APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
M. FIALA, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was convicted of murder and sentenced to a term of imprisonment of 14 to 20 years. On appeal, he argues that (1) statements allegedly made by him were obtained from him in violation of his fourth, fifth and sixth amendment rights; (2) the court erred in denying a motion for a mistrial after prosecutorial comments; (3) the court abused its discretion in refusing to fulfill a jury request for transcripts; (4) the court erred in refusing to give a jury instruction; and (5) the juvenile court erred in waiving its jurisdiction over defendant. We affirm. The pertinent facts follow.
At the hearing on the State's motion to permit prosecution of defendant because of his age under the criminal laws, Officer Donald Janke testified that at approximately 7 a.m. on November 7, 1977, he proceeded to Madison School where he spoke with the custodian. He was directed to the place where the custodian discovered the body of Andrea Sax. He observed the body in the bushes but did not see any signs of a struggle, or blood in the vicinity.
Officer John Ryan testified that when he arrived at the scene he observed the body lying near some bushes. On the south side of the building, the officers found tire tracks, a knife, a purse and several personal belongings of the victim.
At 7 p.m. on November 7, 1977, he was present in the police station when defendant was being fingerprinted. He did not say anything to defendant but defendant said to him: "What would you do with a kid that's as f____d up as me?" He later overheard defendant tell the officer who was fingerprinting him that she was evil and that someone had to do it.
Dr. Robert Stein testified that he performed an autopsy on the body of Andrea Sax on November 7, 1977. The cause of death was stab wounds to the neck and chest with perforation and laceration of the carotid artery and the aorta. He found 24 incised wounds on the head, neck, shoulder, chest and back, of which he identified 6 as stab wounds.
Officer William Zerfass testified that he is a juvenile officer with the Skokie Police Department. On November 7, 1977 he first went to the scene where the body was found and then to the area where the victim's car was located. Several police officers and four young people, whom he identified as Laura King, David Gerber, Julie Derichs and defendant were present. These young people accompanied him to the police station, where he spoke with them individually.
King told Zerfass that on the morning of November 7, 1977, she was late for school because defendant failed to appear at the place where they normally met to walk to school. She walked to defendant's house and they walked to school. On the way, he pointed out a car belonging to Andrea. At school, she, defendant, Derichs and Gerber met in the cafeteria and discussed the disappearance of Andrea, whereupon defendant commented that he thought that he had observed her car parked on a side street enroute to school. They encountered a police car after leaving the school and directed the officer to where the police found Andrea's car.
Zerfass interviewed defendant, who told him that the last time he saw Andrea was on November 6, 1977, as he and Tony Genc were riding their bicycles. They conversed with Andrea in front of her house and then the three of them decided to go for a ride in Andrea's car. They drove around for an hour and returned to Andrea's house, where he and Tony picked up their bicycles and departed.
At 9 p.m. that evening, defendant received a telephone call from Andrea. She was upset and wanted to come and speak with him. When she did not appear, he telephoned Mrs. Sax at 10 or 10:15 p.m. and told her that Andrea never showed up. He made another telephone call and then left to meet Tony Genc.
Officer Zerfass noticed blood stains on defendant's pants. Defendant stated that the pants belonged to David King and he agreed to turn them over to the police.
Ramazon "Tony" Genc was brought to the station and interviewed by Detective Dennis Degelmann, who informed Zerfass of the contents of their conversation. Genc denied being with defendant or Andrea on November 6, 1977, and claimed that he had spent the evening with Howard Getner from 6:30 to 11 p.m. He further denied knowing defendant and claimed that he had been staying in Room 221 of the Holiday Inn. The officers checked the hotel and found that Genc was not staying there, whereupon they brought defendant back to the station to identify Genc.
Genc was interviewed again at 6 p.m. on November 6, 1977, and indicated that he was walking near the "7-11" at Lincoln Avenue and Gross Point when he encountered defendant driving Andrea's car. He got in and defendant told him that he had killed Andrea and offered to show him the body. He declined to go but defendant drove anyway to Madison School and he observed the body lying in some bushes. He indicated that he saw defendant throw the knife away and scatter Andrea's belongings. They drove away and parked the car before returning to defendant's home.
Zerfass said that he and a detective proceeded to defendant's home, where he was arrested in the presence of his parents. He was advised of his rights and his father accompanied him to the station. Defendant and his father indicated that they wanted to speak with their attorney and did not wish to make a statement.
