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People v. Diaz

OPINION FILED AUGUST 3, 1979.

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

v.

GERARDO DIAZ, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ANTHONY SCOTILLO, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 21, 1979.

Following a hearing pursuant to section 2-7(3) of the Juvenile Court Act (Ill. Rev. Stat. 1973, ch. 37, par. 702-7(3)), defendant was transferred from the juvenile division to the criminal division of the circuit court for prosecution as an adult. On appeal, he contends that the juvenile court judge erred in (1) basing the transfer decision on evidence of probable cause which was exclusively hearsay; (2) refusing to allow him to present witnesses to rebut the allegation of probable cause; (3) failing to consider the required statutory factors, and (4) rejecting the uncontradicted testimony that defendant was treatable as a juvenile. He also contends (5) that the appropriate remedy here is unconditional release, and (6) that the record should be sealed and the opinion of this court published under a pseudonym. He raises no contentions regarding his conviction.

The following pertinent facts are contained in the record.

On July 31, 1973, a petition for adjudication of wardship was filed, alleging that Gerardo Diaz, age 16, was delinquent. The petition stated that on July 29, 1973, Diaz committed the offenses of aggravated battery (Ill. Rev. Stat. 1973, ch. 38, par. 12-4(b)(6)), armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18-2), and attempt murder (Ill. Rev. Stat. 1973, ch. 38, par. 8-4). According to the petition, Diaz shot Officer Eveland. The motion to transfer to the Criminal Division alleged as follows:

"1. The petition now pending in this Court alleges that the minor has committed the offenses of ARMED ROBBERY, ATTEMPTED MURDER AND AGGRAVATED BATTERY.

2. There is sufficient evidence relating to this charge upon which a grand jury may be expected to return an indictment of the minor.

3. The alleged offenses were committed in an Aggressive and Premeditated manner against the persons of GARFORD EVELAND AND LEE SMERNIS.

4. The minor is sixteen (16) years old (born on April 12, 1957).

5. The minor has eight (8) prior station adjustments (3) prior Court referrals.

6. There are no facilities particularly available to the Juvenile Court which would be adequate for the treatment and rehabilitation of the minor.

7. The best interests of the minor and the security of the public may require that the minor continue in custody and under supervision for a period extending beyond his minority."

At the hearing on the motion to transfer the following pertinent evidence was adduced.

Investigator Kaplan, Chicago Police Officer

On July 29, 1973, he was assigned to investigate an alleged armed robbery, aggravated battery and shooting. At 7 a.m. on that date he interviewed Lee Smernis, the alleged victim, in the police station at 943 W. Maxwell Street. His partner, Investigator Soltys, was present during the interview. Smernis stated that as he was stepping out the door of a tavern at 2014 W. North Avenue at approximately 4:30 a.m. that morning, a man approached him, pulled a gun, and announced a holdup. Smernis broke away and ran across the street where he was confronted by a second man with a gun. The first man demanded money from Smernis. Smernis pulled $15 from his pocket and gave it to the first man. Smernis again tried to flee, but the two men stopped him and demanded more money. Smernis then gave the men "four twenties" and some singles. The men took a wristwatch from Smernis. At that point, Smernis stated, an off-duty police officer, Garford Eveland, came out of the tavern. Eveland was carrying a gun. The two men began to flee. Smernis told Kaplan that he next "heard gunshots and saw both men with their guns pointed at Officer Eveland." The two attackers were firing their guns in the direction of the tavern and at Officer Eveland. Kaplan could not recall whether Smernis told him who fired the first shot.

On cross-examination Kaplan admitted that he was not present during the alleged robbery. Neither he nor Officer Soltys "took down" ...


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