State v. Tyler P.

299 Neb. 959

911 N.W.2d 260

STATE of Nebraska, appellant,

v.TYLER P., Appellee.

No. S-17-1250.

Supreme Court of Nebraska.

Filed May 11, 2018

Donald W. Kleine, Douglas County Attorney, Amy G. Jacobsen, and Jameson D. Cantwell, for appellant.

James Martin Davis, of Davis Law Office, for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ., and Riedmann, Judge, and Martinez, District Judge.

Funke, J.Tyler P. was 17 years old when he was charged in the Douglas County District Court with multiple felonies arising from a disturbance at his family's home. He filed a motion to transfer the case to juvenile court, which was sustained. The State appeals, assigning error to the grant of the motion to transfer. We affirm.

BACKGROUND

FACTS

The State filed an information in the district court for Douglas County charging Tyler with five felonies: two charges of attempted second degree murder, a Class II felony; two charges of use of a deadly weapon (firearm) to commit a felony, a Class IC felony; and one charge of second degree assault, a Class IIA felony.

Tyler filed a motion to transfer the matter to juvenile court under Neb. Rev. Stat. §§ 29-1816 (Supp. 2017) and 43-261 (Reissue 2016). Tyler requested the district court waive jurisdiction of the matter to the separate juvenile court for further proceedings under chapter 43, article 2, of the Nebraska Revised Statutes.

A juvenile transfer hearing was held by the district court at which several witnesses testified and the State offered police reports concerning the incident of September 3, 2017. Gail P., Tyler's mother, testified about the events surrounding the incident; Dr. Terry Davis testified about Tyler's mental condition; and Heather Briggs, a juvenile probation officer, testified about the services available to Tyler in juvenile court.

Gail testified that Tyler was born in February 2000 and that she and Dennis P. are Tyler's parents. She also testified that Tyler resided with Dennis and Gail in their home in Waterloo, Nebraska; that he was active in high school sports, including being a standout football player; that he had minimal disciplinary problems at home or at school; and that he had never been in juvenile court.

She further testified that on the evening of September 2, 2017, Tyler had a group of friends at the house to watch a football game. In the early morning hours of September 3, Gail noticed activity outside the house so she and Dennis went to investigate. In doing so, they discovered that the interior of a barn on their property had significant damage and they found beer cans present. As a result, Dennis and Gail confronted Tyler about consuming alcohol and breaking the rules. In doing so, they noticed that Tyler was unsteady on his feet and lisping and, at one point, he sat down on the ground and stared blankly at them. They demanded that Tyler give them his car keys and cell phone in an effort to punish him for his behavior. At that time, Tyler became confrontational and began to verbally and physically abuse Dennis and Gail and block their entrance into the house. Tyler then ran to a shed and returned with a baseball bat. Dennis called the 911 emergency dispatch service for assistance, which caused Tyler to chase Dennis and threaten him with the bat. Eventually Dennis and Gail were able to gain access to the house and lock the door. Tyler struck the door of the house with the bat several times and then gained access to the house through another door.

Gail was again confronted by Tyler in the family room of the home. At that time, she noticed that "his eyes were black" and he was laughing in a "creepy" manner. Tyler then ran toward the family's gun safe. Dennis lunged at Tyler and grabbed his legs in an effort to stop him from reaching the guns. Tyler broke free of Dennis and began stomping on his head and kicking him in the back. Tyler picked up an oversized ottoman in an effort to smash Dennis with it. Gail then began to kick Tyler in an effort to distract him from hurting Dennis further. Tyler then punched Gail in the head and struck her in the legs with the bat. After striking Gail, Tyler fled the house. While outside, Gail could hear Tyler laughing, yelling, and smashing things around the property. Gail testified that it was a very foggy night, so she could not see him at the time. Dennis and Gail exited the home and were standing on a patio when Tyler emerged from the fog. He appeared "eerily calm" and was saying that it was too late for him, that he was not good at football, and that he did not deserve to live. Tyler then went into the house and retrieved a shotgun.

