Tyrone Duncan v. State of Arkansas

DIVISION I

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

OLLY NEAL, JUDGE CACR00-215

MARCH 7, 2001

TYRONE DUNCAN APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT

APPELLANT [CR98-3414]

v.

HONORABLE JOHN PLEGGE,

STATE OF ARKANSAS CIRCUIT JUDGE

APPELLEE

AFFIRMED IN PART; DISMISSED IN PART

Appellant Tyrone Duncan was charged as an adult in circuit court with felony criminal charges of capital murder, kidnapping, and theft of property. On appeal, appellant argues that the Pulaski County Circuit Court erred in denying his motion to transfer the felony charges against him to the Pulaski County Chancery Court, Juvenile Division, and that this court must dismiss the felony charge of theft of property having a value of $2,500 or more against him because the circuit court lacked jurisdiction over that charge. We agree with appellant that the theft charge must be dismissed for lack of jurisdiction, but we affirm the trial court's denial of transfer of the remaining charges.

The charges arose from the kidnapping and murder of Robert Cameron on August 31, 1998. At the juvenile-transfer hearing, the State introduced a custodial statement appellant gave to police on September 1, 1998. In his statement, appellant admitted his participation in Cameron's death. Appellant stated that on August 31, 1998, he and his cousin, Joey Miller, skipped school and decided to go to Jonesboro by means of stealing a vehicle. Around noon, they knocked on the doors of a number of homes in the Southwest Little Rock area where they eventually approached Cameron and asked for a ride to school. After Cameron agreed to drive them to school, appellant and Miller told Cameron that they needed to get their school supplies from their house. They directed Cameron to drive down a road, and they stopped at a house. Appellant and Miller got out of the car pretending to know the persons who lived at the house, and then returned to Cameron's vehicle. After Cameron turned the car around, Miller told Cameron that he had a flat tire. From that point, appellant stated that Miller grabbed Cameron's car keys, and they put Cameron into the trunk of the vehicle. After appellant and Miller drove around for an hour, they placed Cameron's body in a wooded area before driving to Jonesboro. Appellant stated that Cameron was dead when they opened the trunk and that the outdoor temperature was hot at that time. Appellant stated that he and Miller targeted elderly people "because we thought that it'd just be easy to get their car. . . . "

Following the hearing, the trial court made the following findings in its order denying the motion to transfer:

1. The offense was very serious in nature.

2. The alleged offense was committed in an aggressive, violent, and

premeditated or wilful manner.

3. The offense was against a person with death resulting.

4. There was culpability on behalf of the defendant, including a level

of planning and participation in the offense.

5. The defendant has been adjudicated as a juvenile offender.

6. The defendant has a history of anti-social behavior patterns that

include auto theft, behavior problems, school suspensions and

expulsions due to fighting, truancy, destroying property and fire setting.

7. That the defendant had the sophistication and maturity of a fifteen

year old, the age he was at the time of the offense.

8. There are no facilities or programs available to the Court which are

likely to rehabilitate the defendant prior to the expiration of the Court's

jurisdiction. The defendant has been committed to DYS on two separate

occasions. Services were available to the defendant on those occasions.

Appellant first argues that the circuit court erred in denying his motion to transfer all felony charges against him to juvenile court.

The party seeking a transfer to juvenile court has the burden of proving that a transfer is warranted under Ark. Code Ann. § 9-27-318(e) [now subsection (g)] (Supp. 1999); Heagerty v. State, 335 Ark. 520, 983 S.W.2d 908 (1998). Pursuant to Ark. Code Ann. § 9-27-318(f) [now subsection (h)], the determination that a juvenile should be tried as an adult must be supported by clear and convincing evidence. Ponder v. State, 330 Ark. 43, 953 S.W.2d 555 (1997). Clear and convincing evidence is defined as that degree of proof that will produce in the trier of fact a firm conviction regarding the allegation sought to be established. Id. On appeal of a decision to retain jurisdiction or transfer a case to the juvenile court, the trial court's findings will not be reversed unless clearly erroneous. Landrum v. State, 63 Ark. App. 12, 971 S.W.2d 278 (1998).

Appellant acknowledges that the State was allowed to file the capital felony murder charge and kidnapping charge in circuit court because he was fifteen years of age when the offenses were allegedly committed. He contends, however, that there was testimony established at the hearing on his motion which tended to show that he was capable of being rehabilitated. In support of his argument, appellant relies on the testimony of Jerome Tramble, an after care worker for the Center for Youth and Families. Mr. Tramble testified that he counseled appellant for a very short period of time in the Spring of 1998 and that appellant was cooperative and well mannered. Mr. Tramble testified that he believed appellant could benefit from the Serious Offender Program offered by the Department of Youth Services, but admitted that he saw appellant in 1998 following appellant's second commitment to the Department of Youth Services.

Appellant also contends that the testimony of Dr. Paul Deyoub, who conducted a psychological evaluation of appellant in October of 1996, supports Tramble's testimony regarding his possible rehabilitation through the juvenile system. Dr. Deyoub diagnosed appellant with a reading and conduct disorder, but found that appellant did not communicate any signs of aggressiveness or hostility. He testified that his examination of appellant was taken three years prior to trial and that there was no evidence that appellant suffered from any mental disorder. Dr. Deyoub further testified while appellant could have been a candidate for rehabilitation when he examined appellant in 1996, he could not say that appellant was currently a candidate for rehabilitation.

