APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
COUSINS, JR., Judge, presiding.
MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Cook County, defendant, Darnell Hamilton, was found guilty of deviate sexual assault and attempted rape, for which he was sentenced to concurrent terms of 6 to 10 years and 4 to 12 years, respectively, in the Department of Corrections. On appeal, defendant argues: (1) that his transfer from juvenile court to criminal court under section 2-7 of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 702-7) was unconstitutional because the statute violates due process; (2) that he was denied due process at the transfer hearing on the issue of custodial psychotherapeutic treatment in the Department of Mental Health as an alternative to prosecution; (3) that the trial court erred in barring evidence that defendant had a distinctive scar that was not mentioned by the complaining witness; (4) that the court erred in permitting the prosecution to use a blackboard to aid the witnesses in illustrating their testimony; (5) that the prosecution's closing argument was improper; (6) that defendant should have been committed to the juvenile rather than adult division of the Department of Corrections; and (7) that defendant was not adequately apprised of the consequences of his election between the old and new sentencing codes.
On August 27, 1976, defendant was arrested for allegedly raping, sexually assaulting, and committing indecent liberties with a child, the 13-year-old victim. At the time of the occurrence defendant was 16 years old. The court held a hearing on the issue of probable cause and on the State's section 2-7 motion (see Ill. Rev. Stat. 1975, ch. 37, par. 702-7(3)) to permit prosecution of defendant under the criminal laws. The court heard testimony by a police investigator that defendant accosted the victim at knife point and forced her through an alley into an abandoned building. He attempted to have intercourse with her and then forced her to undergo anal intercourse. Later that day the victim identified defendant at the police station. The witness also testified that defendant was involved in another incident, the day before the occurrence at bar, in which he knocked a woman to the ground and attempted to drag her into an alley, but the woman broke away. She, too, identified defendant. The court made a finding of probable cause on all counts.
The trial court then called defendant's probation officer, Ernest Jones, to testify. Jones stated that he had a master's degree in counseling psychology based on 60 to 66 hours of psychology courses. He had known defendant for one month. He stated that defendant seemed deeply concerned over the outcome of the delinquency petitions. Defendant came from a good family, was one of nine children, and had been living in Chicago for one year. Defendant was of average intelligence, but his high school records were not available.
Defendant's first involvement with the juvenile court was the filing of two delinquency petitions against him on August 3, 1976. One alleged that defendant had attempted to rape an elderly woman at knife point. (Defendant's conviction arising from this incident was recently affirmed in People v. Hamilton (1979), 78 Ill. App.3d 1031, 398 N.E.2d 33.) The second petition alleged that defendant committed battery by attempting to unzip a woman's slacks and unhook her bra, also at knife point. The court in those proceedings found probable cause but denied the State's section 2-7 motion to transfer. The petitions were placed on the juvenile calendar and defendant was released. Eight days later defendant allegedly committed the instant offenses.
Jones testified that it had been his recommendation at the last hearing, and still was his recommendation, that defendant not be transferred to the criminal court. Instead, he urged that defendant be referred to the Department of Mental Health "[b]ecause I believe that the Minor Respondent has not had the full facility of the Juvenile Court. The Juvenile Court has done nothing." Jones said he did "not believe that the adult jurisdiction would do anything for the Minor," and that defendant "should be kept in the jurisdiction of the Department of Corrections, Juvenile Division." He then opined that the court had the authority to commit a minor to the Department of Mental Health. Jones was not familiar with the facilities of the Department of Corrections available to a minor committed from the criminal court, nor was he aware that the facilities were the same as those available to a minor committed from juvenile court, nor that the Department of Corrections could make a referral to the Department of Mental Health from either the juvenile or adult court. He stated that his opinion would not change even if the Department of Corrections could refer a case to the Department of Mental Health after commitment by the adult court.
Probation Officer Jones further testified that, assuming the petitions before the court were true, defendant was a dangerous person, and rehabilitation might or might not be long-term. He felt defendant could be rehabilitated in the juvenile division of the Department of Corrections, and parole or supervision would depend on what happened during the period of incarceration. He did not believe it would be in the best interest of defendant or society to place defendant on probation, and he did not feel the UDIS (United Delinquency Intervention Service) program would be beneficial. When asked if some type of incarceration was needed in any event, he said, "I didn't say incarceration. I said Department of Mental Health * * * a therapeutic setting." He believed that the Department had various degrees of security available, minimum to maximum, and he had one juvenile who had been committed to the Department of Mental Health. Jones stated that he would prefer the Department of Mental Health, rather than the juvenile division of the Department of Corrections, because defendant was in need of psychiatric help. He testified that he was familiar with a report by Dr. Cohen dated August 5, 1976, approximately 5 weeks before the instant proceeding. Dr. Cohen also felt defendant needed psychiatric help.
The witness testified that a transfer to the adult jurisdiction would not be beneficial to defendant, but he could not say it would be harmful because he was only familiar with the juvenile and not the adult division. He believed defendant could possibly be rehabilitated within 5 years, and therefore while still within the jurisdiction of the juvenile court. If defendant was committed to the juvenile division of the Department of Corrections, he would need therapeutic help immediately. He did not suspect that defendant needed psychological help when he had earlier recommended his release from custody. When asked if he was aware of anything unique to the juvenile court system and not available to the adult court system, the witness stated that he could not make a comparison because he did not know what was available in the adult system.
The court then asked Jones about Dr. Cohen's report, noting that a therapeutic approach was recommended but that it was ambiguous whether the doctor meant simply that defendant was dangerous or that he did things unknowingly. After remarking that he did not know what the doctor meant, the court stated, "This is the first time I recall that a situation like this has come up." The court elicited that Dr. Cohen was not aware of the offenses before the court at the instant transfer hearing, and stated that the report was incomplete.
The court then heard argument, the prosecutor contending that the court did not have the power to commit defendant to the Department of Mental Health. The public defender said he did not know if the court could make such a transfer, and argued that Jones's testimony indicated he preferred that defendant be committed to the juvenile division of the Department of Corrections over the adult division. The court then stated that it "is constrained to do anything but [sic] sustain each of the State's motions to transfer this Minor for prosecution under the adult criminal laws."
At trial, the court sustained a motion for a directed verdict as to the indecent liberties count, and the jury returned a verdict finding defendant guilty of deviate sexual assault and attempted rape. The testimony and events at trial will be discussed as pertinent to the issues raised on appeal.
1 Defendant first contends that his transfer from the juvenile court to the adult criminal court under section 2-7(3) of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 702-7(3)), was unconstitutional because the statute violates due process. Section 2-7(3) provides in pertinent part:
"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 ...