Ray v. State

• Decision Date: 08 March 2001
• Docket Number: No. CR 00-471.,CR 00-471.
• Citation: 40 S.W.3d 243,344 Ark. 136
• Parties: Tony Alan RAY v. STATE of Arkansas.
• Court: Arkansas Supreme Court

40 S.W.3d 243

344 Ark. 136

Tony Alan RAY v. STATE of Arkansas.

No. CR 00-471.

Supreme Court of Arkansas.

March 8, 2001.

Fields, Tabor, Langston, & Shue, P.L.L.C., by Daniel Shue, Fort Smith, for appellant.

Mark Pryor, Att'y Gen., by Brad Newman, Ass't Att'y Gen., Little Rock, for appellee.

RAY THORNTON, Justice.

Appellant, Tony Alan Ray, shot and killed Lisa G. Lewis in the course of burglarizing her home in Van Buren. A sixteen-year-old juvenile at the time of the crime, appellant was charged as an adult with capital murder, burglary, and theft of property, and he was sentenced by jury to life imprisonment without parole. On appeal, appellant argues that the trial court denied his motion for directed verdict based upon the insufficiency of the felony information. Appellant further argues that the trial court should have suppressed his inculpatory statement on the following grounds: (1) that his statement was obtained in violation of Ark.Code Ann. § 9-27-317(g)(2)(A)(ii) (Repl.1998); (2) that his statement was made involuntarily, and (3) that he had not waived his right to speak to his parent, as prescribed by the above statute. We find no reversible error and affirm.

The sufficiency of the evidence to support a conviction on all counts is not challenged, and only a brief summary of the facts will be provided. On June 24, 1997, Van Buren police officers were called to the home of Lisa Lewis, where they found her dying of multiple gunshot wounds. After making a dying declaration, the victim was transported to the hospital, where she died later that same day. As a result of the victim's 911 call, appellant and his accomplice were found in the victim's automobile, and they were taken to the Van Buren Police Department for questioning.

Detective Mick Molnar of the Van Buren Police Department interviewed appellant regarding the murder of Ms. Lewis. Before the interview, he contacted the prosecuting attorney, who informed the officer that appellant would be charged as an adult. During the questioning, the police officer followed procedures applicable to adults. He provided appropriate Miranda warnings and advised appellant of his right to consult an attorney, but the officer did not afford him the opportunity to talk with his parent, as provided for juveniles by Ark.Code Ann. § 9-27-317(g) (Repl.1998). At a hearing on appellant's motion to transfer, the circuit judge stated that appellant was not afforded the benefit of juvenile rights because he was charged as an adult.

Appellant then filed an interlocutory appeal with the court of appeals. Ray v. State, 65 Ark.App. 209, 987 S.W.2d 738 (1999) ("Ray I"). Citing Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993), the court of appeals held that because appellant was prosecuted as an adult, he was subject to the same procedures as prescribed for adults. Ray I, supra. Following this appeal, the case was returned to the trial court, and as a result of a conviction of capital murder by the jury, appellant was sentenced to life imprisonment without parole. Appellant now brings an appeal from this judgment.

I. Felony information

While the first point on appeal is couched as a denial of a motion for directed verdict, the thrust of the assertion of error is the caption of the felony information. Appellant was charged with capital murder, burglary as a class B felony, and theft of property. Count I of the information alleged that appellant and Hinkston, his accomplice, "during the commission of the offense of Burglary and in the course and furtherance of that felony, caused the death of Lisa G. Lewis under circumstances manifesting extreme indifference to the value of human life." In Count II, the felony information charged that appellant committed the offense of burglary when he "did enter or remain unlawfully in the residence of Lisa G. Lewis with the purpose of committing the offense of Theft of Property..." (emphasis added). Count III of the information alleged that appellant did "take or exercise unauthorized control over the property, an automobile valued in excess of $2,500, of Lisa G. Lewis, with the purpose of depriving the owner thereof." Appellant never challenged the felony information before trial.

When appellant moved for a directed verdict at the end of the State's case-inchief, appellant argued that the State failed to prove the offense of capital murder because there was no offense of "burglary" in Arkansas. He further argued that Arkansas distinguishes between the offenses of residential burglary and commercial burglary, and that the information was void for vagueness. Appellant's counsel stated:

As to Count I, Capital Murder, our first motion for a directed verdict deals with the charge, itself. The information alleges that during the commission of a burglary, it's the defense's position, that there is no charge of burglary in the State of Arkansas. When the legislature met in 1993, under Acts 442 and 552, they created the acts of commercial burglary and residential burglary. Those are the two criminal offenses in Arkansas. There is no criminal offense of burglary, anymore. For that reason, it is void for vagueness; that it does not apprize sic a person of ordinary intelligence of what the law in the State of Arkansas is, because there is no offense of burglary.

