*1 home, environment, the circuit Appellant argues emotional atti- also nile’s tude, to be living, denying request desire court erred in to ex- pattern Appellant an adult. asserts juvenile jurisdiction. treated as tend Arkansas Code 27—318(i) finding sophisticated that he was that the provides Annotated section 9— evidence, by convincing supported that, was not finding by the criminal upon divi- testimony of his mother to the pointing juvenile sion of a circuit court that a Faupel. Dr. Ron psychologist and forensic juvenile should be transferred to the divi- order, the circuit court acknowl- In its sion, may criminal enter an division has a “borderline edged Appellant an juvenile order to transfer as extended function,” intellectual but found that he Here, jurisdiction case. the circuit court age was mature for his because he had Appellant found that should not be trans- incident, night been out the before Therefore, juvenile ferred to the division. regarding whether he made decisions juvenile jurisdiction appli- extended is not prescribed would take medication cable in this situation. him, drug acknowledged extensive sum, light present- of the evidence The circuit court obvious- and alcohol use. hearing, Appellant ed at the has met ly greater weight Appellant’s afforded proving his burden of that the circuit court than to the own statement clearly denying erroneous the mo- Dr. Faupel. mother and Cred- Appellant’s juvenile tion to transfer his case court. ibility of witnesses is an issue for the that there is clear convincing We hold R.M.W., supra. finder of fact. See On evidence to the circuit rul- support court’s we have no wit- appeal, means assess ing. Accordingly, we affirm. credibility may not act as the ness finder of fact. Id. Affirmed. factor concerns whether
The seventh programs are facilities or available
there judge juvenile of the division that likely juvenile prior to rehabilitate the
are expiration juvenile of the division’s
jurisdiction. The circuit court found that avail- programs
there were facilities and likely able to would rehabili- JACKSON, Appellant, Darius |^Appellant Appellant. tate seems to as- finding, sert based Arkansas, Appellee. STATE clear finding convincing court erred try Appellant evidence to an adult. No. CR 08-459. However, we have held that Supreme Court of Arkansas. required give equal weight court is not Otis, statutory to each factors. See June 2009. such, supra. weight As it is clear that the Rehearing Sept. Denied 2009. statutory to be afforded to each factor is within the discretion of the trial court. Id. say cannot that the circuit or-
We court’s denying the motion to was not
der transfer
supported by convincing clear and evi- solely finding
dence because of its on this
one factor. *2 at the living television room
watched front home. At point, some picked both of the and walked girls *3 the Jack- toward the back of house. When room, the Doo- living son returned to Ms. ley eyes were noticed having “bugged out” and that was she Dooley breathing. Ms. trouble When Nike- wrong asked Jackson what was with ya, wrong, was nothing Jackson stated just “faking.” she was guest Ms. Dooley Nikeya took to lay room to her down on the bed. She thought Nikeya might hungry, so she to ramen went to the kitchen fix some PLLC, Davis, Firm, L. Jr. Law Ronald times, She checked on her a few noodles. Davis, Jr., Rock, Little by: Ronald L. for Nikeya ready, but the noodles appellant. guest was in the Ms. longer no bedroom. Gen., McDaniel, Att’y by: Debo- Dustin Dooley Nikeya lying found motionless Gen., Gore, Att’y ap- for rah Nolan Ass’t eyes living couch in the room with her pellee. for gasping rolled back in her head and to unsuccessfully attempting air. After DANIELSON, E. PAUL Justice. uncle, doctor, call she her and a nurse | TAppellant appeals Darius Jackson with, Dooley How- worked Ms. called 911. judgment and commitment order ever, operator she was instructed him County finding Pulaski Circuit Court give could talk phone someone who capital sentencing and guilty of murder hysterical because she was and could life imprisonment possi- him to without the be understood. appeal, ar- bility parole. On Jackson Sergeant Ameling the Pula- Chris with (1) that: evidence was insufficient gues first to County ski Sheriffs Office was the support capital his conviction mur- respond. Jackson met him at the door. (2) der; failing court erred in the EMT escorted Ameling and team were an grant expert a continuance after wit- Nikeya to the room. guest Ameling saw