Martha Blake Norman, appellant's probation officer, testified that appellant has beenconvicted of two felonies and has incurred six charges, of which five are felonies. She testified that appellant was detained on September 23, 1996, for a theft by receiving charge, and that he was given specific conditions of release on September 27, 1996. Ms. Norman testified that appellant did not follow his conditions of release, and that appellant picked up the theft by receiving charge in Pulaski County during the same time he was on probation in Craighead County for a criminal trespass charge. She testified that after appellant was sent to Training School in October of 1996 and to the Pulaski County shelter on December 20, 1996, appellant picked up another theft by receiving charge, a Class B felony. Appellant was then sent to Training School for a second time in February of 1997, at which time the juvenile judge recommended that appellant be sent to the Serious Offender Program. However, Ms. Norman testified that although there were services made available to appellant, he was not "amicable" to any of them. She further stated that appellant continued to pick up charges and was not a candidate for probation. Ms. Norman testified that appellant could not follow rules and was "very oppositional."

From our review of the record, we cannot say that the trial court clearly erred in denying the motion to transfer. Appellant confessed to the crimes charged against him and there was no evidence presented that appellant suffered from any mental disorder. The record shows that prior to committing the present offenses, appellant was provided with several rehabilitative services through the juvenile justice system, including being committed to the Department of Youth Services on two separate occasions. Appellant's probation officer testified that the Department of Youth Services is "kind of the end of the line forjuveniles" and that appellant did not seem to be rehabilitated through the services provided by the juvenile court. We further note that in denying the motion to transfer, the trial court stated that its findings were made in accordance with Arkansas Code Annotated section 9-27-918.

For these reasons, we affirm the trial court's denial of appellant's motion to transfer the charges of capital murder and kidnapping.

For his second point on appeal, appellant asks this court to dismiss the felony charge of theft of property against him because the circuit court lacked jurisdiction over this charge. Appellant argues that he was fifteen years of age at the time the offenses were committed in this case and that pursuant to Ark. Code Ann. § 9-27-318(b)(2) (Repl. 1998), the State lacked authority to file against him in circuit court the felony charge of theft of property with a value of $2,500 or more. We agree.

Though appellant did not raise this issue below, we have stated that jurisdiction is the power of a court to hear a case on its merits and it may be raised at any time, including being raised for the first time on appeal. See Barnett v. City of Dardanelle, 56 Ark. App. 131, 938 S.W.2d 527 (1997).

Arkansas Code Annotated section 9-27-318(b)(2) provides that if a juvenile is 14 or 15 years of age at the time the delinquent act occurs, the prosecuting attorney may charge him with certain enumerated crimes, including capital murder and kidnapping. See also Rice v. State, 330 Ark. 257, 954 S.W.2d 216 (1997). Theft of property is not a listed charge. Thus, the circuit court does not have jurisdiction to try appellant for the theft charge. Theprosecutor could have filed the theft charge in juvenile court and then moved to transfer it to circuit court as a charge arising out of the same course of conduct underlying the capital murder and kidnapping charges. Ark. Code Ann. § 9-27-318(c) (Repl. 1998). The State did not do so in this case. We dismiss the theft of property charge for lack of jurisdiction.

Affirmed in part; dismissed in part.

Robbins, J., agrees.

Griffen, J., concurs.

Wendell L. Griffen, Judge, concurring. I agree that we should affirm the trial court's decision to retain jurisdiction of appellant's felony charges of capital murder and kidnaping. I write separately to unequivocally state that youthful felony offenders with a proven track record demonstrating their inability or refusal to be rehabilitated in the juvenile system should not expect our appellate courts to reverse a circuit court's decision to retain jurisdiction merely because of the offender's age. Arkansas law provides that when a circuit court finds that clear and convincing evidence exists to support trying a juvenile as an adult, it must enter an order to that effect. See Ark. Code Ann. § 9-27-318 (h) (Supp. 1999). Indeed, we have repeatedly observed that we will not reverse a circuit court's decision to retain jurisdiction unless we are firmly convinced that a mistake has been made, i.e., that the decision is clearly erroneous. See Ray v. State, 65 Ark. App. 209, 215, 987 S.W.2d 738, 741 (1999).

Although our juvenile court system has undergone drastic changes since it was implemented in 1911, the system's primary goal continues to be rehabilitation of the juvenile. Young offenders under the age of eighteen do not have a fundamental right to be treated as a juvenile, and our state legislature has listed certain enumerated offenses that if committed by those fourteen or fifteen yearsof age may be transferred to circuit court. See Sarah M. Cotton, Comment, When the Punishment Cannot Fit the Crime: The Case for Reforming the Juvenile Justice System, 52 Ark. L. Rev. 563 (1999).

It is disturbing that appellant urges that we reverse the circuit court's decision to retain jurisdiction of his felony charges of capital murder and kidnaping because of his age and his "prospects for rehabilitation." The State introduced into evidence uncontroverted reports that listed appellant's previous juvenile history of multiple auto thefts, behavior problems, school suspensions, and school expulsions due to fighting, truancy, destroying property and fire setting. It also presented evidence that appellant had been convicted of two separate felony counts, and that he had six charges pending, including five felonies, despite being on probation.

Youthfulness is no excuse for criminal conduct. Although the juvenile system exists to provide wayward youth an opportunity to correct their ways, the system is not designed to coddle repeat offenders who demonstrate a pattern of lawlessness.