	                                                                                             7425
  


----------------------- Page 18-----------------------

"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).  

                                                         



                                                                       -18-                                                                 7425
  


----------------------- Page 19-----------------------

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.                                                                                                                                                                                                        



                                                                                                                                        -19-                                                                                                                                7425
  

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