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McClendon v. State

Court of Appeals of Arkansas, Division IV

February 20, 2019

ANDRIS MCCLENDON APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, FIRST DIVISION [NO. 60CR-17-1570] HONORABLE LEON N. JOHNSON, JUDGE

          William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.

          Leslie Rutledge, Att'y Gen., by: Jason Michael Johnson, Ass't Att'y Gen., for appellee.

          DAVID M. GLOVER, Judge

         In May 2017, Andris McClendon was charged in the Pulaski County Circuit Court with one count of battery in the first degree by means of a firearm. In July 2017, he filed a motion to transfer his case to the juvenile division. After a hearing, the circuit court denied the motion to transfer. McClendon appeals the denial of his motion, arguing the circuit court failed to comply with the requirements in Arkansas Code Annotated section 9-27-318(h)(1) (Repl. 2015) to make written findings of fact on each of the ten factors set forth in Arkansas Code Annotated section 9-27-318(g), and the order denying his motion to transfer should be remanded for the circuit court to comply with section 9-27-318(h)(1). We remand to the circuit court for further findings.

          Detective Roy Williams of the Little Rock Police Department was the State's only witness at the transfer hearing. He testified that on April 9, 2017, he responded to a report of a double shooting at approximately 11:00 a.m. in the area of 27th and Washington. According to Williams, two people had suffered gunshot wounds, but neither were at the scene when he arrived; although most witnesses only heard the gunshots, one individual stated he had seen two black males (one with a small afro and the other with dreadlocks) run to a light blue Toyota Camry, drive away, hit another vehicle, and then abandon the vehicle. Williams also spoke to an individual on 29th Street who advised he had seen three black males together (one with dreadlocks), and one of the males had placed some guns in his barbeque grill; two firearms were located in the grill. McClendon was located by patrol officers at a church in the 4300 block of West 29th, where he had told people inside he had been shot.

         Detective Williams interviewed Jaylen Hussian, one of the persons who had been shot, at Arkansas Children's Hospital (Children's), at which time Hussian informed him the person who shot him was also at Children's and was named Andris. When asked why he thought appellant had shot him, Hussian said he had gone to school with appellant in the past. He said he saw McClendon and one of McClendon's friends (who had dreadlocks) sitting on the porch of a residence, and they had begun shooting at him.

         Detective Williams initially encountered McClendon at Children's. McClendon waived his rights and spoke to Williams, claiming the shooting was in self-defense. McClendon told Williams he had been in the area with his friend Little Greg; they were sitting on the front porch of a residence; they heard gunshots, looked up, and saw Jaylen Hussian; they assumed Hussian was shooting at them; Little Greg began shooting toward Hussian, and he began to shoot, too; they ran to the Camry; as they were trying to get into the vehicle, he was shot in the foot; they ran the vehicle into a parked car and then got out and ran off; he had a revolver with him but dropped it. McClendon said he did not see Hussian with a gun, but he just assumed Hussian was shooting because he was the only one in the area when they heard the shots. Williams did not allege McClendon had fired all the shots in the altercation; he also stated there appeared to be bullet holes in the Camry, but he noted that the vehicle was stolen, and the bullet holes were not necessarily from the shooting at issue. However, the shell casings found at the scene matched the .45 caliber and 10mm Glock firearms recovered from the grill. Williams testified McClendon was affiliated with the gang Murder Mob, which is affiliated with Highland Park Piru and was in the area where the shooting occurred; however, he also stated there were no incident reports connecting McClendon directly to either gang.

         Scott Tanner, the coordinator of the Juvenile Ombudsmen Division of the Public Defender Commission, testified for the defense, detailing the various programs available to McClendon if his case were transferred to juvenile court, including the possibility of extended juvenile jurisdiction (EJJ). Tanner also explained if McClendon's case was transferred to juvenile court, he would be assessed to determine the programs that would best fit his needs. He also explained that if a juvenile is committed to the Division of Youth Services (DYS), the juvenile is locked down and not free to leave the residential setting; however, in a group-home setting, there is no lock down.

         Adriana Brown, McClendon's mother, testified that McClendon is the baby of the family; he is childish, silly, and outgoing, but very respectful; he does not have a father figure and wants to take care of his mother; he is intelligent and attends school at the Hamilton Learning Academy; he was working several jobs to pay for his ankle monitoring because Brown could not afford to pay for it; he had completed the Christian Angels Support program; and he suffers from depression. The defense presented letters from McClendon's teacher, assistant principal, and social worker at Hamilton Learning Academy, stating he had a respectful and positive attitude, was eager to help, and was a model student, as well as a certificate noting he was a nominee for intern of the year in the Little Rock Department of Community Programs 2017 Summer Youth Employment Opportunity.

Arkansas Code Annotated section 9-27-318(g) provides:
(g) In the transfer hearing, the court shall consider all of the following factors:
(1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal ...

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