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In Re Burns

OPINION FILED DECEMBER 18, 1978.

IN RE MYRA BURNS, A MINOR. — (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLANT,

v.

MYRA BURNS, RESPONDENT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM SYLVESTER WHITE, Judge, presiding.

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

At issue is whether the juvenile court judge abused his discretion in deciding that the defendant Myra Burns, a minor, should remain under the jurisdiction of the juvenile court and that prosecuting her under the criminal law for her alleged role in the armed robbery and murder of Abraham Abdallah in Chicago on May 27, 1977, would not be in the best interest of the minor defendant or of the public.

We believe this is the first time in Illinois that a reviewing court has considered whether a juvenile court judge abused his discretion in deciding that a minor should not be prosecuted as an adult. *fn1 In People v. Martin (1977), 67 Ill.2d 462, 367 N.E.2d 1329, the court held that denial of such a transfer motion was an appealable order, and remanded the case to the Fifth District Appellate Court for review of the denial on the merits. That appeal became moot, however, when the defendant died before the appellate court acted.

• 1 In exercising discretion, the juvenile court must consider the six factors enumerated in section 2-7(3)(a) of the Juvenile Court Act (the Act) (Ill. Rev. Stat. 1975, ch. 37, par. 701-1 et seq.), designed to guide it in deciding whether a juvenile should be prosecuted as an adult; in our review, we must determine whether the court's conclusion after applying those factors was an abuse of discretion. That paragraph of the Act provides:

"(3) If a petition alleges commission by a minor 13 years of age or over of an act which constitutes a crime under the laws of this State, and, on motion of the State's Attorney, a Juvenile Judge, designated by the Chief Judge of the Circuit to hear and determine such motions, after investigation and hearing but before commencement of the adjudicatory hearing, finds that it is not in the best interests of the minor or of the public to proceed under this Act, the court may enter an order permitting prosecution under the criminal laws.

(a) In making its determination on a motion to permit prosecution under the criminal laws, the court 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. 1975, ch. 37, par. 702-7(3)(a).

The defendant concedes in this court, as the trial court found, that at the hearing on the State's motion to permit the defendant's prosecution as an adult, the State presented sufficient evidence implicating her in an armed robbery and murder for a grand jury to return an indictment on both offenses. Our review of the record confirms that the evidence presented was adequate for this purpose.

The evidence showed that the defendant was involved in the stabbing and murder of Abraham Abdallah on May 27, 1977. It appears that Kenneth Brown, a friend of the defendant, was the active, knife-wielding killer. Kenneth Brown in fact admitted that he did the stabbing, although in his first statement to the police he said the defendant did the stabbing. The lone eyewitness to the incident told a police investigator that he heard the defendant tell Brown, her companion at the time, that she felt like sticking someone up. The eyewitness also stated that the defendant became frightened when Brown started to stab Abdallah, who happened to be passing by, and asked Brown to stop stabbing the man. But, following the stabbing, the defendant removed currency from the pockets of the deceased. Thus, if the only consideration were whether a grand jury could be expected to return an indictment on the evidence presented, transfer of this case to the criminal court would be required.

• 2 However, evaluation of the other five factors listed in the above-quoted statute and of the defendant's case as a whole, leads us to the conclusion that there are sufficient reasons not to disturb the juvenile court judge's ruling. The second consideration suggested by the statute is whether the alleged offenses were committed in an aggressive and premeditated manner. The evidence adduced at the hearing demonstrated that the defendant initiated the incident by expressing her desire to hold someone up; and she made her suggestion sufficiently before the incident occurred to warrant the conclusion that the armed robbery was premeditated. Nevertheless, nothing in the record suggests that she carried a knife or stabbed the murder victim, or that she encouraged the murderer or participated in the murder. On the contrary, her companion admitted to stabbing the victim, and the State's eyewitness said that the defendant was very frightened and asked her companion not to stab the victim. Therefore, although the evidence presented showed that the defendant's participation in the robbery was premeditated, and even that she may be legally accountable for the murder which occurred, the evidence also suggests that she did not premeditate, or even take part in, the actual stabbing. The State pictures the defendant as a knife-wielding murderess who joined in killing an innocent man in cold blood; the evidence, however, shows that the defendant was a 15-year-old girl at the time of the murder, who suggested a robbery, became upset when her companion turned to violence, and attempted to stop the unplanned killing.

And it is at this point that the third consideration pointed to by the statute, the minor's age, deserves some attention. At the time of the incident in question, Myra Burns was 15 years old: an age where the path a person's life may take remains very much an uncertainty. It is an age where it is too early to give up easily or in frustration or exasperation the hope that a young person will ever become a productive member of our society. This generalization is particularly apt in the light of the personal history of Myra Burns, as portrayed by the evidence at the juvenile court hearing.

The remaining evidence introduced at the hearing, encompassing the defendant's history and her emotional and psychiatric problems, related to the last three factors set out in section 2-7(3)(a). It consisted of a 12-page social investigative report prepared by a Cook County juvenile probation officer, Russell Ladson, Mr. Ladson's testimony before the juvenile court judge covering the disposition he recommended for the defendant, and two written psychiatric evaluations, one by a registered psychologist and one by a psychiatrist. No evidence was offered by the State to demonstrate that the reports offered by the defendant were inaccurate or misleading or that the opinions expressed therein were not well founded.

According to the report prepared by Probation Officer Ladson, the defendant was born in Wisconsin on September 9, 1961. Her mother, Wilma Burns, had her own full measure of emotional problems and instabilities, and they had an adverse effect upon her daughter early in life, depriving the defendant of a stable home environment. Her mother worked at a number of different jobs, including employment as a truck-farm laborer and as a shake-dancer. The mother had hard times as her daughter was growing up; she traveled a good deal, raising her daughter in a variety of insecure situations, sometimes including sleeping in abandoned cars. The defendant's father was not married to her mother, and he made no contribution to the welfare of the defendant or her mother. During her early years, the defendant not only had no father, but she also was exposed to a number of relationships her mother had with different men. Whenever these relationships terminated, the defendant herself felt rejected. The defendant's grandmother, who would from time to time attempt to care for her, and in fact was given custody of the defendant at one time, felt that the mother was not a proper parent. And Probation Officer Ladson suggested in his report that the defendant's problems began long before her initial court contact in Wisconsin in 1972 when she was 10 years old, largely because her mother was never able to properly supervise and care for her.

Around 1970, the defendant's mother became deeply religious. She quit her job and became a recipient of public assistance in order to stay home with the defendant, but, owing in part to the intensity of the mother's religious convictions, staying in one place became impossible. The mother would "wear out her welcome" in one temporary living arrangement after another. Frequently without food or shelter, the defendant often ran away on these occasions. She would then use her skill in establishing short-term relationships with persons who fed and sheltered her for several days at a time.

After initial attempts in Wisconsin to find a home for the defendant were unsuccessful, the mother and daughter came to Chicago in 1974. The mother told Mr. Ladson that she brought her daughter to Chicago to get some treatment and counseling for her; however, reports prepared by Milwaukee social workers indicated that both the defendant and her mother were receiving counseling and therapy in Milwaukee. The mother ...


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