Walker v. State

• Decision Date: 28 January 1991
• Docket Number: No. 90-243,90-243
• Citation: 803 S.W.2d 502,304 Ark. 393
• Parties: Robert Christian WALKER, Appellant, v. STATE of Arkansas, Appellee.
• Court: Arkansas Supreme Court

Page 502

803 S.W.2d 502

304 Ark. 393

Robert Christian WALKER, Appellant, v. STATE of Arkansas, Appellee.

No. 90-243.

Supreme Court of Arkansas.

Jan. 28, 1991.

Robert L. Pierce, North Little Rock, for appellant.

C. Kent Joliff, Asst. Atty. Gen., Little Rock, for appellee.

BROWN, Justice.

This case comes to us on an interlocutory appeal from the trial court's denial of appellant Robert Christian Walker's motion to transfer his case to juvenile court.

We affirm the decision to deny the transfer.

The facts, though sketchy at this initial stage of the criminal process, are gleaned from the criminal information, testimony from appellant's witnesses at the hearing on the motion to transfer held on August 13, 1990, and statements of counsel for appellant and the prosecuting attorney. The criminal information reads:

Chris Piazza, Prosecuting Attorney of the Sixth Judicial District of Arkansas, in the name, by the authority, and on behalf of the State of Arkansas charges ROBERT CHRISTIAN WALKER a/k/a ROBERT CHRISTOPHER WALKER a/k/a CHRIS WALKER with the crime of violating Ark.Code Ann. § 5-10-102 MURDER IN THE FIRST DEGREE committed as follows, to-wit: The said defendant(s), in Pulaski County, on or about June 25, 1990, unlawfully, feloniously, and with a purpose of causing the death of another person, did cause the death of EDWARD C. COOPER by shooting him to death, against the peace and dignity of the State of Arkansas.

The prosecutor fleshed out these facts somewhat by his statement to the court at the hearing:

... we expect to be able to show that while Mr. Walker came to the scene, he took a .22 rifle from another person, asked to use it, fired once into the pondthere the lake, and then made a statement that he was going to shoot a nigger. And other folks will testify that they heard that. He aimed the rifle and fired, and Mr. Edward C. Cooper fell dead. The State has charged first degree murder under the theory that that was a purposeful act in aiming the weapon.

Mr. Pierce, appellant's defense counsel, responded by saying: "There has been some distorted publicity about who made the statement, how it was made, under what circumstances...." He then emphasized two factors to negate any premeditation on appellant's part. First, the rifle involved was not appellant's rifle and was not brought to the scene by him. Secondly, an investigative report received by Mr. Pierce from the prosecutor showed that the distance from the point where the shot was fired to where Mr. Cooper was standing was 532 feet.

Other essential facts such as the exact location of the incident, the persons present, the time of day, and prior contact between appellant and Mr. Cooper, if any, were not presented to the trial court at the hearing and are not part of the record on review.

In support of his motion, appellant presented the testimony of seven witnesses who testified that he was "an average fourteen-year-old" and was polite, helpful, honest, and a good neighbor. He was further described as "a good kid" who played baseball and liked to fish and who had shown no previous tendency toward violence or racial hatred. Appellant's mother testified that appellant had never made a racial slur and that the family lived in a racially mixed neighborhood. She added that appellant had never owned a gun or gone hunting and that since the incident appellant had been in counseling with a psychologist.

After the testimony from appellant's witnesses and statements by counsel for both sides, the trial judge read the applicable statute, Act 273 of 1989 [Ark.Code Ann. § 9-27-318 (Supp.1989) ], and then said:

