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People v. Green

OPINION FILED JULY 30, 1980.

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

v.

DAVID HOWARD GREEN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Kankakee County; the Hon. JOHN F. MICHELA and the Hon. PATRICK BURNS, Judges, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

On December 29, 1977, a three-count delinquency petition was filed against the defendant, David Howard Green, charging him with two counts of aggravated battery and one count of armed robbery. Subsequently, a petition to transfer the defendant from juvenile court to adult court was filed by the State, and on February 22, 1978, a hearing was held on the petition to transfer.

A juvenile investigation report was prepared for the transfer hearing. The report stated that David Green's age was 16 and that he was born on January 24, 1962. However, at the transfer hearing it was revealed that the minor's correct age was 15, having been born on January 24, 1963.

The juvenile investigation also revealed that the defendant's family consisted of a father who was unemployed due to a heart condition, a mother who was a housewife, and four brothers and sisters who lived at home. The family received public aid and food stamps. The defendant's school record revealed that he had graduated from grammar school but had been suspended by his high school for punching other students and for possessing a pair of brass knuckles. The report also disclosed that the defendant had no prior record of criminal behavior other than a "station adjustment" which was made in January 1977, because he allegedly threatened his father with a butcher knife.

Admitted into evidence at the transfer hearing were statements by the victim, by the defendant Green, and by his co-defendant Ashford.

The statement of the victim, Hezekiah Sims, related that at 9:30 p.m. on August 26, 1977, he got into his truck to go to work. At that time he was approached by Leroy Ashford and David Green. They told Sims that they wished to pick up a car which Sims had for sale. Sims told them to come back in the morning. Ashford then opened the driver's side door of the truck and hit Sims on the head with a jack handle lug wrench. Sims retreated inside the truck. Ashford then took the lug wrench and started beating on the windshield of the truck. While Ashford was beating the windshield with the lug wrench, Sims heard him say, "I'm going to kill you." Realizing that Ashford could get into the truck right through the glass, Sims decided to get out of the truck and attempt to take away the lug wrench. After getting out of the truck, Sims was knocked down from behind. He did not know who pushed him. Sims then heard one of them say, "Let's run over him with the truck." He didn't know which of the two boys made the statement. The next thing Sims could remember was regaining consciousness with the truck on top of him.

According to the defendant's statement, the defendant merely went along with Ashford and took no active part in the attack on Sims. A statement by Ashford, however, portrays the defendant in a far more active role. According to Ashford the defendant participated in the assault on the victim Sims, helped pull him from the truck, and further participated in the act of driving the truck over the victim.

• 1 In granting the transfer petition, the juvenile court judge made the following observations:

"I indicated in conversation — in casual conversation — that the State had two problems in this case. One problem was the fact the minor was only fifteen and the other was there was no prior adjudication in this County. I advised the State's Attorney at this time that I was not pre-judging the case, but merely pointing out the problem. However, the Statute deals with the age of thirteen, which seems to lessen the problem of the age of the boy being fifteen.

The report made by the Probation Officer refers to station-house adjustment, as well as the statement from someone at St. Anne School of occurrences and actions by the minor.

The Court looks at 702-7(3)(a) of the Juvenile Court Act. The Legislature has instructed me to consider among other matters, (1) whether there is sufficient evidence upon which a Grand Jury may be expected to return an Indictment. The Court is satisfied there is sufficient evidence for the Grand Jury to return an Indictment. Never having been on the Grand Jury and not knowing many judges in this State who have — it is an interesting criteria. I would assume the Grand Jury would do it because that jury does what the State's Attorney wants — usually.

(2) Whether there is evidence that the alleged offense was committed in an aggressive and premeditated manner. Mr. Green is not charged with a non-aggressive crime. He is not charged with burglary of a vacant house. He is not charged with criminal damage to property. He is not charged with simple battery where you slap somebody. He is charged with two counts of aggravated battery and one count of armed robbery. Armed robbery is a Class One felony under the Criminal Code of this State, with a mandatory prison term. Aggravated battery is a Class Three felony and carries a one to ten possible. I do not think you can commit either aggravated battery or armed robbery without some kind of aggressive behavior, and arming yourself ahead of time to commit the aggravated battery would indicate some kind of premeditation.

(3) The age of the minor. I am on record in this Court saying age is an absolutely ridiculous criteria. To arbitrarily pick seventeen in this day and age doesn't make any sense. I have considered the age of the minor and I am concerned that the age is only fifteen.

(4) The previous history of the minor. There is no prior adjudication of this boy. There are other things set forth in the Probation Report any one ...


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