APPEAL from the Circuit Court of Lake County; the Hon. HARRY
D. STROUSE, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
The defendant, Peter Woodward, who was 15 years old at the time of the alleged homicide and 16 years old at the time of trial, was convicted as an adult of voluntary manslaughter in a jury trial and sentenced to 3-15 years' imprisonment. He appeals.
Defendant contends that section 2-7(3) of the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 702-7(3)) is unconstitutional because it does not set forth a specific burden of proof to be met prior to the transfer to adult jurisdiction; that the trial court violated the defendant's constitutional rights by failing to choose a less restrictive alternative; that the trial court erred in refusing to instruct the jury of the complete defense of self-defense; and that trial errors deprived him of a fair trial.
The State raises the additional issue that defendant's failure to file a post-trial motion operates as a waiver of all issues. The instructional error complained of, under the circumstances which will be hereafter detailed, however, rises in our view to one of "plain error" which we would feel constrained to review under Supreme Court Rule 615(a) (Ill. Rev. Stat. 1977, ch. 110A, par. 615(a)). *fn1
Defendant's initial claim that the transfer provisions of the Juvenile Court Act are unconstitutional in that they do not set forth a specific burden of proof to be met prior to the transfer to an adult jurisdiction has been decided against him in the recent Illinois Supreme Court case of People v. Taylor (1979), 76 Ill.2d 289. The defendant now argues his further claim that due process required the State to show the least restrictive alternative as being employed and that this prevents the transfer as a matter of due process. The defendant reasons that since the legislature created a separate juvenile court system with jurisdiction over all juveniles, it follows implicitly that "non-criminal treatment is to be the rule and the adult criminal treatment, the exception * * *," citing Kent v. United States (1966), 383 U.S. 541, 560, 16 L.Ed.2d 84, 97, 86 S.Ct. 1045, 1057. He does not argue that a right to treatment as a juvenile is mandatory but that there is a "presumption" that he will be so treated, which must be overcome by a showing that the juvenile is not amenable to such treatment.
1 It is generally true that a State cannot "unnecessarily burden or restrict constitutionally protected activity." (Dunn v. Blumstein (1972), 405 U.S. 330, 343, 31 L.Ed.2d 274, 285, 92 S.Ct. 995, 1003.) However, the right to be prosecuted as a minor is not a constitutionally protected right; however, where a minor is so prosecuted he is entitled to the fundamental requirements of due process. (See In re Gault (1967), 387 U.S. 1, 19, 18 L.Ed.2d 527, 541, 87 S.Ct. 1428, 1439.) To the extent that the State has extended a right or privilege to juveniles not protected by the constitution it still may not deprive the juvenile of that right without observing procedural safeguards. See, e.g., Goldberg v. Kelly (1970), 397 U.S. 254, 261-63, 25 L.Ed.2d 287, 295-96, 90 S.Ct. 1011, 1017-18.
2 As applicable here, the State of Illinois need not demonstrate that no less restrictive alternative exists for the treatment of the accused minor so long as it satisfies the requirements of procedural due process in determining where and how the minor will be tried. Here there were no violations of the requirement of due process since the trial judge followed both the letter and spirit of section 2-7 of the Juvenile Court Act. Moreover, section 2-7 of the Juvenile Court Act is modeled on the provisions in effect in the District of Columbia Code, interpreted and implicitly approved in Kent, 383 U.S. 541, 554-56, 16 L.Ed.2d 84, 93-94, 86 S.Ct. 1045, 1053-54.
The refusal of the trial court to instruct the jurors on the issue of self-defense in accordance with an instruction tendered by the defendant raises a serious question which requires a review of the facts and circumstances bearing on the homicide.
On the evening of May 14, 1977, the defendant was assisting his father in repairing a motorcycle in the back yard of the Woodward home in Zion. Selvin Hamilton, a 16-year-old boy who also lived in the neighborhood, walked into a vacant lot which adjoined the Woodward home holding a Doberman pinscher dog on a leash. According to the testimony of defendant's father, Hamilton was encouraging the dog to defecate near the senior Woodward's car, which resulted in a heated argument. In the course of the argument Hamilton is claimed to have said to the senior Woodward that the dog had a right to defecate any place he wanted to. Also in the course of the argument the senior Woodward threw a small propane tank at the animal. The defendant's father testified that the dog then was brought by Hamilton directly onto his property, that the dog was snapping, growling, barking and lunging forward on the leash; that he told the boy that if he didn't take the dog and leave he was going to take a hammer to it. Again, according to the testimony of the defendant's father, Hamilton indicated that he was going home but that he would return very shortly with his ".44" and left the lot.
Woodward, Sr., testified that shortly thereafter a young boy who lived in the neighborhood told him that Selvin Hamilton was on his way back and that he had his gun with him. Defendant's father looked over in the direction of the Hamilton residence and saw Selvin returning to the scene of the argument this time with two dogs, one of which was a Doberman pinscher and the other a German shepherd; that Selvin "had his hands stuck inside of his jacket"; that Woodward, Sr., then went into the house and called the police; but that before the police arrived there was a confrontation between Selvin Hamilton and the defendant.
The defendant, while the confrontation between Hamilton and his father was going on, had gone into the house and secured a .22 gun which was "on the wall." He testified he was going to give the gun to his father but did not. The defendant left his residence by the front door and as he was going around the house to the back door saw Selvin Hamilton approaching the house again. At this time he saw the two dogs with Hamilton. Selvin called the defendant's name. The defendant testified: "I was getting really scared, I didn't know what to do." Defendant said that he was afraid that Hamilton would release the Doberman pinscher, which appeared to have a ferocious disposition, and he also feared that Selvin was carrying the .44 gun and that he would pull it on the defendant. Defendant further testified that Selvin Hamilton's Doberman pinscher "started growling, and then it jumped, like it was going to break loose of the leash * * *."
At this point, defendant said he fired in the general direction of Selvin Hamilton but the bullet missed Hamilton. The defendant testified that at the time of the first shot he did not intend to kill or injure Hamilton but merely intended to frighten him. Defendant testified that after the gun was fired the first time, Selvin Hamilton said "that ain't nothing but a pop gun." Defendant said that after making this statement Selvin began to laugh and "started to walk toward me * * *" and it was at this time that defendant fired a second time. Again, the defendant testified he was merely trying to frighten Hamilton into leaving him and his family alone. However, on this occasion, the bullet struck Selvin Hamilton who, although hurt, did not lose consciousness and returned to his home. Shortly thereafter an officer of the Zion police department arrived at the Hamilton residence. The victim, because of his condition, was unable to tell the officer what had happened. The officer assisted a paramedic in moving Hamilton to the floor and at this time found a .77-caliber pellet gun, lying near the victim's right leg. The victim died at the hospital.
Defendant was charged with two counts of murder in Hamilton's death. Following the trial the jury returned a verdict of guilty of voluntary manslaughter.
At the close of the evidence the defendant's counsel tendered, among other instructions, Illinois Pattern Jury ...