APPEAL from the Circuit Court of Winnebago County; the Hon.
JOHN S. GHENT, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
In a bench trial the defendant was convicted of burglary, armed robbery and rape. Defendant did not testify. He was sentenced for the offenses of armed robbery and rape to concurrent terms of not less than 6 nor more than 18 years. The defendant was 16 years of age at the time of the commission of these offenses and 17 years of age at the time of sentencing. Defendant appeals from the order of the court transferring him to the adult division of the circuit court and also appeals from the convictions and sentences imposed.
The complaining witness, a woman 70 years of age, testified that in July 1976, about 10:20 in the evening, a person broke into her house by removing a screen from the dining room window. She saw a black man sitting in the window who said he would kill her if she screamed again and showed her a knife. She testified that he then tied her hands behind her back and covered her head with a sheet and she was raped. He then demanded money and she went down to the freezer room and gave him her purse. He went through the purse while sitting on top of her as she was lying on the dining room floor. She testified that the last time she knew, the purse contained $2000. She was unable to identify the defendant. She immediately went to the neighbors and when they returned the purse was found lying on the dining room floor. She also received a swollen lip and two cuts on her mouth. The screen from the dining room window, which was found lying on the ground outside the house, had the defendant's fingerprint on it.
On the morning of July 30, 1976, the defendant was given his Miranda warnings and he made a statement to the police which was transcribed and signed by him. In that statement defendant said that he and Alvin Sanders went to the victim's home on the night in question and that Alvin entered the house through the window but that he ran away. This statement was signed at 3 in the afternoon. Later that evening the defendant made a second statement to the police which was transcribed and signed by him. In the second statement defendant admitted that he had grabbed the victim, put his hands over her mouth and demanded all of her money and that they both went to the closet to get her purse. He took $250 from the purse and some small change from a dish and then tied up the victim. He denied that he had raped the victim. The next day, July 31, 1976, the defendant was again questioned by police after he had been given his Miranda warnings, and he orally admitted that he had broken into the house in question and that he had torn up a sheet and tied the victim's hands and then raped her. He also admitted orally that his second written statement was correct except for his denial of having raped the victim. On October 28, 1976, an extended motion was heard by the court to suppress the foregoing three statements. At the conclusion of the hearing the trial court suppressed the two written statements on the grounds that the defendant had requested an attorney. The court refused to suppress the oral statement given the following day, observing that the defendant had been given his Miranda warnings and had expressed no desire for a lawyer at that time.
On August 12, 1976, pursuant to the provisions of section 2-7(3)(a) of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 702-7(3)(a)), a lengthy hearing was held on the motion to permit the prosecution of the defendant as an adult under the criminal laws. The court ordered that defendant be transferred and be tried as an adult for the criminal offenses charged.
The defendant has raised five issues for review. The first is that the provisions of section 2-7 of the Juvenile Court Act are unconstitutional. In support of this contention the defendant alleges: (1) that due process is denied by the statute as there is no guidance therein concerning the burden of proof to be applied; (2) that the relaxed rules of evidence to be applied at such a hearing do not provide the necessary safeguards; (3) that the statute does not set forth a procedure by which the trial court is to weigh the six factors found in section 2-7(3)(a); and (4) that the statute is unconstitutional as it provides no immediate appeal from the order of transfer by the defendant. Although defendant raises four other issues, in the view we take of this case, we will only discuss the issue of whether all of defendant's statements, including the third oral statement, should have been suppressed.
We turn first to the defendant's broad allegation that the provisions of section 2-7 of the Juvenile Court Act are unconstitutional. Insofar as the defendant's first two contentions are concerned, the basic question is whether a section 2-7 transfer hearing is an adjudication of questions of fact or whether it is a proceeding where, after acquiring information and considering various criteria, the magistrate, in his discretion, imposes the will of the sovereign people upon the individual concerned.
The defendant has argued that to be consistent with due process section 2-7 should define the burden of proof to be followed at a transfer hearing and, secondly, that it should require that the normal rules of evidence apply.
In considering the validity of the defendant's contentions we have examined the statute involved as well as similar statutory provisions. Section 2-7(3)(a), when enacted, provided, in part, that:
"The burden and standard of proof shall be the same as under Section 5-1 of this Act." (Ill. Ann. Stat., ch. 37, par. 702-7(3)(a) (Smith-Hurd 1972).)
However, this same section, as amended by Public Act 78-341, presently reads as follows:
"The rules of evidence shall be the same as under Section 5-1 of this Act." (Ill. Rev. Stat. 1975, ch. 37, par. 702-7(3)(a).)
Section 5-1 sets out the procedure for gathering information at the dispositional hearings conducted after a juvenile is adjudicated a ward of the court. That dispositional hearing is akin, in many respects, to a criminal sentencing hearing conducted pursuant to section 5-4-1 of the Unified Code of Corrections (Ill. Rev. Stat. 1975, ch. 38, par. 1005-4-1). At both types of hearings virtually all relevant information, including hearsay, is admissible so that the judge may intelligently decide the fate of the individual concerned. No "burdens of proof" such as "beyond a reasonable doubt" or "to a preponderance of the evidence" apply at either of those proceedings since questions of fact are not before the court. Rather, the matter at hand is one of sentence or disposition which is a decision solely within the discretion of the trial judge. His decision may not be modified on appeal unless there is manifest abuse of discretion. Similarly, since there is no issue of fact to be proved or disproved at such proceeding, the relaxed rules of evidence do not violate due process, since, in essence, neither side is proving a case. In the light of these quite similar statutes it is obvious why the legislature amended section 2-7, as we have noted above. They realized that where there is no question of fact there can be no burden of proof.
1 We hold, therefore, that a section 2-7 proceeding is not an adjudicatory proceeding but rather it is an exercise of discretion by the representative of the sovereign. Since ultimate facts need not be proved, neither burdens of proof nor the strict rules of ...