Carroll v. State

Terry Lynn CARROLL v. STATE of Arkansas

96-960                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 16, 1996


1.   Juveniles -- decision to try juvenile as adult must be
     supported by clear and convincing evidence -- statutory
     factors need not be given equal weight. -- If the circuit
     court decides to hold the juvenile for trial as an adult, its
     decision must be supported by clear and convincing evidence,
     and the circuit court's decision will not be overturned unless
     it is clearly erroneous; however, in making its determination,
     the circuit court is not required to give equal weight to each
     of the statutory factors under Ark. Code Ann.  9-27-318(e)
     (Supp. 1995).

2.   Juveniles -- serious and violent nature of offense sufficient
     by itself for trying juvenile as adult -- juvenile need not
     have committed violence himself. -- The serious and violent
     nature of an offense is sufficient by itself for trying a
     juvenile as an adult; yet there must be some showing of proof
     to substantiate the serious and violent charges in the
     information; it makes no difference if the juvenile did not
     commit the violence himself because his association with the
     use of a weapon in the course of the crimes is sufficient to
     satisfy the violence criterion; the serious and violent nature
     of a capital murder charge, even if the minor is an
     accomplice, is sufficient to uphold the denial of a motion to
     transfer to juvenile court.  

3.   Juvenile -- juvenile accomplice to violent crime subject to
     being charged as an adult -- trial court's denial of transfer
     to juvenile court affirmed. -- Where the circuit court stated
     that it had considered the relevant criteria under  9-27-
     318(e), where the crime was manifestly violent, and where
     there was proof that appellant carried a 12-gauge shotgun into
     the victims' residence and wrestled with the mother while her
     children were being shot, the charges in the information,
     which were corroborated by the proof at the hearing, provided
     a sufficient basis to uphold the trial court's ruling; a
     juvenile accomplice to a violent crime is still subject to
     being charged as an adult.  


     Appeal from Pulaski Circuit Court; John Langston, Judge;
affirmed.
     William R. Simpson, Jr., Public Defender, by: C. Joseph Cordi,
Jr., Deputy Public Defender.
     Winston Bryant, Att'y Gen., by:  Brad Newman, Asst. Att'y
Gen., for appellee.

