Green v. State

Justin Wade GREEN v. STATE of Arkansas

95-1005                                            ___ S.W.2d ___

                    Supreme Court of Arkansas
                Opinion delivered March 11, 1996


1.   Juveniles -- transfer from circuit to juvenile court --
     factors considered. -- Although commission of a felony while
     armed with a firearm is a basis of concurrent jurisdiction of
     a circuit court over a juvenile, it is not one of the factors
     to be considered in making the transfer decision; under Ark.
     Code Ann.  9-27-318(e) (Supp. 1995), the court must consider
     the following factors in making the decision to retain
     jurisdiction or to transfer the case: (1) the seriousness of
     the offense, and whether violence was employed by the juvenile
     in the commission of the offense; (2) whether the offense is
     part of a repetitive pattern of adjudicated offenses that
     would lead to the determination that the juvenile is beyond
     rehabilitation under existing rehabilitation programs, as
     evidenced by past efforts to treat and rehabilitate the
     juvenile and the response to such efforts; and (3) the prior
     history, character traits, mental maturity, and any other
     factor that reflects upon the juvenile's prospects for
     rehabilitation.

2.   Juveniles -- transfer from circuit to juvenile court -- court
     not required to give factors equal weight. -- In making a
     juvenile-transfer decision, a circuit court is not required to
     give equal weight to each of the statutory factors.

3.   Juveniles -- transfer from circuit to juvenile court --
     seriousness of offense coupled with violence is sufficient for
     denial of motion to transfer. -- The seriousness of an
     offense, when coupled with the employment of violence, is a
     sufficient basis for denying a motion to transfer and trying
     a juvenile as an adult.

4.   Juveniles -- transfer from circuit to juvenile court --
     offense charged was serious. -- In reviewing the juvenile-
     transfer statutory factors, the supreme court concluded that
     the offense charged in the present case, manslaughter, a class
     C felony, was serious.

5.   Juveniles -- transfer from circuit to juvenile court --
     information may be sufficient of serious and violent nature of
     crime alleged -- information in present case did not allege
     violence. -- Although an information alone may be sufficient
     evidence of the serious and violent nature of the crime
     alleged to support an order denying the motion to transfer
     from circuit to juvenile court, the information in the present
     case did not allege the employment of violence.

6.   Juveniles -- transfer from circuit to juvenile court --
     appellant charged with having "recklessly" caused death --
     State did not intend to prove that "violence was employed." --
     Appellant was charged with having "recklessly" caused the
     victim's death; "recklessly" is defined by Ark. Code Ann.  5-
     2-202(3) (Repl. 1993) as the conscious disregard, with respect
     to attendant circumstances, of a substantial and unjustifiable
     risk that the circumstances exist or the result will occur;
     "to employ" means "to make use of"; the supreme court noted
     that the State did not intend to prove that "violence was
     employed" by appellant toward the victim and that the trial
     court's order denying transfer contained no such finding.

7.   Juveniles -- transfer from circuit to juvenile court --
     seriousness alone not sufficient to deny transfer -- factors
     pointed toward transfer to juvenile court -- matter reversed
     and remanded. -- Seriousness alone is not a sufficient basis
     to refuse a transfer from circuit to juvenile court; where
     evidence in support of applying statutory factor (1) to
     justify refusal to transfer was incomplete, and factors (2)
     and (3) weighed in favor of transfer, the supreme court held
     that application of the factors, no matter how they were
     weighed, pointed decidedly toward juvenile court; the matter
     was reversed and remanded.


     Appeal from Drew Circuit Court; Don Glover, Judge; reversed
and remanded.
     Bridewell & Bridewell, by: Laurie A. Bridewell and Robert G.
Bridewell, for appellant.
     Winston Bryant, Att'y Gen., by:  Sandy Moll, Asst. Att'y Gen.,
for appellee.

     David Newbern, Justice.March 11, 1996   *ADVREP3*


                                   95-1005
JUSTIN WADE GREEN                  Opinion Delivered:

          Appellant                Appeal from Drew Circuit
                                   Court (CR-94-183-1)
     v.
                                   Honorable Don Glover,
STATE OF ARKANSAS                  Circuit Judge

          Appellee                 Reversed and Remanded





                     David Newbern, Justice.