allegedly changed testimony; ness bed, lying her on the middle with (3) an allowing the circuit court erred |sand eyes hands her side rolled her interference with deliberations. We back in He Nike- her head. could see that affirm Jackson’s conviction sentence. ya having breathing. trouble was While following The record reveals the facts. Nikeya, working EMT team was Miles, April Nikeya the then- On Jackson Ameling happened. asked what Doo- two-year-old daughter Shakenya told him Ameling testified Jackson ley, spent night along with her mother Nikeya they had taken nap, |2home Jackson, Dooley’s at the Ms. scream, they heard a went that when Littles, boyfriend, Magnolia Jackson’s wrong, to the to see bedroom what then-one-year-old mother. they her in her condition. Princess, found current daughter, was also there. The Nikeya everyone accompany Before left morning, Magnolia next Littles left Ameling Jack- go shopping hospital, house to while the others asked both Dooley phone. for their identification. Jackson claimed that when son and Ms. he Dooley cooperated, Ms. Dooley got While saw that Ms. off of the phone, Ameling, you do need that asked “What picked girls both to take them back for?” in the Dooley. room Ms. carrying described Princess on his left at Arkansas long arriving
Not after side, him, facing with her chest and carry- Hospital, family and law-en- Children’s ing Nikeya right in his arm facing away officers were informed that forcement Barnes, Jackson, from him. Nikeya According had died. James an inves- as he tigator County with the Pulaski Sheriffs walking girls, with the he tripped over *4 Office, took Jackson to the house fell, back a basket of clothes and dropping they hospital. after left He asked falling directly Princess and on top of statement, give Jackson if he would a and Nikeya. Nikeya Jackson stated that sim- agreed. Jackson Barnes drove Jackson to him, ply turned picked and looked at so he office took his af- his and statement girls back up and took them to the ternoon, April 2006. In the statement living room. It was at that point, Jackson Barnes, given to that he stated claimed, Nikeya’s eyes were “bucked” and day Nikeya’s “eyes got noticed that her, Dooley grabbed eventually Ms. taking ... lip bucked” and that “her was so lay guest her to down in the bedroom and chapped” thought maybe that he she was fixing her noodles. dehydrated. explained He she had Peretti, Dr. Frank a pathologist forensic her playing been Easter basket and and the medical director at the Arkansas came into the room he when he back found Lab, State Crime that Nike- determined eyes her on the couch with her rolled back ya’s multiple cause of death was from stated, point, in her head. At that (¡injuries blunt-force and ruled her death a [ mother, grabbed Nikeya, yelled he for her Nikeya homicide. multiple bruises on water, give tried to her some and then laid under scalp. and her Her chest was the guest her on bed. Barnes testified bruised the autopsy and revealed that her during that Jackson was nonchalant right lung severely was bruised and had gave time he his statement. detached from her completely been wind- 15, 2006, April April and 14Between pipe, causing her to bleed into her right 2006, Sergeant Mike Blain with the Pula- cavity. chest The blood her chest ex- County ski Sheriffs Office received the up right tended into her neck via the caro- findings Nikeya’s autopsy initial from sheath, tid the soft surrounding tissue her office began medical examiner’s right artery. carotid In addition to Nike- investigation injuries criminal based on ya’s injuries, head and chest there were Nikeya part had sustained. As of his injuries throughout also her abdomen. investigation, criminal Blain interviewed Nikeya from a suffered lacerated and ex- Littles, Dooley, Ms. Ms. and Jackson. liver, tensively torn lacerated and Blain testified that he had Jack- reviewed pancreas, multiple bruised contusions previous son’s statement and then in- hemorrhages throughout her abdo- injuries formed Jackson about the internal men. Nikeya found the medical examiner. Blain testified that he then received a dif- opinion, Nikeya In Dr. Peretti’s died ferent statement from Jackson. because she could not breathe and from the amount of internal He Blain, bleeding. also