All right, counsel, we're acting under 90-27-318 [sic ] which states that when a case involves a juvenile aged 14 or 15 years at the time the delinquent act occurred, the Prosecuting Attorney has the discretion to file charges in Circuit Court for an alleged act which constitutes capital murder, murder in the first degree, murder in the second degree, kidnapping, aggravated robbery, or rape. This Court shall hold a hearing within 90 days of the filing of the charges to determine whether to retain jurisdiction of the juvenile in Circuit Court or to waive jurisdiction and transfer the case to Juvenile Court. Then further on down in making the decision to retain jurisdiction or transfer the case, the Court shall consider the following factors. One, the seriousness of the crime and whether violence was employed in the commission of the offense. Two, whether the offense is part of a repetitive pattern of adjudicated offenses. Three, prior history, character traits, mental maturity and any other factor which reflects upon the juvenile's prospects for rehabilitation. Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the Court shall enter an order to that effect. That's what we've been doing here this morning, and those are the factors that the Court does consider. Defense has called some good folks to bear upon factors two and three. Counsel, I would agree that any violent death is always tragic and serious. And in commenting upon these factors or making findings upon these factors, I'm seriously limited by the fear of commenting on the evidence which may later come to light in the case. I don't think--I also agree that the case is not simple or straightforward. There are differences between counsel in what exactly happened, but, based upon this statute, 90-27-318 [sic ], the factors the Court should consider, the testimony offered at trial here today, the statements of counsel, this Court feels by clear and convincing evidence that these facts and circumstances should be determined by a jury and not by juvenile. Your Motion to Transfer is hereby denied.

Act 273 controls the procedure in juvenile transfer cases. It reads in pertinent part:

....

(b)(1) When a case involves a juvenile age fourteen (14) years or fifteen (15) years at the time the alleged delinquent act occurred, the prosecuting attorney has the discretion to file charges in circuit court for an alleged act which constitutes capital murder, murder in the first degree, murder in the second degree, kidnapping in the first degree, aggravated robbery, or rape.

(2) The circuit court shall hold a hearing within ninety (90) days of the filing of charges to determine whether to retain jurisdiction of the juvenile in circuit court or to waive jurisdiction and transfer the case to juvenile court.

....

(d) Upon the motion of the court or of any party, the judge of the court in which a delinquency petition or criminal charges have been filed shall conduct a hearing to determine whether to retain jurisdiction or to transfer the case to another court having jurisdiction.

(e) In making the decision to retain jurisdiction or to transfer the case, the court shall consider the following factors:

(1) The seriousness of the offense, and whether violence was employed by the juvenile in the commission of the offense;

(2) 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; and

(3) The prior history, character traits, mental maturity, and any other factor which reflects upon the juvenile's prospects for rehabilitation.

(f) Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the court shall enter an order to that effect.

....

In most significant respects, Act 273 is a combination of two previous Arkansas statutes which were repealed with the adoption of Act 273 in 1989. See Ark.Stat.Ann. §§ 41-617 and 45-420 (Supp.1985). One important addition incorporated into Act 273 by the Arkansas General Assembly was the requirement that a finding to retain a juvenile in circuit court be based upon clear and convincing evidence.

Appellant first asserts on appeal that though he filed the motion to transfer the case to juvenile court, the prosecutor had the burden of proving that the case should remain in circuit court. He focuses particularly on paragraph (f) of Act 273 which requires that a trial court's finding to retain jurisdiction be by clear and convincing evidence. Appellant argues that because the prosecutor filed the charge against him in circuit court and resisted the transfer, he had the burden of proving to the trial court that appellant should be tried as an adult. But the statute does not say that. Rather, the statute says the finding by the court to try a juvenile as an adult must be by clear and convincing evidence. It is silent on which party has the burden of proof.

We think the better rule is that the moving party seeking to transfer a defendant from one jurisdiction to another has the burden of justifying that transfer by proof and persuasion. That certainly comports with the general proposition in law that the party seeking to establish a proposition has the burden of proving it. Edwin F. Armstrong & Co. v. Ben Pearson, Inc., 294 F.Supp. 163 (D.C.Ark.1967), aff'd Leisure Group, Inc. v. Edwin F. Armstrong & Co., 404 F.2d 610 (8th Cir.1968). Other jurisdictions have so held in juvenile transfer cases. In 1990 the Superior Court of Pennsylvania held in a murder case that to effectuate a transfer of a juvenile to juvenile court, the juvenile offender had to present proof to show that he met the criteria for transfer. Commonwealth v Leatherbury, 390 Pa.Super. 558, 568 A.2d 1313 (1990); see also H.W. v. State, 759 P.2d 214 (Okla.Crim.App.1988) (statute held constitutional which shifted burden of proof to juvenile to justify transfer).

Our conclusion that appellant had the burden of offering proof and persuading the trial court on his motion is not inconsistent with the statutory mandate that a trial court reject a transfer to juvenile court only upon a...