     Robert L. Brown, Justice.  
     This is a juvenile-transfer case.  Appellant Terry Lynn
Carroll maintains that the circuit court erred in declining to send
this case to juvenile court because his chances for rehabilitation
are good.  We conclude that the circuit court was not clearly
erroneous in its decision, and we affirm.
     In the early morning hours of June 5, 1995, Marcell Young (age
17), Malak Hussian (age 10), and Mustafa Hussian (age 12) -- all
siblings -- were shot and killed while their mother, Mary Hussian,
wrestled with another gunman in a separate part of the house.  In
an information filed on July 5, 1995, the prosecutor charged Riley
Dobi Noel, appellant Carroll, Curtis Lee Cochran, and Tracy
Trinette Calloway with the capital murders of the three children
and the attempted capital murder of Mary Hussian.
     On May 13, 1996, Carroll filed a motion to transfer his case
to juvenile court because he was sixteen at the time of the crime. 
Carroll's date of birth is March 24, 1979.  Dr. Michael J. Simon,
a psychologist with the State Hospital, testified that he had
evaluated Carroll and found his I.Q. level to be 74.  An I.Q. of
less than 70, he stated, constitutes mental retardation.  On cross-
examination by the deputy prosecutor, Dr. Simon admitted that a
person with an I.Q. of 74 can function in society.  He further
agreed that Carroll could distinguish right from wrong.  Gertha
Hughes, Carroll's grandmother, testified that she had raised
Carroll since he was age seven or eight.  She testified that she
took care of Carroll because his mother, Gracie Hughes, "liked the
streets" and did not have time for him.  She stated that his father
also had not taken responsibility for him, except to pay child
support.  Ms. Hughes further related to the circuit court that
Carroll had not completed the eighth grade.  She testified that she
never had any problem with Carroll until he started associating
with the wrong crowd.  She believed that he could be rehabilitated.
     The prosecutor's case consisted of the testimony of two police
officers from the Little Rock Police Department.  Detective Ronnie
Smith testified that he advised Carroll of his Miranda rights on
June 5, 1995, and that Carroll gave a statement.  The circuit court
ruled that the statement was admissible.  Officer Steve Moore
testified that he investigated the Hussian triple homicide on June
5, 1995, and that the three Hussian children had been shot in the
head.  The mother, Mary Hussian, identified Carroll as the gunman
with whom she wrestled.  The murders occurred at 4:25 a.m. on June
5, 1995.  Carroll was arrested 20 minutes later.
     Officer Moore further testified that Carroll told him that the
Hussian children were shot with a .45 caliber automatic pistol. 
Hulls from a .45 caliber pistol had been found at the scene. 
Carroll told Officer Moore that the three other defendants were
present and that he struggled with the mother, Mary Hussian, while
Riley Noel shot the children.  Carroll specifically identified Noel
and Curtis Cochran from photo spreads.  Carroll admitted that he
was armed with a Mossberg 12-gauge shotgun during the murders.
     After arguments by counsel, the circuit court ruled from the
bench that it had considered the relevant statutory factors and had
found by clear and convincing evidence that Carroll should be tried
as an adult.  The circuit court's order denying the transfer was
subsequently filed.
     In this appeal, Carroll contests the circuit court's finding. 
The statutes provide that when deciding whether to transfer a case
to juvenile court, the circuit court must 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.
Ark. Code Ann.  9-27-318 (e) (Supp. 1995).
     If the circuit court decides to hold the juvenile for trial as
an adult, its decision must be supported by clear and convincing
evidence, and the circuit court's decision will not be overturned
unless it is clearly erroneous.  Ark. Code Ann.  9-27-318(f)
(Supp. 1995); Booker v. State, 324 Ark. 468, 922 S.W.2d 337 (1996);
Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995).  However, in
making its determination, the circuit court is not required to give
equal weight to each of the statutory factors under  9-27-318(e). 
Brooks v. State, 326 Ark. 201, 929 S.W.2d 160 (1996); Booker v.
State, supra; Sebastian v. State, 318 Ark. 494, 497, 885 S.W.2d 882
(1994).
     The serious and violent nature of an offense is sufficient by
itself for trying a juvenile as an adult.  Brooks v. State, supra;
Holland v. State, 311 Ark. 494, 844 S.W.2d 943 (1993).  Yet, there
must be some showing of proof to substantiate the serious and
violent charges in the information.  See, e.g., Sanders v. State,
326 Ark. 415,     S.W.2d     (1996); Booker v. State, supra; Cole
v. State, 323 Ark. 136, 913 S.W.2d 779 (1996).  It makes no
difference if the juvenile did not commit the violence himself
because "his association with the use of a weapon in the course of
the crimes is sufficient to satisfy the violence criterion." 
Booker v. State, 324 Ark. at 474, 922 S.W.2d  at 340, quoting Guy v.
State, 323 Ark. 649, 916 S.W.2d 760 (1996).  Moreover, this court
has held that the serious and violent nature of a capital murder
charge, even if the minor is an accomplice, is sufficient to uphold
the denial of a motion to transfer to juvenile court.  Bell v.
State, 317 Ark. 289, 877 S.W.2d 579 (1994).
     In the instant case, the circuit court stated that it had
considered the relevant criteria under  9-27-318(e).  Carroll
argues, nonetheless, that the circuit court clearly erred in
refusing to transfer his case because he has good prospects for
rehabilitation.  As supporting evidence for this assertion,
Carroll's counsel points to the proof of his borderline
intelligence range (I.Q. of 74) and to proof that he was a good kid
until he began to associate with the wrong crowd, the inference
being that Carroll can now be influenced by "good" just as he was
once influenced by "evil."  He also underscores the fact that
Carroll was not the shooter of the three children.
     Carroll's argument, though, falls far short of persuading this
court that the circuit court's finding was clearly wrong.  The
crime was manifestly violent.  In addition, there was proof from
Carroll's statement to the police that he carried a 12-gauge
shotgun into the Hussian residence and wrestled with Mary Hussian
while her children were being shot.  A juvenile accomplice to a
violent crime is still subject to being charged as an adult.  Bell
v. State, supra.  The charges in the information, which were
corroborated by the proof at the hearing, provide a sufficient
basis to uphold the trial court's ruling.
     We note, additionally, that Carroll will turn 18 on March 24,
1997, which renders his prospects for rehabilitation within the
juvenile system considerably remote.  See Ark. Code Ann.  9-28-
208(d) (Supp. 1995); Hansen v. State, 323 Ark. 407, 914 S.W.2d 737
(1996).
     Affirmed.
     Roaf, J., concurs.