     Justin Wade Green turned 14 on August 4, 1994.  On September
15, 1994, he telephoned the Monticello Police Department from his
home.  He was crying and pleading for help for his close friend,
13-year-old Jacob Stanley, who had been shot, as it turned out,
fatally.  Justin was charged with manslaughter in Drew Circuit
Court.  The portion of the manslaughter law with which he was
charged reads, "A person commits manslaughter if:  He recklessly
causes the death of another person."  Ark. Code Ann.  5-10-
104(a)(3) (Repl. 1993).  He moved to transfer the case to juvenile
court.  The motion was denied on the grounds that the offense
charged is serious and a firearm was involved.  We reverse and
remand for transfer to the juvenile court.
     Drew County Deputy Sheriff Cox, who participated in the police
investigation of the incident, testified about the transcript of
Justin's telephone call to the police and about the immediately
ensuing investigation.  Through somewhat garbled questions and
answers with the operator, and later in a clearer manner to
investigators, Justin related that he tried to get a television
remote control device away from Jacob.  Justin had his father's
.357 magnum pistol.  Jacob said, "What are you going to do, stupid,
shoot me?"  Justin replied "no."  Jacob threw the remote control
device at Justin who dropped down to avoid being struck.  The gun
went off, wounding Jacob in the chest.
     Although Justin's explanation, both in his initial call and
later, was that the shooting was completely accidental, Deputy Cox
related some circumstances raising doubts.  The bullet entered
Jacob's body in a downward path, making it seem unlikely, perhaps,
that Justin had fallen and Jacob was standing upright when the shot
occurred.  Jacob was found lying on his back rather than on his
side as Justin had reported his fallen position.  The remote
control device was near Jacob's body rather than near the place
Justin said he had been when he went down to avoid being struck. 
Justin explained the latter two circumstances by saying he had
kicked the remote control device across the room in anger at
himself and had rolled Jacob over in an effort to help him. 
Although the path of the bullet in Jacob's body remained
unexplained, there was no evidence as to the position of Jacob's
body when the shot entered it.
     There was evidence that Justin is fascinated with guns.  He
had been told not to play with his father's pistol, but friends
testified that he often got it out when they were with him and his
parents were not at home.  He and the friends handled the gun. 
There was testimony that he once pointed it at his brother and said
he was going to kill him but there was other testimony from young
friends that they had not seen Justin point the gun at anyone when
he was showing it to them.  
     Deputy Cox testified he had checked for any police record of
misconduct on the part of Justin and found nothing to indicate he
had ever had a problem with the law in Little Rock or North Little
Rock where he had previously lived or in his current home town,
Monticello.  
     Justin's mother testified that he had never been in trouble
with the law.  She said Jacob had been Justin's best friend and
they never quarreled or fought.  Justin had maintained a 3.4 grade
average in school prior to the incident.  He was inducted into the
Beta Club in honor of his good scholarship and citizenship.  During
the time he remained in school after the incident, his grades
dropped to 2.4.  He was suspended from school due to the felony
charge.  In his home schooling with which his mother helped him he
achieved better than average scores on standardized tests.  His
mother testified that Justin suffered from nightmares after the
shooting and that she and her husband and Justin had all received
prescription medicines and psychological counselling as the result
of the incident.  
     The psychological counselor Justin had visited some 50 times
since the incident testified that the best course for Justin was to
reintegrate him in school.  He testified Justin had no problem
requiring rehabilitation, such as a mental disorder or drug
addiction, but that he continued to have crying spells and mental
ups and downs resulting from the death of his friend.  It was also
related that Justin had struck another young man who taunted him
about the incident and that he was the sort who did not back away
from aggressive behavior toward him.
     At the conclusion of the hearing on the motion to transfer,
the Trial Court stated: 
    
          I have listened to the testimony and among other things,
     as it was pointed out, that Justin is a violent person and
     there's two major factors I have given substantial
     consideration to.  One is the seriousness of the offense and
     the other is a death caused by a firearm.  These are the two
     primary factors that I've considered in deciding that this
     matter should be heard by the Circuit Court as opposed to
     juvenile court, although that does not mitigate the evidence
     of the type of person that Justin Green is.  But under these
     circumstances the Court finds the Motion to Transfer should be
     denied.

