Fleetwood v. State

Carmen Anthony FLEETWOOD v. STATE of Arkansas

97-210                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
                 Opinion delivered July 7, 1997


1.   Juveniles -- ruling on motion to transfer -- factors
     considered. -- Arkansas Code Annotated  9-27-318(e)(Supp.
     1995) sets forth statutory factors that a trial court must
     evaluate when ruling upon a motion to transfer a matter to
     juvenile court; in ruling upon a motion to transfer, a court
     is not required to give equal weight to each of the factors
     enunciated in Ark. Code Ann.  9-27-318 (e); a trial court's
     decision to try a juvenile as an adult must be supported by
     clear and convincing evidence; a trial court's decision will
     not be overturned unless it is clearly erroneous.

2.   Juveniles -- motion to transfer -- movant has burden to prove
     transfer to juvenile court warranted. -- It is the movant's
     burden to prove that a transfer to juvenile court is
     warranted. 

3.   Juveniles -- appellant's argument without merit -- whether
     case should be transferred to juvenile court not dependent
     upon affirmative defenses. -- The appellant's claim that the
     denial of the motion to transfer was improper because of the
     affirmative defense of self-defense was without merit; the
     statutory scheme for determining whether a case should be
     transferred to juvenile court is not dependent upon
     affirmative defenses; a trial court must evaluate the specific
     offense and the individual defendant to determine whether a
     transfer is warranted; appellant was allowed to offer evidence
     to support his motion, and a trial court is in the best
     position to weigh such evidence; the supreme court will not
     question such a ruling absent evidence that the trial court
     was clearly erroneous.      

4.   Juveniles -- motion to transfer -- age of juvenile permissible
     factor to consider. -- The age of the juvenile is a
     permissible factor to evaluate when determining whether a
     transfer to juvenlie court is proper. 

5.   Juveniles -- motion to transfer -- factors considered
     supported denial -- trial court's decision not clearly
     erroneous. -- Based upon the serious and violent nature of
     second-degree murder and the fact that appellant was now
     nineteen years old and, therefore, was not eligible for
     juvenile rehabilitation, the supreme court could not say that
     the trial court's denial of transfer was clearly erroneous.  

     Appeal from Carroll Circuit Court; David S. Clinger, Judge;
affirmed.
     Robert T. Rogers, II, Carroll County Public Defender, for
appellant.
     Winston Bryant, Att'y Gen., by:  Kelly Terry, Asst. Att'y
Gen., for appellee.


     W.H."Dub" Arnold, Chief Justice.
     Appellant, Carmen Anthony Fleetwood, appeals the order of the
Carroll County Circuit Court denying transfer of his case to
juvenile court.  The interlocutory appeal is proper pursuant to
Ark. Code Ann.  9-27-318(h)(Supp. 1995).  Jurisdiction is properly
in this Court pursuant to Ark. Sup. Ct. R. 1-2(a)(11).  We find no
error and affirm.
     Fleetwood was charged with second-degree murder for the
January 3, 1996, killing of Christopher Klein.  Fleetwood called
the police on January 3, 1996, and informed them that he had shot
a man in self-defense.  When the police arrived, Fleetwood
indicated that he was asleep on a sofa in his grandmother's house
and was awakened by Klein standing over him masturbating.  He
claimed that Klein had ejaculated on his face and that he had wiped
the decedent's semen from his face with his shirt.  He said that
the decedent moved toward him and that he fled the room and went
into his grandmother's bedroom.  He claims that the decedent
followed him into the room and cornered him, so he then took a 410
shotgun from the closet and shot Klein.
     The initial DNA test on Fleetwood's shirt showed no evidence
of the decedent's semen; however, a semen stain of the defendant's
was later detected.  A second DNA test indicated a small stain of
semen on the sleeve of the shirt; the DNA of this semen was
consistent with the decedent's.  An autopsy report indicated that
Klein died of a gunshot wound to the head.  
     After a nine month investigation, Fleetwood was charged with
second-degree murder.  Charges were brought in the Circuit Court of
Carroll County.  Fleetwood entered a motion to transfer the matter
to juvenile court based upon the fact that he was a minor when the
act occurred.  Fleetwood was seventeen years old on January 3,
1996, when the shooting occurred.  On March 3, 1996, he turned
eighteen.  At the omnibus hearing on December 18, 1996, the trial
court denied the motion to transfer to juvenile court.  
     At the hearing, the trial court heard testimony from Sue
Campbell, Deputy Juvenile Officer of the 44th Judicial Court in
Wright, County, Missouri.  She testified that Fleetwood was on
probation for a year from November 1993 until December 1994 and
that he violated probation when he engaged in a fight with a fellow
classmate.  
     Chief Earl Hyatt of the Eureka Springs Police Department
testified.  He stated that he investigated the murder of Klein and
that Fleetwood admitted to shooting the decedent.  He also
testified that there was no indication that the decedent was armed
when he cornered Fleetwood in the bedroom.
     Testifying on Fleetwood's behalf was Margie Anderson,
Commissioner for Eureka Springs Park and Recreation Department
where Fleetwood was employed.  She indicated that Fleetwood had
been issued an award for saving a child's life.  She also stated
that Fleetwood had not been the cause of trouble in the community
of Lake Leatherwood during the time that he had lived there with
his grandmother.
     After hearing all of the evidence, the trial court denied the
motion to transfer.  Fleetwood challenges that ruling as an abuse
of discretion.
      Ark. Code Ann.  9-27-318(e)(Supp. 1995) sets forth statutory
factors that a trial court must evaluate when ruling upon a motion
to transfer a matter to juvenile court.   Specifically,  9-27-318
provides:
     (e) 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.