In Jackson’s statement Nikeya concluded that had suffered some Nikeya claimed and Princess were in playing Dooley his room while of compressional asphyxia Ms. sort because of required much force is to detach a guilt how defendant’s and inconsistent with vessels, lung windpipe from the and blood any other reasonable conclusion. See id. Nikeya’s as was. Dr. Peretti stated that every Whether evidence excludes other supported by conclusion was further hypothesis is left to the to decide. going the fact that blood was found into id. credibility See an witnesses is Nikeya’s neck from through her chest issue for the and not the court. See sheath, right carotid as the blood would id. The trier of fact is free to believe all have been forced to travel the sheath if or part any may witness’s pressure applied abdomen questions resolve of conflicting testimony organs such a manner that it caused to and inconsistent evidence. See id. rupture, burst or did. person A commits capital murder if: explained injuries Peretti that such could very have been the result of a forcible manifesting Under circumstances ex- squeeze being forcibly applied a foot treme indifference value of human to the abdomen. He did not believe the life, person knowingly causes the *5 injuries could have been sustained (14) death of a person years fourteen falling top Nikeya someone |7age younger or at the time the murder behind there because were not more dif- if committed the defendant was injuries. fuse Nikeya Had fallen face (18) eighteen years age or older at the |fiPeretti down, concluded, Dr. it would not time the murder was committed. explain multiple injuries to the back of 5-10-101(a)(9)(A) § Ark.Code Ann. (Repl. her head. 2006). juryA convicted capital Jackson of mur- death, der for appeal and this sufficiency argument, For his Jack argues followed. Jackson first that there argues son first that Dr. Peretti’s testimo support was not sufficient evidence to ny was not to a certain degree of medical charge capital murder. The State avers certainty because was inconsistent supports that substantial evidence the con- Nikeya about likely when had most sus viction. injuries. tained certain old internal How ever, sufficiency argument
Our standard of review for a appropriately is more challenge is In reviewing well settled. a developed as Jackson’s point second challenge to the sufficiency of the evi- appeal. In viewing the evidence in the dence, view light we the evidence in a most light State, most favorable to the the evi only favorable to the State and consider dence regarding possible time frame of supports evidence that the verdict. injuries old by Nikeya sustained is irrele 166, See Cluck v. 365 Ark. 226 vant. Dr. Peretti testified that while there affirm S.W.3d We a conviction injuries Nikeya’s were some old pancre if support substantial evidence exists to it. liver, they as and were not related to what id. See Substantial evidence is that which April caused her death on 2006. is of sufficient force and character that it Peretti all inju testified of the acute will, with certainty, compel reasonable a by Nikeya, ries suffered such as the contu way other, one conclusion or the without head, sions found on the back of her her resorting speculation conjecture. or See liver, detached lung, her lacerated and the id. abdomen, massive bleeding throughout her Furthermore, injuries concluded those would circumstantial evi may provide only dence have occurred support basis minutes before her conviction, but it must be consistent with death. him undisputed injuries
It is that Jackson was of the internal suffered by mother, with Ms. person Nikeya last before Nikeya. seen While Ms. Lit- Dooley eyes bugged that her tles, noticed picked up claimed she had out, Peretti as an which Dr. described house and moved a clothes basket after asphyxia. An es- compressional effect of been Nikeya hospital, taken to the State prove sential element the had to observe, law-enforcement officials did not “knowingly.” acted See id. any pictures nor did of the taken in the person knowingly A to: respect acts reveal, any home a clothes part basket
(A)
at-
person’s
conduct or the
|3bedroom,
hallway
of the
or
as described
she is
tendant circumstances
he or
addition,
Investigator
Jackson.
aware
or her
of that
that his
conduct is
testified that
Littles
Barnes
Ms.
had told
nature or that
attendant circum- him that she had not
anything.
moved
We
exist;
stances
credibility
have
held that
long
issues of
are
|8(B)
person’s
A
result
conduct
to the jury
be left
and that the trier of
prac-
when he or she is aware that it is
fact
part
any
is free
believe all or
tically certain
his or her conduct
testimony
may
ques
witness’s
resolve
result;
will cause the
conflicting
tions of
inconsis
§
(Repl.2006).
