STATE APPEALS REDUCTION OF CHARGE IN BAT SLAYING.

Byline: KAREN MAESHIRO Staff Writer

The state filed an appeal Tuesday of an appellate court ruling that reduced to voluntary manslaughter the murder conviction of a Palmdale youth who killed an older teen with a baseball bat.

The state is asking the same three-judge panel from the 2nd District Court of Appeal to reconsider its decision that overturned the second-degree murder conviction of Gregory Harris Jr. and ordered he be resentenced on the lesser charge.

``There is substantial evidence that the conduct by the victim in the instant case was not sufficiently provocative to require reduction of appellant's offense to manslaughter,'' the state Attorney General's Office wrote in a petition for rehearing. ``The overwhelming evidence in the instant case is that the victim was merely teasing appellant and never tried to injure him.''

Jeremy Rourke, a 15-year-old Highland High School freshman described by family and friends as an avid athlete who enjoyed being a junior umpire, died within hours of being hit in the head April 12, 2005, at the Palmdale PONY League baseball complex, where he was a spectator.

While they stood in line at the snack bar, Rourke teased Harris about losing a game and pushed him, witnesses said. Harris hit Rourke in the knee with an aluminum bat, then seconds later hit him on the neck, severing an artery. Harris, now 15, was sentenced in July 2005 to the California Youth Authority until he is 25.

The appellate court found that Harris, 13 at the time, acted ``in the heat of passion'' and did not harbor an intent to kill. The appellate decision noted Juvenile Court Judge Richard Naranjo's statement about Harris' emotional state, that he was upset, angered and ``in the heat of passion.''

A person who kills in the heat of passion lacks malice, an essential element of second-degree murder, the ruling said. ``Here, all the evidence indicated Gregory acted in the heat of passion, as the trial court stated, and therefore fails to support the finding of second-degree murder,'' the ruling said.

The state's petition said Harris acknowledged that Rourke had not used a weapon, never took steps toward him prior to being hit with a bat, never made a statement indicating that he intended to hurt Harris, and that he, Harris, could have walked away.

Moreover, Harris never directly testified that he was actually provoked in a manner sufficient to satisfy the legal standard, the petition said.

``His explanation for why he struck the first blow with the bat was `to get him to stop,''' the petition said. ``Although appellant testified that he was scared, he never provided any factual basis for a belief that the victim attempted to hurt him prior to the first blow with the bat.

``Moreover, appellant's departure from the victim's location to retrieve his bat represented a distinct and divisible event in the sequence of events and provided him sufficient time to `cool down,''' the petition said.

Among the facts in dispute during the trial was whether Harris first had to walk several steps to retrieve his bat, indicating he had time to reflect on what he was about to do.

karen.maeshiro(at)dailynews.com

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