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Harris v. State

Court of Appeals of Arkansas, Division III

May 25, 2016



          Willard Proctor, Jr., P.A., by: Willard Proctor, Jr., for appellant.

          Leslie Rutledge, Att'y Gen., by: Valerie Glover Fortner, Ass't Att'y Gen., for appellee.


         Appellant Robert Harris appeals from the trial court's denial of his motion to transfer his case to the juvenile division of circuit court. He argues that the trial court's findings regarding Arkansas Code Annotated sections 9-27-318(g)(1), (5), and (7) were clearly erroneous. We find no error and affirm.[1]

         On September 9, 2014, appellant was charged by information with capital murder and aggravated robbery. He filed a motion to transfer his case to the juvenile division of circuit court on September 12, 2014. A hearing on appellant's motion took place on January 9, 2015.

         At the hearing, Detective Clint O'Kelly of the North Little Rock Police Department testified that he investigated the homicide of Mike Cook on July 20, 2014. He stated that Cook was found lying in the road, suffering from gunshot wounds. He said that Cook was transported to UAMS, where he was pronounced dead. Detective O'Kelly stated that officers located a witness, Lewis Brown, who informed them that he had seen two black males running on Campbell Street behind a truck and that one of them had a gun. Another witness, Brandon Bland, told officers that he had been with appellant and Jonathan Turner drinking and listening to music when Cook walked up and joined them. According to Bland, appellant was showing off his gun when Cook made a comment that appellant "took offense to." Detective O'Kelly stated that Bland informed him that after Cook unsuccessfully attempted to find a ride home, he began to walk. Bland stated that he went inside his house and that he later heard gunshots.

         Detective O'Kelly testified that two other witnesses came forward stating that appellant had a gun on the date in question. According to Detective O'Kelly, Turner stated that appellant handed Cook his gun and that Cook acted as if he was going to keep it, but he finally gave it back to appellant. Turner initially stated that he was not present at the time Cook was shot; however, once confronted, he admitted that he was with appellant when appellant shot Cook. Turner stated that appellant indicated that he was going to take Cook's gun away from him and that appellant then pulled his gun on Cook, made Cook empty his pockets, and then shot him. Turner indicated that he and appellant took off running and that appellant stopped, turned around, and fired more shots at Cook. Turner also told officers that a Ford truck pulled out on Campbell Street in front of them. Detective O'Kelly stated that officers located appellant and showed him a picture of Cook. According to Detective O'Kelly, appellant denied ever seeing Cook before. However, after speaking briefly with his father, appellant indicated that Turner was the one that shot Cook. Detective O'Kelly stated that at least three people saw appellant with a .40 caliber firearm, which had fourteen rounds in the clip and one in the chamber. He testified that two shell casings were found at the intersection of Campbell and Whippoorwill, and that eight casings were about 100 feet west of the intersection. Another casing was found in the tire of a vehicle belonging to the first witness located. According to Detective O'Kelly, all eleven casings were .40 caliber. Detective O'Kelly stated that another witness, Antonio Tillman, stated that he heard a set of gunshots, looked out of his window, saw the victim running and maybe limping, and then heard more shots. Detective O'Kelly testified that Cook was shot three times: once in the upper left back, once in the back right upper arm, and once in the left leg. He stated that it was safe to say that Cook died from the gunshot wound to the back.

         On cross-examination, Detective O'Kelly stated that Turner was present at the time of the shooting. He testified that Turner initially lied to him. He also stated that Turner had charges pending for aggravated robbery unrelated to the incident in question. Detective O'Kelly said that outside of the case appellant was facing in juvenile court, he did not know of any other charges against appellant.

         On redirect, Detective O'Kelly stated that appellant's date of birth is July 26, 1996, and that Cook was shot and killed six days before appellant's eighteenth birthday.

         Scott Tanner testified on behalf of the defense at the transfer hearing. He stated that he coordinates the juvenile-ombudsmen division for the Public Defender Commission. Tanner stated that if appellant was committed to the Department of Youth Services (DYS), there would be resources available to help appellant complete high school or to obtain a GED, and that individual and group mental-health services and other therapies were also available. He said that the DYS facility was equipped to handle a defendant who was already eighteen and that for extended-juvenile-jurisdiction (EJJ) cases, they could maintain youths until their twenty-first birthdays. Tanner testified that it was his understanding that if the case was transferred and designated as EJJ, the juvenile court would retain jurisdiction until the defendant's twenty-first birthday. According to Tanner, the court would have to make a decision before a defendant turns twenty-one whether or not to maintain the defendant on probation and aftercare or to send him to adult probation or sentence him to the Arkansas Department of Correction. Tanner also stated that science has indicated that "the brain continues to develop until the age of twenty-five, particularly the prefrontal lobe, which provides the ability to guide impulse control and understanding long-term consequences." He testified that "[t]here is absolutely no debate that impulsivity, the delay gratification, and all those sort of things are not developed until you're twenty-five."

         On cross-examination, Tanner stated that many of the programs in juvenile court used to rehabilitate juveniles do not take individuals once they turn eighteen. He said that is why the court would commit the juvenile to DYS. He testified that if the juvenile has already reached the age of nineteen by adjudication, he would only have approximately one-and-a-half years to be able to rehabilitate and also have a review hearing before the juvenile's twenty-first birthday. Tanner stated that the "earlier you can reach a juvenile and start performing these programs . . . the much greater likelihood that the juvenile will be rehabilitated. The older that they are when they start getting the programs, the chance of rehabilitation are not as great as if you get somebody that's 14, 15, or even younger." He said that he had no opinion as to the likelihood of rehabilitation of appellant.

         On redirect, Tanner stated that the most likely scenario would be to place appellant in DYS "just to err on the side of caution." He testified that although resources would be limited to someone over the age of eighteen, there were still resources available.

         Appellant's mother, Ebony Harris, testified that appellant had been in trouble only once at school prior to the charges he now faced. She said that appellant resided at home with her, his father, and his younger siblings. She stated that prior to his arrest, appellant worked with the after-school program at the Boys' and Girls' Club. According to Ebony, appellant never exhibited any behavior that would indicate that he was violent. She also testified that appellant never indicated that he wanted to be treated as an adult and that she still disciplined him when necessary.

         Appellant's father, Robert Harris, III, testified that appellant did not have the financial capability to be on his own. He stated that, mentally, appellant was a "strong-minded young man." He said that appellant had never indicated that he wanted to be treated like an adult.

         The court admitted the transcript from appellant's prior juvenile hearing involving an incident that took place at Sylvan Hills High School on January 28, 2014. At that hearing, Sergeant Jason Hopkins of the Sherwood Police Department testified that he was working security at a basketball game when a parent notified him about a fight taking place in front of the arena. He stated that as he exited the arena, he saw appellant and another individual on top of someone hitting him. He said that he identified himself as a police officer and grabbed appellant, but that appellant continued to go back toward the person he had been hitting. Sergeant Hopkins stated that he eventually had to handcuff appellant. According to Sergeant Hopkins, appellant subsequently stated "that he was BD[2] and he would bring a gun back and shoot all of the people there." He said that appellant made this statement more than once. He stated that as a result, appellant was banned from Sylvan Hills' property. Sergeant Hopkins said that appellant did not violate the ban. Tracy Allen, the principal at Sylvan Hills, reiterated Sergeant Hopkins's testimony concerning the threat made by appellant. According to Allen, appellant stated, "On BD. I'll get my gun and ...

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