Lamar Burrell v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN E. JENNINGS, JUDGE

DIVISION I

CA 01-325

October 3, 2001

LAMAR BURRELL APPEAL FROM PULASKI COUNTY

APPELLANT CIRCUIT COURT

VS.

HONORABLE DAVID BOGARD,

CIRCUIT JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Lamar Burrell was fifteen years old when he allegedly committed capital murder, two counts of aggravated robbery, and criminal attempt to commit capital murder. He was charged as an adult, and he moved to transfer his case to juvenile court. The circuit judge denied his motion. Appellant argues on appeal to this court that the circuit judge erred in denying his motion to transfer. We find no error and affirm.

Officer Steve Moore testified that Cedric Gatewood was killed and Andre Jordan was shot and paralyzed on the night of September 18, 1999. Moore stated that Keeyon James was identified as a suspect by Jordan and by Gatewood's girlfriend. James made a statement that implicated others, including appellant. Moore testified that it appeared as though two different weapons had been used during the shooting. He also stated that appellant went to Arkansas Children's Hospital the night of the shooting with a gunshot wound to the foot, which was consistent with James's statement that appellant had somehow been shot in the foot during the shooting.

Minnie Walker, appellant's mother, testified that appellant had been hanging out with older boys because he was big for his age and that he was easily influenced by others. She stated that since appellant had been incarcerated, he had become more withdrawn and seemed to realize the seriousness of the crimes with which he was charged. Walker felt that appellant would be receptive to the programs in the juvenile division and that he would only get worse if he stayed in the adult system. Walker testified that appellant had continued to associate with gangs even though she had done everything she could do to keep him away from those individuals.

In denying appellant's motion to transfer to the juvenile court system, the trial judge noted the serious nature of thecrimes alleged, the fact that appellant had been previously adjudicated delinquent on felony charges in juvenile court on five separate occasions, the fact that he seemed to be beyond juvenile rehabilitation, and appellant's age at the time of the offense and his age at the time he made the motion.

A circuit court's decision to retain jurisdiction of criminal charges against a juvenile must be supported by clear and convinc ing evidence. Ark. Code Ann. § 9-27-318(h) (Supp. 1999); McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997). We do not reverse a circuit court's decision to retain jurisdiction unless the decision is clearly erroneous. Kindle v. State, 326 Ark. 282, 931 S.W.2d 117 (1996).

When deciding whether to retain jurisdiction of or to transfer a case to juvenile court, the factors for the circuit court to consider are the seriousness of the alleged offense; whether the juvenile used violence in committing the alleged offense; whether the alleged offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted; the culpability of the juvenile, including his level of participation in the alleged offense; whether the alleged offense is part of a repetitive pattern of adjudicated offenses; the sophistication and maturity of the juvenile; whether there are programs available that are likely torehabilitate the juvenile; whether the juvenile was part of a group in the commission of the alleged offense; written reports relating to the juvenile's mental, physical, educational, and social history; and any other factor deemed relevant by the court. Ark. Code Ann. § 9-27-318(g) (Supp. 1999). A circuit court does not have to give equal weight to each factor, nor does evidence have to be presented as to each factor. Cole v. State, 323 Ark. 136, 913 S.W.2d 779 (1996).

Appellant argues that there are fact questions as to whether he was even involved, and he points out that he was not identified by Jordan. This argument seems to go to the factor having to do with the juvenile's level of participation. Ark. Code Ann. § 9-27-318 (g)(4). A court may no longer base its decision on a motion to transfer solely upon the allegations contained in the information but, instead, there must be some evidence to substantiate the serious and violent nature of the charges contained in the information. Thompson v. State, 330 Ark. 746, 958 S.W.2d 1 (1997). Here, James implicated appellant in his statement to police. The fact that appellant sought medical attention for his gunshot wound corroborated James's statement about appellant's involvement. An accomplice, even of minor age, is responsible for the activities of his cohort. Bell v. State, 317 Ark. 289, 877 S.W.2d 579 (1994). Further, the association with the use of a weapon in the course ofthe crimes is sufficient to satisfy the violence criterion, and this factor alone is enough for a circuit court to retain jurisdic tion of a juvenile. See Guy v. State, 323 Ark. 649, 916 S.W.2d 760 (1996). We cannot say that the circuit court erred in its decision to retain jurisdiction.

Affirmed.

Stroud, C.J., and Hart, J., agree.