Ark.Code Ann.
5-2-202
tent evidence. See
Wallace
recognized
requi-
This court has
that the
jury and of alone. See Anderson relationship light of State, 180, v. 357 Ark. 163 333 S.W.3d death, phone he took her (2004). Sergeant Jackson had told Amel Nikeya, the photos deleted all while ing nap woke a Nikeya leaving photos her other place. screaming they in the found her in the reviewing light After the evidence Ameling condition that she was in when State, say we cannot most favorable Testimony arrived. revealed that Jackson sup- did that the evidence was give explanation he had insufficient and, therefore, tripped port over a on Jackson’s conviction clothes basket and fallen Nikeya Sergeant until after Blain informed we affirm it.
266 appeal, hearing on and deter- point pretrial his second the motion
For denied, circuit court erred argues that the mined that motion would denying continuance motion for changed if Dr. truly but that Peretti had hnhis expert an his contention that based on regarding then opinion, his the evidence witness, Peretti, medi changed his timing injuries of the would not be old that the cir The State avers opinion. cal allowed. did not abuse its discretion in cuit court in Dr. Peretti’s The record reveals that prej and that no denying Jackson’s motion two sets original report, found distinct from the denial.
udice resulted injuries Nikeya. had discovered He A motion for continuance is left pattern injury Nikeya’s pancreas a discretion of to the sound old, days and liver that were but reversed on judgment its will not be process healing. Addi- beginning in the absence of a clear abuse of appeal tionally, Dr. all Peretti discovered v. that discretion. See Stenhouse injuries actually Nike- acute caused (2005). Ark. 209 362 S.W.3d 352 death, which, opined, she ya’s Dr. Peretti establishing burden an abuse minutes her death. At sustained before squarely court’s discretion falls report, the time of his Dr. Peretti conclud- id. appellant. the shoulders See likely oc- injuries ed that old most appellant only An must not demonstrate ten days curred seven to before her death. the circuit court abused its discretion pretrial At a Dr. Peretti was meeting, continuance, by denying the motion for a hap- injuries asked if those old could have show prejudice but also must that amounts early as before her pened days three justice. Cherry to a denial See rather than to ten. He an- death seven S.W.3d swered that it was but continued possible, that a provide Our criminal rules upon expe- in court to state that based “only upon grant shall continuance rience, days ten he believed it was seven to *7 good long for showing only of cause and so prior. necessary, only into account not taking testimony of Jack- The Dr. Peretti that request prosecuting or the the consent of inconsistent specifically being son cites as counsel, attorney or defense but also the Peretti, during was elicited voir dire of Dr. in of public prompt disposition interest the and, presence jury, the the outside of Ark. R.Crim. P. 27.3 case.” therefore, not part was of the evidence In the instant Jackson filed his by jury determining the in considered 8, 2007, motion to continue the on October guilt. Additionally, Jackson’s scheduled, trial day alleging before his was party responsible counsel was the for elic- Dr. Peretti changed that had his medical testimony timing iting regarding the the opinion concluding that certain old |12of injuries presented the old that was au- injuries during Nikeya’s internal found jury. testimony, front of the Dr. In that topsy days were least to ten old to seven Peretti admitted that since the time of his indicating that they may have occurred if report first had asked the old been days within three her death. two injuries could have as recent as been argued that this did not change opinion days prior Nikeya’s death and or three October, Friday, | u5, occur until How- possible. that he had stated it was Monday, was not disclosed to him until ever, in front of the 8, 2007, Dr. Peretti maintained give October not him which did that, differently while heals jury everyone sufficient time to make beneficial use of certain, the held not based on say evidence. circuit court and he could for The tion, injuries those