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People v. Underwood

OPINION FILED AUGUST 1, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

STEVEN J. UNDERWOOD, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Woodford County; the Hon. SAMUEL G. HARROD, III, Judge, presiding.

MR. JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:

The defendant, Steven Joseph Underwood, appeals his conviction for aggravated battery, a violation of section 12-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 12-4). The facts giving rise to the offense relate to an encounter between the defendant and a young married couple, Richard and Lori Downs, during the evening of September 14, 1975, in Spring Bay, Illinois.

A car belonging to the Downs couple broke down a few blocks from their home in Spring Bay. While Richard Downs worked on the car, Lori Downs began walking home to get their pickup truck and a chain to tow the car. On the way, she was met by three teen-aged boys who followed her, yelling obscenities.

Lori Downs was upset by the incident and, upon returning to the disabled car, she told her husband about the taunts shouted by the three boys. Her husband also became upset and they both boarded the truck so that they might search for the three boys to tell them to leave Lori Downs alone. Within minutes, the Downs couple pulled into a service station where they spotted the defendant and two of his friends.

When Richard Downs loudly challenged the three boys about bothering his wife, two of the boys walked away, while the defendant lingered and responded. Downs stepped out of his truck and picked up a piece of chain that was two or three feet long. A shoving match ensued, after which Downs returned to his truck. As the truck pulled away, the defendant approached, called Downs some names and shouted about fighting without the chain. Downs again got out of the truck and scuffled with the defendant for about one minute. During the course of this struggle, Downs struck the defendant in the mouth and the defendant stabbed Downs in the stomach three times.

Within minutes, the defendant departed from the scene with his mother who had driven up after the stabbing. When they arrived home, the defendant, while crying and bleeding from the mouth, told his mother and stepfather what had happened. Soon the police arrived and transported the defendant to the Woodford county jail. During that trip, the defendant asked a deputy sheriff if he was correct "in using a knife for self-defense." Later, he stated at the jail that, "I stabbed him once, I don't know whether I got him the second time, but I tried."

The defendant was 15 years old at the time of the offense. On September 16, 1975, the Office of Court Services for the circuit court filed a petition seeking to declare the defendant a ward of the court under the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 701-1 et seq.). On September 25, 1975, the State filed a petition to prosecute the defendant-minor as an adult pursuant to section 2-7 of the Act (Ill. Rev. Stat. 1973, ch. 37, par. 702-7) which was granted by the court. On October 3, 1975, the grand jury returned an indictment charging the defendant with aggravated battery. After being tried before a jury, the defendant was found guilty and sentenced to 2 to 6 years imprisonment.

On appeal, the defendant alleges that (1) the court abused its discretion in granting the petition to prosecute as an adult and that (2) the court erred in not preparing and giving a jury instruction defining the term "reasonably believes" which is contained in the self-defense instruction that was given to the jury. Illinois Pattern Jury Instructions, Criminal, No. 24.06 (1968) (hereinafter cited as IPI Criminal No. 24.06).

• 1 Whether a minor is to be treated under the provisions of the Juvenile Court Act or is to be prosecuted as an adult is a question involving the exercise of the circuit court's discretion. (Section 2-7 of the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 702-7); People v. Rahn (1974), 59 Ill.2d 302, 304-05, 319 N.E.2d 787, 789; People v. Jiles (1969), 43 Ill.2d 145, 149, 251 N.E.2d 529, 531.) Reviewing courts> are limited to determining whether the circuit court's findings are against the manifest weight of the evidence or whether the findings reflect an abuse of discretion. People v. Curry (1975), 31 Ill. App.3d 1027, 1029, 335 N.E.2d 515, 517.

Section 2-7(3)(a) of the Juvenile Court Act provides that the court, in ruling on a petition to prosecute as an adult, shall:

"* * * consider among other matters: (1) whether there is sufficient evidence upon which a grand jury may be expected to return an indictment; (2) whether there is evidence that the alleged offense was committed in an aggressive and premeditated manner; (3) the age of the minor; (4) the previous history of the minor; (5) whether there are facilities particularly available to the Juvenile Court for the treatment and rehabilitation of the minor; and (6) whether the best interest of the minor and the security of the public may require that the minor continue in custody or under supervision for a period extending beyond his minority." Ill. Rev. Stat. 1973, ch. 37, par. 702-7(3)(a).

In the instant case, the trial court conducted a full hearing on the wardship petition and on the petition to prosecute as an adult. At the hearing, defense counsel conceded that the grand jury could be expected to return an indictment on the evidence presented at the hearing. Counsel also agreed that the alleged offense was aggressive, although he contended that it was a "spur-of-the-moment thing" and not premeditated. The evidence, however, was sufficient to support a finding that the attack was premeditated because the defendant stabbed Downs three times with an opened pocket knife after Downs had set his chain aside. Although the defendant was a 16-year-old at the time of his trial, he was a large child who, in his mother's words, acted like a 20-year-old. The court considered a detailed survey of the defendant's social history which was compiled by the assistant director of court services. The sheriff's and defendant's testimony reflect that the defendant was on probation for a prior burglary, that the defendant had used hard drugs and that he continued to drink alcoholic beverages and smoke marijuana. The record also reflects that the court considered the adult and juvenile rehabilitation or treatment facilities available for the defendant and the benefit that might accrue if those facilities would be used in the instant case.

On appeal, even though the record reflects that the trial court considered all of the factors set forth in section 2-7(3)(a) of the Juvenile Court Act, the defendant alleges that the court abused its discretion in granting the petition to prosecute as an adult. The defendant contends that the circuit court granted the petition to prosecute as an adult in order to prevent an appeal on the question of whether the defendant was entitled to release from custody during the time the court considered the petition. The defendant has pointed out that, at the close of the hearing on the petition, the court first stated that it would take the petition under advisement for a day or two and that the defendant would be returned to the county's juvenile detention facilities. When defense counsel requested that the defendant be released pursuant to section 4-2 of the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 704-2) because he had already been detained for ten judicial days, the State objected, and the court stated it was going to go ahead and grant the petition to prosecute as an adult to prevent a muddying of the record.

• 2 The court permitted the sheriff and a court services officer to testify concerning their opinions on the ultimate issue of whether the petition to prosecute as an adult should be granted. The court, however, later stated that it was unfair to ask the court services officer for her opinion. Although we agree that one of the principal functions of the court services officer is to gather facts for the court, we find it curious that the judge permitted the recommendation of the sheriff which urged the defendant's prosecution as an adult but was critical of the contrary recommendation of the court services officer. In view of the fact, however, that the record clearly reflects that the judge recognized and gave ...


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