Law enforcement arrived, and Tyler fled on foot. Deputies attempted to locate Tyler on the property, but due to the intense fog, they were not able to see him. Tyler then approached Gail and pointed the gun directly at her. Gail pleaded for Tyler not to shoot her and to put down the gun. Tyler then ran off again. Gail then heard gunfire and saw that Tyler had been shot.

Gail also testified that though she did not see Tyler shoot at the officers, she knew that he had been accused of doing so.

While in the hospital, Gail told Tyler that he had shot one of the officers.

Davis, a board-certified psychiatrist who is also certified in forensic psychiatry and addiction psychiatry, testified on behalf of Tyler. Davis testified that while playing a football game on September 1, 2017, Tyler had sustained four head-to-head significant impacts which most likely caused a concussion. Davis stated that Tyler had no memory of the events occurring on September 3 and that it was his diagnosis that Tyler suffered from neurocognitive disorder due to a traumatic brain injury. Davis based his diagnosis on the evaluation he completed of Tyler, evaluations completed by Tyler's pediatrician and a neuropsychologist after the shooting, and an interview of Gail in which she detailed Tyler's behavioral changes on the day of the incident. Davis noted that symptoms exhibited by Tyler, including such things as a personality change, the flatness of his affect and emotional display, his aggressive behavior, his change of smell and taste, and his hypersensitivity to sound and light are fairly classic signs of a traumatic brain injury. Davis testified that though Tyler had a blood alcohol content of .148, his behavior was not the result of alcoholic intoxication or an alcoholic blackout.

Davis opined that

Tyler was in an amnestic episode and did not fully understand or appreciate what he was doing or that it was wrong, since he has no memory of it now. Was he able to intentionally carry out specific motor actions? Yes. He was able to get a baseball bat. He was able to chase after his mother. He was able to go to the gun cabinet and get a gun. He was able to load the gun, I assume, and fire it. But in terms of his intent to harm anyone or his appreciation of what his actions were at that time, those would have been substantially impaired.

Davis further opined that Tyler's prognosis was good. Davis stated that Tyler "should pretty much recover" within 3 months from the type of brain injury he sustained. Though there may be some lingering effects, Davis believed those could be addressed through rehabilitation treatment through an outpatient brain injury clinic. He also testified that the events of September 3, 2017, appeared to be an isolated incident, that it was unlikely Tyler would commit a violent act in the future, and that incarcerating Tyler was not necessary for the safety of the public.

Briggs testified that she has been a juvenile probation officer for 13 years. Briggs stated that juvenile probation could offer services, including inhome services, family support, tracker, electronic monitoring, and assistance with arranging outpatient treatment for mental health or substance abuse. She further testified that due to Tyler's turning 18 in February 2018, some services would be limited, including out-of-home placement. In addition, Briggs testified that Tyler would be subject to the jurisdiction of the juvenile court only until he reached the age of 19.

DISTRICT COURT'S FINDINGS

At the completion of the juvenile transfer hearing, the district court ruled from the bench and later entered a written order. The written order indicated that evidence was adduced and that after having considered the criteria set forth in Neb. Rev. Stat. § 43-276 (Reissue 2016), and for the reasons stated in open court, Tyler's motion to transfer the case to the separate juvenile court of Douglas County was sustained.

The court's full oral pronouncement from the bench is provided as follows:

It goes without saying, but the Court will say it anyway, that this was a very serious and life-threatening event to all those involved, and based upon the fact that [Tyler] does not have a memory as to the events, it is—I guess, in that sense, it arguably deprives the Court of being able to analyze what the motivation for the events would be or motivation for why he did what he did on that night.

At the same time, there is evidence, I guess, adduced from the expert, Dr. Davis, of this, in his diagnosis, of the neurocognitive disorder, which resulted from the traumatic brain injury, and that does at least coincide with the fact that a football game was played, that [Tyler] was involved in the day before, as well as another game, I guess, arguably, the week before. And when you're weighing all that with the factors in [§] 43-276 and having to balance those with the fact that he's never been through the Juvenile System, then you're trying to balance those with the safety of the public. And that is further balanced by, I guess, the fact that he has been out on bond for some time, and you could argue that there has at least been some time where he may have been able to access the public and whether this was just a one-time event.

And I guess from the Court's perspective, I would not see if he were to be transferred to the Juvenile Court, that that would be

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