the opinion experience circuit court allowed the his court days ten prior occurred seven to to reporter had to replay taped testimony the Nikeya’s explained death. Dr. Peretti that Dr. Peretti for It jury. the was necessary the importance report he knew his and to have the reporter present court because gave originally opinion, that when he the recording the Dr. Peretti’s testimony it interpreted he meant to be that the old accomplished by a “WAV” file on the occurred a minimum of seven injuries reporter’s court computer. jury days prior to death. ten brought into the courtroom and instructed they that or above, speak not to say Based we cannot otherwise its communicate by during replaying court abused discretion finding good grant cause to the motion testimony, other than foreman Additionally, continuance. Jackson did permitted who was tell the report- court prejudice amounting not establish that to a adjust er when to the volume stop, or to justice denial had occurred the cir- rewind, play testimony. or The court court’s cuit denial. Dr. Peretti never reporter was sworn and the courtroom was opinion changed claimed his true everyone except cleared of the court re- that he injuries now believed old porter jurors. and the The court reporter actually only days occurred two three played testimony of Dr. Peretti for the prior Nikeya’s death. Peretti main- and, after the was replayed, opinion experi- tained his based jurors the jury returned to room. injuries ence was that the old were seven § Code Annotated 16-89- _LyArkansas days ten old. there was Because not an 125(e) provides: abuse discretion and Jackson did not deliberation, After the retires for if prejudiced by demonstrate that he was there is a disagreement between them motion, of his affirm denial we the circuit any as to part of the evidence or if they court’s denial of his motion. have a desire to informed on point be argument, For his final law, they require the must officer to court contends violated Ar conduct court. Upon them into their § kansas Annotated 16-89-125 11sCode being brought into the informa- (Repl.2005)1 allowing report required given tion pres- must the jury er into room. The State avers ence of or after notice the counsel of circuit court not violate did section the parties. *8 16-89-125 because danger there no This court that the purpose has held jury any that the received evidence that 16-89-125(e) protect section is to against not been previously had admitted in trial any being further taken with steps respect and, therefore, there were no “further open to evidence in unless done court with taken with to steps” respect the evidence. State, present. counsel See Anderson v. During jury in deliberations the instant (2006). 536, Ark. 242 229 367 S.W.3d jury requested the to hear the two Jackson states specifically that he is not audio-taped statements of and to alleging replay that the information should not hear of some of the testimony trial. have been the during The circuit allowed offered to their court Jack- go son’s recorded all been statements back with deliberations as it had admitted Further, However, jury. the over objec- into evidence at trial. Although graphical 1. cites Jackson's brief to Ark.Code error the relevant statute is sec- as 15-89-125, § appears typo- Ann. it to be a tion 16-89-125.
268 during by presence trial or the mere that because the evidence was dence
contends
Therefore,
in
the
by
presence
reporter.
the
the
the court
we af-
reviewed
reporter,
possibility
there was a
firm
point
on this
as well.
and there was not
tainting
prejudice
reasons,
affirm
For all of the above
we
compliance with section 16-89-
strict
Pursu-
Jackson’s conviction and sentence.
125(e).
Rule 4-
Supreme
ant to Arkansas
Court
are similar to
The facts
this case
3(i) (2009), the record has been examined
Anderson,
presented
those
to this court
motions,
objections,
requests
for all
Anderson,
deliberating jury
In
the
supra.
that were
party
made
either
decided
replay
allowed to
an out-of-court
adversely
appellant,
prejudi-
and no
that had been admitted into evi-
statement
cial error has been found.
during
and made an exhibit
dence
Affirmed.
that the replaying
trial. This court held
that
been ad-
previously
of evidence
IMBER, JJ., concurring.
