APPEAL from the Circuit Court of Peoria County; the Hon.
CALVIN R. STONE, Judge, presiding.
MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
On September 7, 1979, a two-count delinquency petition was filed in the circuit court of Peoria County alleging that the minor defendant, Montgomery Todd Reese, committed the murder of Paul Brown, a security guard at the Willow Knolls Country Club in Peoria. Subsequently, the Peoria County State's Attorney moved to transfer the defendant from the jurisdiction of the juvenile court for the purposes of prosecuting Reese as an adult (Ill. Rev. Stat. 1979, ch. 37, par. 702-7). Following a transfer hearing, the State's motion was granted, and the defendant was indicted for murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(a)(3)), and armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)). On December 10, 1979, the defendant pleaded guilty to the felony murder charge. The remaining two counts of the indictment were dismissed on the State's motion. After a sentencing hearing, the circuit court sentenced the defendant to the Department of Corrections for a term of 25 years. The defendant now appeals from his conviction.
Very recently, this court affirmed the conviction of Reese's co-defendant, Jerry Richard Miller (People v. Miller (1980), 89 Ill. App.3d 973, 412 N.E.2d 175). Because our opinion in that case contains a comprehensive recitation of the facts, we see no reason to repeat them in their entirety here. We will, however, include the relevant facts as they bear upon our disposition of the various issues raised on appeal here.
The first issue raised by the defendant concerns the propriety of the circuit court's decision to allow Peoria County sheriff's detective Kim Sylvester to relate at the transfer hearing co-defendant Miller's statements regarding Reese's participation in the armed robbery and murder of Brown. The substance of Miller's statements are as follows: At approximately 9 p.m., on August 29, 1979, Miller and Reese were sitting at the entrance of the Willow Knolls Country Club waiting for a ride. Neither Reese nor Miller had a car. A short time later a friend of Reese's came by and offered to give the two a ride. Reese and Miller got in, and after some discussion Reese suggested "that they should rip off a car and then go rip somebody off." The driver told Reese and Miller that he didn't want any part of that, and left the two off. Miller and Reese then walked to some apartments located on Terra Vista, where they separated because Reese had to report back to his parents. However, Reese told Miller he could get out later, and told him to meet him (Reese) later at the Woodland Baptist Church.
Subsequently, Reese and Miller met by the church, and went to a man's house to inquire about a car located in front that was for sale. While Reese, Miller, and the owner of the car were discussing a possible sale, Reese accidentally dropped a knife he was carrying. They did not purchase the car. Miller stated to Detective Sylvester that their original intention had been to steal the car, but they changed their minds.
After the discussion with the owner of the car, Reese left Miller for a period of time and returned driving a white Corvette. Miller rejoined him, and after picking up Debra Rogers the three drove around drinking beer and smoking marijuana. While they were driving, Miller told Reese that he wanted to go to the country club to see Brown. Although they did not intend to rob Brown at this time, the two had, according to Miller, discussed robbery throughout the evening.
After parking the car in the country club's parking lot, Reese reached under the floor mat and took out a .22-caliber pistol, which he then placed in his waistband. Brown met Reese and Miller by the door of the office, and after a short conversation told the two that he was going to call his wife and that they should come in. At this time Reese told Miller to step back, and shot Brown once. Brown, however, was still on his feet and proceeded down a hallway. Reese then shot Brown again.
Following the shooting, Reese and Miller went to the concession area. There they broke a window to obtain entry to the canteen, where a safe was located. Miller and Reese took the safe, brought it outside and placed it in the car. Before leaving, Reese turned over some pinball machines.
Miller also stated that in addition to the .22 pistol that was used to kill Brown, a buck knife which belonged to him (Miller) was also used. Miller told Sylvester that Reese carried the knife all night. However, he did not see Reese stab Brown. It should be noted that Peoria County Detective David Owen testified at the transfer hearing that Reese told him that it was Miller who shot and stabbed Brown.
The defendant takes the position that Sylvester's testimony regarding Miller's statements inculpating the defendant in the crime constitutes unreliable hearsay, and as such should not have been allowed into evidence at Reese's transfer hearing. The State responds by arguing that these statements are not hearsay, or in the alternative, that the relaxed rules of evidence applicable to juvenile transfer proceedings permit Sylvester's testimony regarding Miller's statements.
