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People v. Barefield





APPEAL from the Circuit Court of Will County; the Hon. ANGELO F. PISTILLI, Judge, presiding.


The defendant, Elijah Barefield, appeals from his convictions for armed violence and aggravated kidnapping. He was sentenced to eight years imprisonment for armed violence and four years for aggravated kidnapping, the sentences to run concurrently. He was acquitted of charges of armed robbery and attempted murder.

The defendant was 16 years old when he committed the acts for which he was tried. On June 16, 1978, a supplemental petition to revoke juvenile probation was filed. On June 28, 1978, the State filed a motion to remove from prosecution under the Juvenile Court Act, asking that the defendant be prosecuted as an adult. On that date, the juvenile court judge transferred the matter to the Chief Judge of the Twelfth Circuit for disposition of the motion to transfer. On July 11, 1978, a bill of indictment was returned against the defendant by the Will County grand jury in the adult criminal division, charging the defendant with the four crimes listed above. The four-count indictment was returned by the grand jury before the chief judge, who then set bail and ordered the capias or warrant of arrest to issue. Two days later, on July 13, 1978, the same chief judge held a hearing on the petition to transfer the case of defendant and a juvenile co-defendant, Jerry DeLoach, to the adult criminal division. The judge denied a motion to sever the transfer hearings of the two juveniles. After hearing testimony and argument, the court granted the State's petition to transfer. The defendant was tried as an adult, convicted, and sentenced as indicated.

The defendant's first contention on appeal is that the court erred in transferring him from juvenile to adult court after an indictment had already been issued against him. The State concedes that such a procedure is contrary to law, but argues that the error was harmless and does not warrant reversal of the criminal convictions. Both the defendant and the State rely upon our supreme court's recent decision in People v. Jones (1979), 81 Ill.2d 1, 405 N.E.2d 343. In People v. Jones, the supreme court stated:

"We believe error has been committed by the return of an indictment prior to the circuit court's rendering a decision on the transfer motion, but we do not believe this error is reversible error here. The record unequivocally shows that the circuit court, in the course of its hearing on the motion and on the basis of its specific conclusions, made its findings `independent of' the grand jury's indictment. Moreover, the court specifically applied the six factors set out in section 2-7 [Ill. Rev. Stat. 1973, ch. 37, par. 702-7(3)] * * * The evidence the court had before it at the time of the hearing, the record again unequivocally shows, justified the court's transfer even though subsequent to the indictment. We do not condone this action, but it just is not reversible error here." 81 Ill.2d 1, 6-7, 405 N.E.2d 343.

The transfer hearing involved here is governed by section 2-7 of the Juvenile Court Act (Ill. Rev. Stat. 1977, ch. 37, par. 702-7), which states:

"(3) 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 the motion to permit prosecution under the criminal laws, the court shall consider among other matters: (1) whether there is sufficient evidence upon which a grand jury may be expected to return an indictment; (2) whether there is evidence that the alleged offense was committed in an aggressive and premeditated manner; (3) the age of the minor; (4) the previous history of the minor; (5) whether there are facilities particularly available to the Juvenile Court for the treatment and rehabilitation of the minor; and (6) whether the best interest of the minor and the security of the public may require that the minor continue in custody or under supervision for a period extending beyond his minority."

• 1 At the transfer hearing, no occurrence witnesses testified. However, two investigating officers testified as to statements of the victims and of the persons accused. "The rules of evidence shall be the same as under section 5-1 of this Act * * *." (Ill. Rev. Stat. 1977, ch. 37, par. 702-7(3)(a).) Section 5-1 of the Juvenile Court states,

"[T]he court shall hear evidence on the question of the proper disposition best serving the interests of the minor and the public. All evidence helpful in determining this question, including oral and written reports, may be admitted and may be relied upon to the extent of is probative value, even though not competent for the purposes of the adjudicatory hearing." (Ill. Rev. Stat. 1977, ch. 37, par. 705-1(1).)

"The 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. Its use in that context is not, in our judgment, constitutionally impermissible." People v. Taylor (1979), 76 Ill.2d 289, 305, 391 N.E.2d 366.

The evidence admitted at the transfer hearing tended to show that on the night of June 15, 1978, the defendant was in Chicago, in the company of his cousin, 16-year-old Jerry DeLoach, and a 21-year-old man named Leonard Meyers. They experienced car trouble and began walking down the Stevenson Expressway (I-55). They were offered a ride by two young men, Kevin Jensen and Melvin Schmidt, who were returning to Will County from a White Sox game. The three stated that they wanted a ride to Lockport, but Jensen, the driver, told them that he did not have sufficient gasoline to take them that far. One of the three men suggested that they siphon some gas. The three were admitted into the car and sat in the back seat. They proceeded southwest on I-55 and turned off toward Hinsdale. They stopped and one of the riders siphoned some gas from a parked car. They drove back to the highway and pulled over at the Old Chicago amusement park-shopping center. Jensen told his new passengers that he had to return home and would take them no further. Meyers then pulled a knife and placed it near Schmidt's throat. The defendant held a gun to Jensen's head. Meyers then informed Jensen and Schmidt that he expected to be taken all the way to Lockport. A struggle ensued and Schmidt received a 6-inch cut to the throat. Schmidt was also struck on the head with a pistol. Jensen began driving and continued until the car ran out of gasoline. One of the investigating officers testified that he had witnessed a statement made by the defendant, Barefield, in which the defendant stated that Meyers, when told that they would only be taken as far as Old Chicago, whispered to Barefield that they were going to be taken all the way to "the projects" (in Lockport). Meyers told Barefield that, when the car stopped, he (Meyers) would put a knife to the throat of Schmidt and that Barefield was to hold a gun to the head of the driver. Apparently, Meyers was true to his word and Barefield responded as requested. After Schmidt was cut, DeLoach grabbed the gun away from Barefield and everyone exited the automobile. Meyers then asked for money and Jensen handed him five dollars. DeLoach and the defendant fled on foot in one direction, while Meyers fled in another.

Additional testimony elicited at the hearing revealed that the defendant had a history of unruly behavior. This was attributed to organic brain syndrome, the result of a head injury. The behavioral problems had been effectively controlled by drugs. However, the defendant had stopped taking the medication and had continued getting into trouble at school. He had been committed to the Department of Corrections by the Juvenile Court of Will County on May 26, 1977, subsequent to an adjudication of delinquency on a burglary charge.

• 2 The evidence presented at the transfer hearing supported the conclusion of the court that "the offense was committed in an aggressive and premeditated manner." The court also stated that it "considers the age of the minors, the previous history of the minors, whether there are facilities particularly available to the Juvenile Court for the treatment and rehabilitation of the minors. And the Court also considers that the best interest of the minor and of the public requires the minors to continue in custody or under supervision for a period extended beyond his minority." All of these conclusions were supported by the evidence. No formal statement of the juvenile court judge's reasons for authorizing the transfer is necessary. All that is required is the preservation of a record which will allow a meaningful review of the juvenile court judge's exercise of discretion. (People v. Taylor (1979), 76 Ill.2d 289, 300-01, 391 ...

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