CORBIN and
during
stage
trial was not a critical
mitted
HANNAH, C.J., dissenting.
proceedings
nothing
in criminal
had suffered
appellant
indicated
IMBER,
ANNABELLE CLINTON
replaying
any prejudice
Justice, concurring.
Anderson,
supra;
see also
tapes. See
11(J
with the
agree
majority
this
State,
218,
Ark.
Davlin v.
313
853 S.W.2d
case must be affirmed
accordance with
(1993) (where this court held the cir-
882
precedent
set forth in Anderson v.
err
allowing
cuit court did
536,
242
367
S.W.3d 229
| ^deliberating jury
play
videotape
However,
separately
I write
address
that contained information which was nei-
troubling practice
permitting the court
played
ther admitted into evidence nor
reporter
re-present evidence
the record was silent as to
trial because
defendant,
jury while neither the
actually happened during
play-
what
parties’
present
nor the
counsel are
in the
back).
cites
court to
While Jackson
courtroom.
Olano,
725,
United States
U.S.
In
1770,
(1993),
interpreting Arkansas Code Annotat-
sup-
269 of or the part reporter the the court dence in the outcome the For trial. jurors, reasons, Jackson and his counsel would not these I concur. preju-
have the
benefit
a record to show
J.,
CORBIN,
joins this concurrence.
essence,
In
jury
dicial error.
the
could
have
in
continued its deliberations
the
HANNAH,
Justice,
JIM
Chief
presence
reporter,
of the court
or even dissenting.
participate
allowed the court
in
reporter
respectfully dissent.
This case
Iisl
deliberations,
its
and neither Jackson nor
should be reversed and remanded because
the court would have known.
the circuit court erred in ordering the
Moreover, a
reporter
court
who is re-
reporter
court
to play
reporter’s
the
back-
may
evidence
the
presenting
jury
for
tape
audio
simultaneously
unable
a
create
record
117to
Peretti for the jury when the
judge,
of the re-presentation. We have stated
defendant,
parties’
the
and the
counsel
that the State cannot meet its burden of
were not
in
present
the courtroom. Con-
rebutting
presumption
of prejudice
trary to the suggestions of the majority
when
is
there
no
of what
record
occurred
concurrence,
and the
this case is distin-
during
re-presentation
of the evidence.
guishable
State,
from Anderson v.
367 Ark.
State,
221-22,
218,
Davlin v.
313 Ark.
536,
(2006);
evidence, part made and was not App.
record, making impossible for this court it INC., DEVICES, Appellant, SEALING to review.1 distinguishes further the instant What McKINNEY and Industrial James that, Anderson, from is case Anderson Solutions, Inc., Fluid jury during party joined outside no Appellees. reporter’s pres- The court deliberations. No. CA 08-1264. ence, presence outside defendant, court, parties’ coun- Arkansas. Appeals Court sel, its face. Section 16- prejudicial is 89-125(e) May procedure by 2009. sets forth the proceed must which a or disagreement has a desires specifi- of law. It point informed
be be conducted
cally requires that time, and at that informa-
into required given pres- must be
tion of, to, after That is notice counsel.
ence procedure to be followed.
the sole took way in no authorizes what
statute distinguishes in this and what
place Anderson, is the court
this case was left alone with the
reporter back-up tape audio
play a Noncompliance
admitted trial. 16-89-125(e) gives pre- rise to a
section prejudice, which State has
sumption overcoming, and the State
the burden way in no done so in instant case.
has procedure this case
Because the used statutorily
clearly violates the mandated due-pro-
procedure because rights under the States Con-
cess United
stitution Arkansas Constitution
violated, this case should reversed
remanded. 16-89-125(e). § objection was no made that the back Arkansas Code Annotated
1. There pursuant tape up audio was not evidence