The State responded by stating that the felony information refers to residential burglary because the information refers to the act of entering and remaining "in the residence of Lisa G. Lewis" for the purpose of stealing property. The trial court denied appellant's motion. Appellant renewed his motion on the same grounds at the close of the evidence, and the court again denied his motion.

Here, appellant does not attack the sufficiency of the evidence to support a conviction, but argues that the offense was not properly captioned in the information. Appellant admits in his brief that "there is no doubt that the State proved the elements of Residential Burglary." Appellant draws a distinction between residential burglary and commercial burglary. See Ark.Code Ann. § 5-39-201(a)(1), (b)(1) (Repl.1997). The felony information under which appellant was charged clearly states that appellant and his accomplice entered Ms. Lewis's residence and that the offense was a class B felony.

A nonjurisdictional challenge to the sufficiency of an information must be raised prior to trial to be preserved for appellate review. McNeese v. State, 334 Ark. 445, 976 S.W.2d 373 (1998); Sawyer v. State, 327 Ark. 421, 938 S.W.2d 843 (1997). A directed-verdict motion is not a substitute for a timely-made motion to dismiss an allegedly insufficient information. See Williams v. State, 331 Ark. 263, 962 S.W.2d 329 (1998). Appellant's attempt to challenge the information was untimely, and more importantly, appellant could have requested that the State file an amended complaint prior to trial. For these reasons, we affirm the trial court's denial of appellant's directed-verdict motion.

II. Arkansas Code Annotated § 9-27-317(g)(2)

We next address the question whether the provisions of Ark.Code Ann. § 9-27-317(g)(2)(A)(ii)¹ are applicable to a juvenile whom the prosecuting attorney has exercised his discretion to charge as an adult. This issue was raised during the interlocutory appeal in Ray I, supra, and was resolved on the basis of our holding in Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993), where we stated that the section of the juvenile code requiring parental consent to a waiver, found in Ark.Code Ann. § 9-27-317, is limited to proceedings in the juvenile division of chancery court. Id.

At the outset, we note that the prosecuting attorney has the discretion to decide whether charges brought against a sixteen-year-old shall be brought in juvenile court, or whether the offender shall be tried as an adult in circuit court. Ark. Code Ann. § 9-27-318 (Repl.1998). The statute provides in relevant part:

A circuit court and a juvenile court have concurrent jurisdiction and a prosecuting attorney may charge a juvenile in either court when a case involves a juvenile:

(1) At least sixteen (16) years old when he engages in conduct that, if committed by an adult would be any felony.... Id.² We have held that the General Assembly has not based court assignment in juvenile court upon the nature of the offense but upon what the prosecutor chooses to charge. Walker v. State, 309 Ark. 23, 827 S.W.2d 637 (1992).

The legislature has distinguished the rights of those juveniles charged as adults from the more expansive rights available in juvenile proceedings, and we have adopted the general rule that statutes expressing the rights of juveniles in juvenile court are not applicable to juvenile defendants being tried in circuit court. In Misskelley v. State, 323 Ark. 449, 915 S.W.2d 702 (1996), we stated:

The legislature recognized in Ark.Code Ann. § 9-27-318(c) (Repl.1993) that a juvenile over the age of sixteen may be prosecuted as an adult where his act would constitute a felony if committed as an adult. This is an acknowledgment that an older juvenile who commits a serious crime may not receive the protection of juvenile proceedings, but will face the consequences as an adult. The same rationale applies to the statute at hand. A juvenile over the age of sixteen who commits a crime that would subject him to adult punishment will not be accorded the protection of full parental involvement in the interrogation process.

Id. (emphasis added).

We have also held that the Arkansas Juvenile Code does not refer to proceedings in circuit court, but rather, it applies only to proceedings in juvenile court. Ring v. State, 320 Ark. 128, 894 S.W.2d 944 (1995). In Ring, supra, we affirmed the denial of the juvenile's motion to transfer, and in determining whether the protections of Ark.Code Ann. § 9-27-317(f) were afforded to the juvenile in that case, we concluded:

In Boyd v. State, 313 Ark. 171, 853 S.W.2d 263 (1993), this...