     (f) Upon a finding by clear and convincing evidence that
     a juvenile should be tried as an adult, the court shall
     enter an order to that effect.
     In ruling upon a motion to transfer, a court is not required
to give equal weight to each of the factors enunciated in Ark. Code
Ann.  9-27-318 (e).  Brooks v. State,  326 Ark. 201, 929 S.W.2d 160 (1996); Booker v. State, 324 Ark. 468, 922 S.W.2d 337 (1996);
Sebastian v. State, 318 Ark. 494, 885 S.W.2d 882 (1994).  According
to Ark. Code Ann.  9-27-318(f) (Supp. 1995), a trial court
decision to try a juvenile as an adult must be supported by clear
and convincing evidence.  A trial court decision will not be
overturned unless it is clearly erroneous.  Booker v. State, supra;
Davis v. State, 319 Ark. 613, 893 S.W.2d 768 (1995).
     According to Butler v. State, 324 Ark. 476, 922 S.W.2d 685
(1996), it is the movant's burden to prove the transfer to juvenile
court was warranted.  See also, Williams v. State, 313 Ark. 451,
856 S.W.2d 4 (1993); Pennington v. State, 305 Ark. 312, 807 S.W.2d 660 (1991).  This is a burden appellant has not met.
     The defense conceded that the offense was both serious and
violent but claims that the denial of the motion to transfer was
improper because of the affirmative defense of self-defense.  The
statutory scheme for determining whether a case should be
transferred to juvenile court is not dependent upon affirmative
defenses.  A trial court must evaluate the specific offense and the
individual defendant to determine whether a transfer is warranted. 
It is obvious that Fleetwood was allowed to offer evidence to
support his motion; and we have often held that a trial court is in
the best position to weigh such evidence.  We will not question
such a ruling absent evidence that the trial court was clearly
erroneous.      
     In addition to the offense being of a serious and violent
nature, the State additionally submitted that Fleetwood had turned
eighteen years of age and, therefore, was not eligible for juvenile
rehabilitative programs.  In two recent cases Smith v. State, 328
Ark. 736, ___ S.W.2d ___ (1997); Oglesby v. State, ____ Ark. ___,
___ S.W.2d ___ (June 23, 1997), we held that the age of the
juvenile is a permissible factor to evaluate when determining
whether a transfer is proper.  See also, Maddox v. State, 326 Ark.
515, 931 S.W.2d 438 (1996); Brooks v. State, supra; Hansen v.
State, 323 Ark. 407, 914 S.W.2d 737 (1996).
     Based upon the serious and violent nature of second degree
murder and the fact that Fleetwood is now nineteen years old, we
cannot say that the denial of transfer was clearly erroneous.  We
therefore affirm.
     Affirmed.