No end yet in juvenile hearing
Published 12:00 am Thursday, December 2, 2004
WINDSOR – As Bertie County continues to mourn the loss of a 3-year old, it now finds itself in a position to figure out what to do with the 9-year old who has been convicted of involuntary manslaughter.
Family members and friends of the deceased stayed on one side while family and friends of the defendant sat on the other side of the Bertie County Superior Courtroom Tuesday as the court began trying to decide how to take this next step in the disposition hearing.
The 9-year old, who will remain anonymous at the request of the Judicial District-6B prosecution staff, sat silently at the defendant’s table – occasionally laying his head on his arm in typical 9-year old fashion – as his future was discussed by lawyers, judges and a variety of experts during the proceedings.
In an earlier hearing, also open to the public due to the high profile of the case, the juvenile was found guilty and responsible for the Sept. 3 death of 3-year-old Malik McKinley Beverly, son of LaToya Harrell of Ahoskie.
According to testimony that came from an autopsy report, the 3-year old had been dragged across cement, bruised to the head and was still alive when put in a septic tank in the mobile home park known as Sander’s near Hexlena.
Search teams found the dead baby floating about four to five feet down in the hole less than an hour after the Bertie Sheriff’s Office received the initial call.
In the first hearing, the juvenile defendant was found guilty of the crime; but because of the age of the defendant, he was not nor could he be, charged as an adult.
Defense Attorney Perry Martin argued the child should be returned home to his parents, while the Assistant District Attorney, Assata Buffaloe, argued the child needed to be further evaluated to determine if he was, in fact, a danger to himself and to the community.
As part of the testimony to set the background of the defendant, Francis Spruill Baker- principal of Aulander Elementary where the defendant was enrolled – told the court that prior to the date of the death of Beverly, she had not had any serious problems with him.
The minor problems were having to &uot;talk&uot; to him about pushing in line, but nothing that she felt needed to be reported to his parents or that needed to be &uot;written up.&uot;
Following the death of Beverly, however, Baker said she had fifth graders come to her office seeking revenge and looking &uot;to get&uot; the defendant.
There was also discussion of two children on a school bus who apparently heard the defendant talking about what he had done to the 3-year old.
Baker said she had dealt with both issues to the best of her ability, but was very concerned for the safety of the defendant.
Another juvenile, a student from Ahoskie who &uot;played together&uot; with the defendant in the afternoons, took the stand.
With lowered head and in a whispered voice, the 7-year old told the court, in essence, that the defendant had bullied his younger brothers on several occasions. He also told the court that the defendant has shot him in the back with a pellet gun.
The father of the defendant would later testify the gun, along with a rifle and two shotguns, were kept under lock and key at all times and the keys stayed in his possession and in his wife’s possession.
Records from Colerain Elementary School where the defendant was enrolled in first and second grades, was entered into evidence.
Martin had comments from teachers beside the defendant’s grade read out loud to the court, centering mainly on the fact the first series of comments repeatedly reported the defendant needed help.
During the second year, the comments were that he still needed help in subjects, but that his grades and progress were improving. Martin then entered comments made currently about the defendant, as a student, saying he was getting high marks and the child was a &uot;joy&uot; to have in class.
Questioning an IQ score that was considered to be borderline, Martin asked the court if the teacher comments on the report cards sounded like a child that was making progress or getting worse.
The main question remains, if it is determined the 9-year old is a threat to society, what will be done with him.
Martin told the court he felt the boy, kept in Beaufort County in a detention facility since Nov. 1, was being held illegally due to his age.
Martin argued that &uot;not another child&uot; in the facility was &uot;under the age of 13.&uot;
Since the Nov. 1 juvenile hearing, the prosecution has asked Rev. Ronnie Riddick to check into finding a Level 4 facility (the highest level of detention that could house the juvenile on a 24-hour, secured basis), but none contacted would take the juvenile because of his age.
Martin argued to the court that &uot;no Level 4 facility&uot; was going to take the defendant due to him being under the age of 13, and asked again that the child be returned to his parents.
As part of his argument, Martin called the defendant’s father and mother to the stand who testified they would not sign a letter of consent to have their son entered into a Level 4 facility even if one was found.
According to statutes, parental consent must be obtained to enter a child into a Level 4 facility.
