Otis v. State

• Decision Date: 22 January 2004
• Docket Number: No. CR 03-334.,CR 03-334.
• Citation: 355 Ark. 590,142 S.W.3d 615
• Parties: Kirk Edward OTIS, v. STATE of Arkansas.
• Court: Arkansas Supreme Court

142 S.W.3d 615

355 Ark. 590

Kirk Edward OTIS, v. STATE of Arkansas.

No. CR 03-334.

Supreme Court of Arkansas.

January 22, 2004.

Appeal from the Circuit Court, Arkansas County, F. Russell Rogers, J Elizabeth S. Johnston and Dorcy K. Corbin, Arkansas Public Defender Commission, Little Rock, for appellant.

Mike Beebe, Att'y Gen., by: Linda Blackburn, Ass't Att'y Gen., Little Rock, for appellee.

JIM HANNAH, Justice.

Appellant Kirk Otis appeals the order of the Arkansas County Circuit Court denying his motion to transfer his case to juvenile court pursuant to Ark.Code Ann. § 9-27-318 (Repl.2002). He argues that the trial court's decision to try him as an adult is clearly erroneous in that the decision is not supported by clear and convincing evidence. He also argues that § 9-27-318 is unconstitutional in that the application of the statute violated his fundamental due process rights and equal protection rights under both the United States Constitution and the Arkansas Constitution.¹ We hold that the trial court was not clearly erroneous in determining that there was clear and convincing evidence to try Otis as an adult. We also hold that the application of § 9-27-318 did not violate Otis's fundamental due process rights and equal protection rights.

Facts

On July 27, 2001, Otis was charged by felony information in Arkansas County Circuit Court with the offense of capital murder. The information alleged that on July 20, 2001, Otis robbed, shot, and killed Barney Smith while Smith sat on the steps of his front porch. At the time of the murder, Otis was fourteen-years-old.

Otis filed a motion to have his case transferred to juvenile court. In addition, Otis filed a pretrial motion, in which he argued that § 9-27-318 was unconstitutional, and on July 29, 2002, a hearing commenced on both motions before the trial court.

At the hearing, Otis first presented testimony from his paternal grandmother Catherine Geans. Geans testified that Otis's parents were both fourteen-years-old when Otis was born. She stated that Otis had been living with her ever since he started kindergarten, and that prior to living with her, Otis lived with his maternal grandmother. Geans stated that Otis is easily persuaded and manipulated by his friends. She stated that Otis did not finish the seventh grade because he was suspended from school for fighting. She stated that when Otis was fourteen-years-old, his curfew was ten o'clock. However, she testified that Otis did not always come in at ten o'clock, and that when he did not, she did not go and look for him.

Geans testified that the Department of Human Services became involved with the family when Otis's father whipped him and left a mark on his back. She testified that due to his behavioral problems, Otis had previously been admitted to both Pinnacle Point and Bridgeway, where he was placed on Ritalin, as well as other medication. Geans stated that when Otis was arrested, he was no longer on medication. She stated that she stopped giving the medication to Otis because "[i]t didn't seem to be helping him any."

Geans also testified about Otis's relationship with her husband and Otis's grandfather Edward Geans. She stated that, after Edward had been drinking, he would aggravate Otis. She also stated that Edward had whipped Otis with a belt.

Geans stated that she thought Otis was immature. In explaining Otis's level of maturity, she stated that, at the time he was arrested, Otis mostly watched the Cartoon Network, and that his favorite shows were Pokemon and Dragon Ball-Z.

Treda Rice-Vance, a DHS supervisor, stated that she opened a file on Otis after DHS received a physical abuse report against Otis's father. According to Otis, his father came over to his grandparents' house and whipped him with an extension cord. Rice-Vance stated that Otis's father told her he had hit Otis with a piece of rubber. Rice-Vance stated that she never saw the item that Otis was whipped with, but whatever it was, it left marks on Otis. Rice-Vance stated that Otis's father told her he disciplined Otis because he wanted Otis to be respectful to his grandparents. She also stated that Otis's father told her he could not keep Otis because he was living in Pine Bluff with another lady and her children. Rice-Vance stated that it was her understanding that Otis was living with his paternal grandparents because his mother was allegedly abusing drugs and unable to care for Otis. Rice-Vance stated that after she opened a file on Otis, she visited the home at least once a week. She stated that DHS eventually closed the file because Otis was doing better and his grandmother was not having any problems with him.

