Walker v. State

David Newbern, Justice, dissenting. Two of the court’s conclusions trouble me. I question whether the general assembly intended that the burden of proof be on the juvenile as the moving party and whether the “clear and convincing evidence” required to retain the case in circuit court can be achieved when the state offers nothing other than the charge.

1. The burden of proof

The majority opinion is correct in asserting that Act 273 of 1989 draws upon prior statutes, Ark. Stat. Ann. § 41-617 (Supp. 1985) and Ark. Stat. Ann. § 45-420 (Supp. 1985). The change, however, is a little more significant than that suggested by the majority.

Section 45-420 set out the criteria for transfer of cases from juvenile to circuit court proceedings and vice versa. The criteria are the same as those contained in Act 273. Subsection (f) of Act 273, however, is an entirely new provision. It is as follows: “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.” Unlike the old law, the decision to be reached is not whether there is to be a “transfer to another court having jurisdiction,” § 45-420; the decision to be reached is whether there is “clear and convincing evidence that a juvenile should be tried as an adult.” The reference to “clear and convincing evidence” is thus not the only new aspect of the law. After the prosecutor has exercised his discretion to charge the juvenile in the circuit court, the court must decide “by clear and convincing evidence that a juvenile should be tried as an adult.” (Emphasis supplied.)

The new statutory language suggests the burden is on the state. If the juvenile has moved to transfer the case to juvenile court, only one party will be offering evidence “that a juvenile should be tried as an adult,” and that is the state.

The court in Commonwealth v. Leatherbury, 568 A.2d 1313 (Pa. Super 1990), was not free to decide the burden of proof issue because a Pennsylvania statute, 42 Pa.C.S.A. § 6322(a) specifically provided in relevant part:

“In determining whether to transfer a case charging murder, the court shall apply the criteria in section 6355(a) (4)(iii)(A) (relating to transfer to criminal proceedings) . However, the child shall be required to show the court that the child is amenable to treatment, supervision or rehabilitation as a juvenile by meeting the criteria listed in section 6355(a)(4)(iii)(A)

The case was one in which murder was charged, and thus the burden of proof was clearly established by the statute. The case thus presents no useful authority in a jurisdiction like Arkansas where there is no such provision.

The same is true of H.W. v. State, 759 P.2d 214 (Okl.Cr. 1988). There, the juvenile was charged as an adult with three counts of murder, and she sought certification as a child in accordance with 10 O.S.Supp.1986, § 1104.2. Subsection A. of that section of the Oklahoma Statutes provides that a person 16 or 17 years old charged with murder “shall be considered as an adult.” The juvenile then may, under subsection C. of that section of the statute move for certification as a child. Thus, it is clear that the decision the Oklahoma judge must make is the mirror image of that of a judge under our statute. The Oklahoma judge must decide that the juvenile should be tried as a juvenile, rather than that the juvenile will be tried as an adult.

2. The state’s evidence

If the court can rely on nothing but the charge and decide that a juvenile is to be tried as an adult in any case in which a serious offense is alleged, then there is no need for the other criteria. If the Arkansas General Assembly had intended that the court have the power to try a juvenile as an adult anytime a serious offense involving violence was alleged, it would have said so. Instead, it set out the three criteria quoted in the majority opinion. By creating the “clear and convincing evidence” standard as the basis for finding that a juvenile should be tried as an adult, the Arkansas General Assembly must have contemplated evidence in excess of the charge. While it is true that the charge is “evidence,” I cannot elevate it to “clear and convincing evidence.”

805 S.W.2d 80 Except for the charge or information, all of the evidence in this case with respect to the statutory criteria was on the other side.

Because this is our first opportunity to consider this issue, I would not simply reverse and remand this case for trial in the juvenile court. I would remand it to the trial court for rehearing in order to permit the state an opportunity to present “clear and convincing evidence that a juvenile should be tried as an adult.”

I respectfully dissent.

Dudley and Corbin, JJ., join in this dissent.