The operative part of the Court's order was as follows:  "That due
to the serious nature of the crime charged & the use of a firearm
in the commission of the offense, the defendant's motions should be
and are denied."  The order, as prepared presumably by the
prosecutor, included the words "and the employment of violence." 
Those words were crossed out with the deletion initialed by
Justin's counsel apparently prior to the signing of the order by
the Trial Court.

                1. The statutory transfer factors
     The General Assembly has established factors to be considered
in deciding whether a charge against a juvenile should be
transferred to the juvenile division of a chancery court.  Although
commission of a felony while armed with a firearm is a basis of
concurrent jurisdiction of a circuit court over a juvenile, Ark.
Code Ann.  9-27-318(b)(2)(M) (Supp. 1995), it is not one of the
factors to be considered in making the transfer decision.  Arkansas
Code Ann.  9-27-318(e) (Supp. 1995) provides the factors to be
considered as follows:

     In making the decision to retain jurisdiction or to
     transfer the case, the court shall consider the following
     factors:

     (1) The seriousness of the offense, and whether violence
     was employed by the juvenile in the commission of the
     offense;

     (2) Whether the offense is part of a repetitive pattern
     of adjudicated offenses which would lead to the
     determination that the juvenile is beyond rehabilitation
     under existing rehabilitation programs, as evidenced by
     past efforts to treat and rehabilitate the juvenile and
     the response to such efforts; and

     (3) The prior history, character traits, mental maturity,
     and any other factor which reflects upon the juvenile's
     prospects for rehabilitation.

     In making a transfer decision, a circuit court is not required
to give equal weight to each of the statutory factors.  Ring v.
State, 320 Ark. 128, 894 S.W.2d 944 (1995);  Williams v. State, 313
Ark. 451, 856 S.W.2d 4 (1993);  Hogan v. State, 311 Ark. 262, 843 S.W.2d 830 (1992).  The seriousness of an offense, when coupled
with the employment of violence, is a sufficient basis for denying
a motion to transfer and trying a juvenile as an adult.  Sims v.
State, 320 Ark. 528, 900 S.W.2d 508 (1995);  Holland v. State, 311
Ark. 494, 844 S.W.2d 943 (1993);  Wicker v. State, 310 Ark. 580,
839 S.W.2d 186 (1992);  Slay v. State, 309 Ark. 507, 832 S.W.2d 217
(1992); Vickers v. State, 307 Ark. 298, 819 S.W.2d 13 (1991); 
Walker v. State, 304 Ark. 393, 803 S.W.2d 502, reh'g denied 304
Ark. 402-A, 805 S.W.2d 80 (1991).  
     From the evidence before the Trial Court, it is apparent that
consideration of factors (2) and (3), which were not mentioned by
the Trial Court in comments from the bench or in the order, would
favor transfer in this case.  The focus thus must be upon the first
factor.  No doubt the offense charged is serious.  Manslaughter is
a class C felony.  Ark. Code Ann.  5-10-104(c) (Repl. 1993).  If
Justin were convicted he would be sentenced to imprisonment for not
less than three nor more than ten years.  Ark. Code Ann.  5-4-
401(a)(4) (Repl. 1993).
     The question then is whether factor (1) may form the basis of
refusal to transfer absent a finding that "violence was employed."

               2. "Whether violence was employed"
     The question is not whether violence occurred in the incident
under consideration but whether the decision not to transfer the
case can stand absent a finding that "violence was employed" by
Justin Green.  Jacob Stanley obviously died a most violent death. 
Although an information alone may be sufficient evidence of the
serious and violent nature of the crime alleged to support an order
denying the motion to transfer, Cole v. State, 323 Ark. 136, ___
S.W.2d ___ (1996);  Hamilton v. State, 320 Ark. 346, 896 S.W.2d 877
(1995);   Tucker v. State, 313 Ark. 624, 855 S.W.2d 948 (1993); 
Vickers v. State, supra;  Walker v. State, supra, the information
in this case does not allege the employment of violence.
     Justin Green is charged with having "recklessly" caused Jacob
Stanley's death.  "Recklessly" is defined or described by Ark. Code
Ann.  5-2-202(3) (Repl. 1993) as follows:

     A person acts recklessly with respect to attendant
     circumstances or a result of his conduct when he consciously
     disregards a substantial and unjustifiable risk that the
     circumstances exist or the result will occur.  The risk must
     be of a nature and degree that disregard thereof constitutes
     a gross deviation from the standard of care that a reasonable
     person would observe in the actor's situation.   

