Ashing v. State, CR
| Decision Date | 21 January 1986 |
| Docket Number | No. CR,CR |
| Citation | 288 Ark. 75,702 S.W.2d 20 |
| Parties | Michael ASHING et al., Appellants, v. STATE of Arkansas, Appellee. 85-182. |
| Court | Arkansas Supreme Court |
John W. Settle, Orville C. Clift, Fort Smith, for appellants.
Steve Clark, Atty. Gen. by Mary Beth Sudduth, Asst. Atty. Gen., Little Rock, for appellee.
Appellants Michael Ashing and Brenda Taulbee were charged with first degree murder of Iris Taulbee, Brenda's mother, who was shot and killed on August 23, 1984. A motion was made to transfer the cause to juvenile court on the grounds that Michael Ashing was sixteen and Brenda Taulbee was fourteen the date of the murder. The motion was denied after a hearing and appellants were tried in circuit court. The jury returned a verdict of guilty of murder in the first degree, and Taulbee and Ashing were each sentenced to fifteen years.
Act 397 of 1981 [Ark.Stat.Ann. § 45-420 (Supp.1983) ] deals with the procedure for transfer of a juvenile's case and provides in part:
In making the decision whether to retain jurisdiction of the case or to transfer the case to another court having jurisdiction over the matter, the court shall consider only the following factors:
(a) The seriousness of the offense and whether violence was employed by the juvenile in the commission of the offense.
(b) 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.
(c) The prior history, character traits and mental maturity, and any other factors which reflect on the juvenile's prospects for rehabilitation.
On appeal appellants maintain that the court did not take into consideration all three elements of the statute. We reject the argument.
The first case to apply this statute was Franklin v. State, 7 Ark.App. 75, 644 S.W.2d 318 (1983). There the court noted that under an earlier act, Act 451 of 1975, the question of the transfer of a case of this nature to the juvenile court was discretionary with the trial judge and our cases had held the ruling would not be disturbed unless that discretion was abused. The Franklin court went on to say that under the current act, Act 397 of 1981, the judge shall, on his own motion or the motion of either party, conduct a hearing on the question of transfer and noted that the act narrowed the exercise of the judge's discretion to a consideration of the three factors mentioned in the act.
In Franklin, the appellant had committed rape, aggravated robbery and theft. The court said the "seriousness of the crimes and the violence with which they were perpetrated would alone appear to be sufficient to sustain the court's refusal to transfer these causes to the juvenile court." The court found the second criterion not fully applicable, for there were no adjudicated offenses from which past efforts to treat and rehabilitate the juvenile could be evaluated. The court noted, however, there had been previous criminal activity. There was testimony that the prospects of appellant's rehabilitation were poor--violent temper, hostility, and lack of remorse. And volition and premeditation were demonstrated by deliberate attempts to cover up the crime. In overruling the motion to transfer, the trial judge gave his reasons and demonstrated that consideration had been given to all of the criteria set forth in § 45-420.
In this case, it does not appear that proof of each factor was necessarily adverse to the appellants. However, there is no requirement in the statute that equal weight be given to each factor, or that proof on all factors must be against the appellants in order for the court to retain jurisdiction. Other jurisdictions with similar statutes have reached the same conclusions. 1 People v. Taylor, 76 Ill.2d 289, 29 Ill.Dec. 103, 391 N.E.2d 366 (1979); Hazell v. State, 12 Md.App. 144, 277 A.2d 639 (1971).
Here the nature of the crime was given primary consideration by the trial court. The appellants were dating each other and Mrs. Taulbee disapproved. The appellants discussed how they might murder her so they could "get on with their lives," and agreed that Michael would kill Mrs. Taulbee. He came to the Taulbee trailer late at night with a gun belonging to his father. Michael told Mrs. Taulbee there was some trouble at his house and while they discussed the matter he shot her in the back of the head. Michael and Brenda left the trailer but returned after a few minutes to see if Mrs. Taulbee was still alive. Michael then proceeded to shoot Mrs. Taulbee until the gun was empty. Michael and Brenda disposed of the murder weapon and spent several hours deciding how to conceal their participation in the murder. When initially questioned by police, Brenda relayed the story she and Michael had devised.
The seriousness and violence of this crime might alone be sufficient to sustain the refusal to transfer to juvenile court, but additionally, there was no significant showing on behalf of the appellants for the prospects of rehabilitation. Under the circumstances the trial court's discretion in refusing to transfer the cases was not abused.
The appellant urges there is no "analysis" by the trial court in reaching its conclusion. There is no requirement in the act that a statement of reasons be given, even so, the record shows the foundation of the court's finding and provides a sufficient basis for review. It is clear enough the trial court found that evidence in support of the motion to transfer did not outweigh the seriousness of the offense. Quoting from the record The Court just feels that after considering the evidence and the facts in this case that a charge of first degree murder as indicated by the facts in this case is not one that should be dealt with by the Juvenile...
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