The threshold question is, obviously, whether Sylvester's testimony constitutes hearsay. Hearsay has been defined as "testimony in court * * * of a statement made out of court, such statement being offered as an assertion to show the truth of the matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter." (People v. Carpenter (1963), 28 Ill.2d 116, 121, 190 N.E.2d 738, 741. Accord, E. Cleary & M. Graham, Handbook of Illinois Evidence § 801.1 (3d ed. 1979); McCormick, Handbook of the Law of Evidence § 246 (2d ed. 1972)). The State contends that Sylvester's testimony regarding Miller's statements were not hearsay because they were not offered to prove the matters asserted therein as true but rather offered to show (1) the aggressive and premeditated manner in which the crime was committed and (2) the previous history of the defendant, both of which are factors to be weighed by the court in deciding whether to grant the State's transfer motion (Ill. Rev. Stat. 1979, ch. 37, par. 702-7(3)(a)). Although this may have been the ultimate purpose for which Miller's statements were offered, that purpose cannot be achieved unless those statements were offered with the underlying presumption of truth. In other words, before the court can consider Miller's version of the events of August 29, 1979, in light of the various factors contained in section 2-7(3)(a) of the Juvenile Court Act it must initially accept his story as true. Consequently, Miller's statements necessarily had to be offered for the initial purpose of proving the truth of the matters asserted therein, i.e., the manner in which the crime was committed and the defendant's previous history. This being the case, Detective Sylvester's testimony relating those statements constituted hearsay.
However, even though Detective Sylvester's testimony regarding Miller's statements was hearsay, given the relaxed rules of evidence applicable to juvenile transfer hearings, we do not think the circuit court erred in allowing those statements into evidence. In People v. Taylor (1979), 76 Ill.2d 289, 391 N.E.2d 366, the Illinois Supreme Court emphasized that the juvenile transfer hearing is not adjudicatory in nature but is dispositional. The defendant's guilt or innocence is not decided at such a hearing, but rather to be decided is the forum in which the defendant's guilt or innocence is to be determined. "The transfer hearing not being adjudicatory, the procedural safeguards required at criminal trials and adjudications of delinquency are not mandated by due process." (Taylor, 76 Ill.2d 289, 303, 391 N.E.2d 366, 372. See Ill. Rev. Stat. 1979, ch. 37, pars. 702-7(3)(a), 705-1.) It is due process and fundamental fairness, then, that govern the juvenile transfer procedure. Taylor.
In People v. Hamilton (1980), 80 Ill. App.3d 794, 400 N.E.2d 599, the defendant argued, as does the defendant Reese here, that hearsay evidence should not have been used at the juvenile transfer hearing to establish that the offense was committed in an aggressive and premeditated manner. Quoting with approval from Taylor, in which the supreme court stated that "[t]he use of documentary or testimonial evidence of a reliable nature, even though hearsay, constitutes a much less time-consuming method of proof very nearly essential to this type of hearing [and] [i]ts use in that context is not, in our judgment, constitutionally impermissible" (76 Ill.2d 289, 305, 391 N.E.2d 366, 373), the Hamilton court stated "[r]eliable hearsay evidence is accordingly admissible to establish the nature of the alleged offense, as it is to establish the other statutory factors." 80 Ill. App.3d 794, 800, 400 N.E.2d 599, 604; accord, People v. Diaz (1979), 75 Ill. App.3d 387, 394 N.E.2d 465.
• 1 The defendant contends that Miller's statements, as those of a co-defendant, are inherently unreliable, and the due process and fundamental fairness constraints of juvenile transfer hearings preclude their consideration by the circuit court (see Bruton v. United States (1968), 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620 (White, J., dissenting)). Although statements of accomplices such as Miller are to be viewed with circumspection (People v. Sherman (1980), 87 Ill. App.3d 937, 940, 409 N.E.2d 486), it is well settled that the uncorroborated testimony of an accomplice is sufficient to support a criminal conviction (People v. Kiel (1979), 75 Ill. App.3d 1030, 394 N.E.2d 883). If the due process guarantees of the constitution do not bar the conviction of a defendant based ...