"To employ" means "to make use of."  Shorter Oxford English
Dictionary, p. 810 (1993).  The State does not intend to prove that
"violence was employed" by Justin toward Jacob Stanley, and the
order of the Trial Court contains no such finding.  
     Seriousness alone is not a sufficient basis to refuse the
transfer.  See Holmes v. State, 322 Ark. 574, 911 S.W.2d 256
(1995).  Thus, evidence in support of applying factor (1) to
justify refusal to transfer is incomplete, and factors (2) and (3)
weigh in favor of transfer.  True, as mentioned above, the Trial
Court need not have given equal weight to each of the statutory
factors for deciding whether to transfer, but in this instance
application of them, no matter how they are weighed, points
decidedly toward juvenile court.
     Reversed and remanded for orders consistent with this opinion.
     Jesson, C.J., Glaze, and Corbin, JJ., dissent.*ADVREP3A*





JUSTIN WADE GREEN,
                    APPELLANT,

V.

STATE OF ARKANSAS,
                    APPELLEE.



95-1005


Opinion Delivered:  3-11-96





DISSENTING OPINION




                  TOM GLAZE, Associate Justice

     If "violence was not employed" in the commission of this
alleged crime, I am mystified how Jacob Stanley died.  The
undisputed evidence at the pretrial transfer hearing was that
Jacob's death resulted from a gunshot wound caused by a .357 pistol
which was then in Justin Green's possession.  After hearing the
evidence, the trial judge concluded that, "due to the serious
nature of the crime charged (manslaughter) and the use of a firearm
in the commission of the offense," he should deny the request to
transfer the matter to juvenile court.  Because this court
repeatedly has held that the seriousness of an offense, when
coupled with the employment of violence, is a sufficient basis for
denying a motion to transfer and trying a juvenile as an adult, we
should affirm the trial court's ruling in this case.  See Sims v.
State, 320 Ark. 528, 900 S.W.2d 508 (1995); Holland v. State, 311
Ark. 494, 844 S.W.2d 943 (1993).
     Other evidence presented below is troublesome and runs counter
to the majority court's decision to overturn the trial judge's
decision.  Testimony was introduced that, prior to his having shot
Jacob, Justin had on a previous occasion pointed a gun and
threatened to shoot and kill his own brother.  Evidence was also
admitted, showing Justin had on numerous occasions displayed guns
to friends, and his parents tried to hide the guns from him.  One
friend testified that Justin had taken all but one bullet from a
gun and proceeded to pull the trigger of the gun, while aiming at
a wall.  The friend said, "I freaked out."  
     Finally, Deputy Sheriff Tommy Cox testified he had concerns
over Justin's description of how the shooting occurred.  Justin had
stated the pistol discharged accidently after Jacob said, "What are
you going to do stupid, shoot me?"  Justin related he said, "No,"
and started to put the gun up.  Then, Justin continued, "Jacob
threw a remote [control], and I fell to the floor to keep the
remote from hitting me -- that's when the gun went off."  Justin
claimed Jacob fell on his right side, and had previously been
standing.  The on-scene investigation, however, found Jacob on his
back and the remote lying next to his body.  The autopsy revealed
the bullet was in a downward trajectory in Jacob's body, which
seemed inconsistent with Justin's story of his falling to the floor
and Jacob standing.
     From all the evidence above, it seems apparent that this court
is substituting its judgment in place of the trial judge's. 
Clearly, the state provided sufficient evidence from which it could
be concluded that Justin consciously and repeatedly risked other
peoples' lives by wielding loaded guns in their presence. 
Unfortunately, Jacob was the one who was present when, on this
occasion, Justin's reckless handling of a gun caused it to
discharge and kill Jacob.     
     This is a sad case, but the trial judge made a difficult
decision and I cannot say he was clearly erroneous.  
     JESSON, C.J., and CORBIN, J., join this dissent.