The argument went around several times during the proceedings Tuesday, with Buffaloe later telling the court that the State did not want to put the juvenile in the Level 4 facility as punishment, but rather as a means to further evaluate, in a secured setting for 90 days, to see if the juvenile did have problems that would result in further harm to others.
Based on testimony from Angela Burgess, a licensed psychologist associate with Roanoke-Chowan Human Services Center in Union, who interviewed the juvenile defendant, it was recommended that the defendant be placed in no less than a Level 4 facility.
Burgess said this recommendation was made based on the evaluation of Kim Anderson (Solid Foundations – contracted by R-C Human Services), the findings (conviction) in the first hearing for the defendant, and her own findings.
Martin questioned how many times the defendant had been seen since Nov. 1, and Burgess replied once by her and three times by Anderson.
Martin argued the defendant had not been seen by anyone following the initial interview and that the evaluation of the 9-year old was based on this &uot;two-hour meeting.&uot;
Burgess was then ridiculed on her credibility when she was unable to define a Level 3 facility, even though she explained that this was not her field.
Judge Kwasikpui asked Burgess to take the lunch break to get information concerning a Level 3 facility and present those findings when court reconvened at 1:30 Tuesday afternoon.
Following that break, Burgess returned to the stand, gave an overview of a Level 3 facility and told the court the recommendation from the R-C Human Services Center was still to have the defendant placed in a Level 4 facility for 90 days.
Riddick, who was on the stand earlier in the day to discuss options for the defendant, took the stand again in the afternoon session to inform the court he would contact more Level 4 facilities to see if he could locate one that would agree to house the defendant.
Riddick had earlier testified options such as placing the child under homebound schooling where workers would come into the home and work with the defendant up to eight hours a day, seven days a week.
He also suggested placing the child at Ahoskie Christian School.
When questioned if he had in fact discussed with Ahoskie Christian School about the defendant being accepted based on the conviction of the crime, he said he had not.
He later testified, during the afternoon session, that he had merely pointed these out as options. The final say, he told the court, would come from Roanoke-Chowan Human Services, which Burgess had already told the court was recommending a Level 4 facility.
Judge Kwasikpui told council he was going to hear closing arguments, but that no ruling would be heard until Dec. 21.
During Martin’s closing arguments, he again told the court he felt the defendant was being held illegally and that he objected to going further with the disposition. His objection was overruled.
Martin told the court he felt as though he was &uot;out of chord&uot; with the disposition because he felt he was &uot;arguing a situation&uot; that he did not believe in.
He said he had tried to keep his personal emotions out of the hearing, but after getting to know the defendant, was having a hard time doing so.
After describing the defendant’s background as coming from a &uot;trailer court home,&uot; Martin said, &uot;I compassionate with his distress.&uot; He said the psychological evaluation had been &uot;so cold in nature, it will stay with him the rest of his life.
&uot;There is nothing we can do unless we lend a hand,&uot; he stated.
Martin read again the comments made by teachers on the defendant’s report card, stating this showed the defendant as a person going from &uot;being in need of help, to showing hope, to showing progress.&uot;
Martin closed by saying the &uot;right thing&uot; to do would be to return the defendant to his home and to find the proper help.
Buffaloe, in her closing argument, basically agreed that the defendant needed the proper help and that is why placement in the Level 4 facility was being sought.
&uot;We still do not have a clinical evaluation,&uot; she said. &uot;The word punishment has not come out of anyone’s mouth on that witness stand today.
&uot;The State is seeking to provide [the defendant] with 24-hour treatment in a secure facility so that [the defendant] does not come to any harm,&uot; she said.
Buffaloe reminded the court of Baker’s testimony, and how the fifth graders – described as &uot;vigilante group&uot; – were out to &uot;get&uot; the defendant.
Buffaloe went on to argue that the defendant was not being &uot;written off&uot; because he had a borderline IQ. &uot;We need to intervene in his life,&uot; she said.
Buffaloe further argued that in order to protect the defendant and to protect the people of Bertie County, the defendant needed to be evaluated in a secured facility that only a Level 4 facility could offer.
&uot;If we don’t do something now,&uot; she said. &uot;What are we going to do in nine years or 29 years? We can’t just unleash him back to Bertie County. We need to teach him he needs to act appropriately.&uot;
Judge Kwasikpui thanked council for their time and then announced the court would reconvene at 10 a.m. Dec. 21 for his ruling.