Fonda Scherm testified that she became familiar with Otis when she was a social worker at the Stuttgart Public Schools. Scherm could not remember what grade Otis was in when she became involved with him, but she stated that Otis was young, and in either the first, second, or third grade. She stated that Otis got into trouble quite a bit, and that if the school sent him home for disciplinary reasons, she would often take Otis home if his grandmother could not leave work to come and pick him up. Scherm also testified that she paid visits to Otis's home when he missed several days of school or when Otis was misbehaving at school. She stated that she visited Otis's home when he had been suspended from school and his family members failed to make appointments to get Otis readmitted to school. She explained that before a child can be readmitted to school after a suspension, a parent must come to school with the child and discuss the suspension with school administrators.

Scherm also testified that in 1995 or 1996, Otis fixed breakfast for his grandfather one morning and put something, such as Clorox, in his grandfather's eggs. Scherm stated that, as a result of this incident, a Family In Need of Services ("FINS") petition was filed, and Otis was placed in either Bridgeway or Pinnacle Point.

Scherm stated that she saw Otis shortly after he was arrested on the present charge. She stated that he asked her what was going to happen to him, and that he wanted to know if he was going to Alexander or C-Step. She stated that Otis did not "have a concept that it was that—bigger than that." She stated that she did not consider Otis to be a mature fourteen-year-old and that in her experience with Otis, she did not believe that Otis had ever lived in a structured environment.

Otis next presented testimony from Melanie McCord Bradberry, Otis's classroom teacher at the Juvenile Detention Center in Arkansas County. She stated that Otis was on the fifth grade to seventh grade level, depending on the subject area. She stated that when Otis first arrived at the center, she did not see in Otis a great desire for achievement. However, she stated that since Otis has been in her classroom, he has seen that he can achieve, and that the more he achieves, the more he wants to achieve. She stated that, after she administers tests, Otis is interested in seeing his test results and that most of the time, Otis is enthusiastic about learning. She stated that the worst behavior problem she had experienced with Otis was that on occasion, Otis had used foul language. Bradberry stated that, in her opinion, Otis had made progress because the program at the center was structured. She also stated that she had never seen Otis exhibit any aggressive behavior.

Otis also presented testimony from Robert J. McCracken, the facility director at Cornell Alexander Youth Services Center. McCracken testified about JUMP, a program for serious offenders. He explained that JUMP was a program with a highly structured environment, where activities are scheduled for the children from the time they wake up at six-thirty in the morning until the time they go to bed at nine o'clock in the evening. He also stated that children in JUMP participated in individual counseling each week and family therapy, if appropriate. In addition, McCracken stated that children in the program participated in two group therapy sessions each day. He testified that in group therapy, the children discussed issues such as anger management, substance abuse, and cognitive restructuring. McCracken stated that presently there were convicted murderers in the program.

McCracken testified that if Otis were convicted as a juvenile, he would most likely go to JUMP. He stated that the JUMP program's philosophy was that people can change, and that JUMP, with its ratio of six clients per staff member, as opposed to an adult prison, with a ratio of fifty or sixty inmates per corrections officer, was conducive to helping offenders change. On cross-examination, McCracken was unable to provide any data concerning the success rate of the program.

Dr. Phillip Derdeyn, a child and adolescent psychiatrist, testified about Otis's prior hospitalizations. He stated that Otis was admitted to Pinnacle Point after he put some rubbing alcohol in his grandfather's meal. He stated that Otis told him that he did this because he was mad at his grandfather for hitting him in the eye with a firecracker. Dr. Derdeyn stated that, while at Pinnacle Point, Otis was diagnosed with Oppositional Defiant Disorder and placed on Mellaril, a tranquilizer. He also stated that Otis was diagnosed as having borderline intellectual functioning.

Dr. Derdeyn stated that Otis was admitted to Bridgeway after he was "[g]etting angry at school, kicking desks, shouting obscenities at the teacher and principal, [and] making suicidal statements." Dr. Derdeyn also stated that, at that time, Otis expressed a desire to live in a foster home. He stated that during his stay at Bridgeway, Otis was treated with Tegratol.

Dr. Derdeyn stated that several months after leaving Bridgeway, Otis was admitted to Meridell, a treatment facility in Austin, Texas. While at Meridell, Otis was treated with Tegratol. Dr. Derdeyn stated that Otis's most recent...