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In Re Stiff

OCTOBER 17, 1975.

IN RE ALVA STIFF, A MINOR. — (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE.)


APPEAL from the Circuit Court of Winnebago County; the Hon. JOHN W. NIELSEN, Judge, presiding.

MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Alva Stiff, then age 14, was adjudged delinquent based on findings that he was guilty beyond a reasonable doubt of one count of burglary, and of two counts of murder (Ill. Rev. Stat. 1973, ch. 38, par. 9-1(a) (1),(3)). After a dispositional hearing the respondent was committed to the custody of the Department of Corrections. He appeals, contending that the court erred: (1) in denying his motion for a change of place of trial or, in the alternative, for a substitution of judges; (2) in denying his motion to suppress his confessions; and (3) in finding him guilty on all three charges.

The victim was found dead in her home on March 21, 1973. Alva Stiff and a companion, Lydell Curry, *fn1 were placed in custody on that day. On April 2, 1973, Alva Stiff's attorney moved for a substitution of judges alleging that Judge Penniman, who had transferred the Curry case to the adult division, was prejudiced. The motion was granted and the case next appeared on the call of Judge Nielsen. On April 6, 1973, a motion was filed on behalf of Stiff for a change in the place of trial or, in the alternative, for the substitution of a judge from another county. It was alleged that it would be impossible for the respondent to receive a fair trial in the community because of adverse publicity and because the judiciary was involved personally and politically with the family of the murder victim. This motion was denied.

• 1 The portion of the motion requesting a change of place of trial was properly denied under the provision of section 114-6(a) of the Code of Criminal Procedure which provides that "[a] defendant may move the court for a change of place of trial on the ground that there exists in the county in which the charge is pending such prejudice against him on the part of the inhabitants that he cannot receive a fair trial in such county." (Ill. Rev. Stat. 1973, ch. 38, par. 114-6(a).) We assume the applicability of this provision to procedures followed under the Juvenile Court Act, for the Juvenile Court Act guarantees to minors the rights of adults "unless specifically precluded by laws which enhance the protection of such minors." (Ill. Rev. Stat. 1973, ch. 37, par. 701-2(3)(a).) Because the right to a change of place of trial is a procedural right if there is compliance with the criminal code and because it is a right which is not precluded by any provision of the Juvenile Court Act, it is, therefore, applicable to proceedings under the Juvenile Court Act.

We are not persuaded by the argument, however, that "inhabitants," who may be alleged to be prejudiced under section 114-6 of the Code of Criminal Procedure, include all of the county's trial judges who may preside in a bench trial, as well as potential jurors who may be called in criminal trials. In the cases in which a denial of a motion for a change of venue has been raised on appeal, reviewing courts have stated that the dominant factor in determining whether the motion was improperly denied is whether jurors were affected. (See, e.g., People v. Berry, 37 Ill.2d 329, 332-33 (1967); People v. Allen, 413 Ill. 69, 74 (1952).) The fact that the alleged prejudice of judges is specifically treated in section 114-5 of the Code of Criminal Procedure for automatic substitution of a judge or any two judges gives us further reason to conclude that judges were not intended to be included as "inhabitants." Moreover, it has been traditional to differentiate between "inhabitants of the county" and "judges" in interpreting change of venue provisions. See Rosewood Corp. v. Transamerica Insurance Co., 57 Ill.2d 247, 251-53 (1974); People v. Ehrler, 114 Ill. App.2d 171, 178 (1969).

• 2 The alternative motion for substitution of a judge from another county was also properly denied since it alleged the prejudice of more than two judges. Section 114-5 of the Code of Criminal Procedure allows for the automatic substitution of a judge or any two judges within ten days of the date the case is placed on trial, or for substitution of a judge at any time for specific cause shown. (See Rosewood Corp. v. Transamerica Insurance Co., 57 Ill.2d 247, 253; People v. Myers, 35 Ill.2d 311, 326 (1966).) It should be noted that here defendant had already been allowed one motion for the automatic substitution of judges which was all that he was entitled to under that provision. (See Ill. Ann. Stat., ch. 38, § 114-5, Committee Comments (Smith-Hurd 1970). See also Rosewood Corp. v. Transamerica Insurance Co., 57 Ill.2d 247, 252.) And it should be further noted that there was no particular allegation that Judge Nielsen was prejudiced which would have required a hearing under section 114-5(c) of the Code of Criminal Procedure. Ill. Rev. Stat. 1973, ch. 38, par. 114-5(c). See also People v. Peter, 55 Ill.2d 443, 458 (1973).

Alva Stiff next claims that the court erred in denying his motion to suppress his oral statement made to the police officers and his later statement at the police station which was reduced to writing.

The officers testified that on March 21, 1973, they were patrolling an area on the northwest side of Rockford and concentrating on the area surrounding Rockford West High School because there had been several recent burglaries in that area. Stiff and a black youth were observed walking in the area at approximately 11:30 a.m. on March 21, 1973. The officers said that their attention was directed to the youths because they appeared to be younger than high school age and should not have been out of school at that time, and because they seemed very interested in the movement of the squad car. The officers returned to the area and at approximately 12:20 p.m. again saw the boys running across lawns of houses in the area and as the squad car went around the block the officers saw Stiff and his companion running out from between two houses. When the youths saw the police Stiff stopped but the other boy turned around and ran back between the houses.

One of the officers stated that at this point he called Stiff over to the car and the following conversation ensued. Stiff asked, "What did we do wrong?" To this inquiry the officer responded, "Why were you running?" Stiff responded, "If I tell you everything will I get in trouble?" And to this the officer answered, "It depends on what you have done."

Stiff was then placed in the back seat of the squad car and as soon as he was seated he volunteered, "I have a knife" and he then reached into his shirt, pulled out a knife and gave it to the officer. Then Stiff offered, "He has a gun and will use it," referring to the other companion who had run away. At this point the officers left the scene of Stiff's apprehension and proceeded to another street where they apprehended Lydell Curry. They placed Curry in the back seat of the squad car with Stiff and read to both boys the Miranda warnings. Both boys indicated that they understood their rights.

On cross-examination one of the officers stated that he had issued the request to come over to the squad car in a command tone and that they made it apparent to Stiff that he had to get into the car. The officer also testified on cross-examination that he would not have allowed Stiff to leave unless he and his partner were satisfied that Stiff had done nothing wrong. It was admitted that Stiff was not given the Miranda warnings at this time.

There was further testimony that on the way to the station Stiff volunteered, "Can I tell you something important" and that before the officer could respond Stiff continued, "We just tried to break into a house and there was an old woman present and while I was standing in the back door I heard her say something like what I thought was `Hi' and I heard a shot." Stiff told the officer then, "You should check it out," and directed the officers to the decedent's house where upon investigation the body was found.

After the officers had discovered the body one of them came back to the car and read Stiff his rights from a card he kept in his wallet and asked him if he understood them. Stiff responded that he did, was asked whether he wished to talk, and answered affirmatively. He was then asked what had happened to the woman in the house and when the officer told him that she was dead Stiff began to cry. He did not say anything further on the way to the police station.

Stiff was taken to the police station and remained there for about an hour without begin questioned. The officers did not attempt to contact anyone to inform them that Stiff was in custody nor did the youth ask to make a phone call. The officers testified that before taking a statement from the youth at the police station Stiff was again informed of his rights ...


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