Getner was questioned by the police and indicated that he had met defendant on October 28, 1977, at defendant's home. On that day, he indicated that he was returning from work when they encountered Genc and Edgar Dones. They conversed and Genc went to get something to eat. He and Edgar picked up his car and they went out looking for Genc, where they found him with defendant. Defendant suggested that they all go to his home. They went into the basement of defendant's home, where they found a knife and threw it for awhile before smoking some pot. Getner identified the knife as the one discovered by the police near Madison School.
Zerfass interviewed Dones, who related the same account as Getner. Dones further stated that defendant demonstrated to him how to kill with the knife by grabbing someone by the back of the head and striking the person in a downwardly manner in the head, shoulder and neck. Dones also indicated that defendant mentioned Andrea in the course of the demonstration, but he did not know the context in which it was used. He also indicated that the knife had "Chicago" written on it. Zerfass stated that the knife found near the school had the words "Chicago Cutlery" on it.
Officer Carl Cacioppo testified that he was present at the police station while defendant was being held in a detention room. He entered the room to check on him, whereupon defendant looked up and said, "She got what she deserved." He responded, "Who?" and defendant replied, "You and I both know who." He again asked, "Who?" and defendant said, "Andy, I killed her." Cacioppo informed Zerfass of this statement.
Shirley Sax, Andrea's mother, testified that Andrea received a phone call from defendant around 9 p.m. She told her she was going to visit him and left home around 9:15 p.m. Defendant called the house around 10:15 p.m. that evening and stated that Andrea never showed up at his house. Mrs. Sax asked him to help look for Andrea by tracing the route to his house and to call some of her friends. She called the police around 11 p.m. to report Andrea missing and while she was talking, defendant called on her second telephone line. Her other daughter talked to defendant and later told her that defendant stated that maybe Andrea was "cruising around" and "what's the big deal that she's talking to the police?"
The juvenile court found that there was sufficient evidence upon which a grand jury could return an indictment; the offense was committed in an aggressive and premeditated manner; defendant was 16 years old; the evidence before the court established that there were no facilities particularly available to the juvenile court adequate for the treatment and rehabilitation of defendant; the clinical evaluations of defendant indicated a disposition which made him aggressive and dangerous under certain circumstances and as such, treatment for rehabilitation might require custody or supervision beyond his minority; and that the interests of the minor and the public required transfer for prosecution as an adult.
Defendant began his hearing in the criminal division with a motion to suppress certain statements. Zerfass testified that defendant was advised of his Miranda rights at the time he was arrested and at the station after his arrest. Defendant and his father then indicated that they wished to confer with an attorney. The attorney, Alan Lapping, conferred with his client and advised Zerfass that defendant did not wish to talk with the officers.
Defendant was transported to the juvenile detention center at approximately 11 p.m. on November 7, 1977. Zerfass indicated that he did not direct any questions to defendant; however, defendant did ask if he would be able to get help where he was going and whether he would be able to face reality when he got out. He asked defendant what he was talking about and he responded, "for doing what I did." After a period of silence, defendant stated, "Why did I do it?" Another period of silence ensued and defendant stated, "What I did was wrong." and later stated again, "Why did I do what I did?" Zerfass indicated no further statements were made then before their arrival at the center.
Cacioppo repeated his testimony concerning defendant's admissions while he was held in the detention room at the station.
Sergeant Gary Reiter testified that as he escorted defendant to the washroom, he asked, "What is going to happen to me?" He responded, "We'll try to get you some help," and defendant answered, "I'm sick, I need help." Reiter was aware that defendant's attorney did not want him questioned.
Officer Robert Mason testified that after he fingerprinted defendant, he stated in the presence of two other officers, "What do you do with a kid like me? I'm really f____d up." While he fingerprinted defendant a second time, he asked him why he did it, to which defendant responded, "Someone had to do it." After a period of silence, defendant stated, "She was evil. She messed up a lot of lives. Now that I have straightened her out, who is going to straighten me out?" Mason indicated that at the time he fingerprinted defendant he did not have knowledge of any facts relating to this case; all he knew was that defendant was a suspect in a murder investigation.
Det. Degelmann testified that he interviewed four persons, including the defendant, who had come forward with information relating to the murder of Andrea Sax. After he interviewed Genc, he stepped out of a room and observed defendant standing in the hallway of the police station. He did not say anything to him, but defendant asked him, "What do you do with a guy like me, a guy who has killed someone?" He did not respond.
The court sustained the motion in part and denied it in part, finding that defendant was given Miranda rights at the time of his arrest at his home and indicated he understood these rights; he was also given his rights at the station; and he had the benefit of having his father and later his attorney present at the station. As such, statements given prior to his arrest were voluntary and had been initiated by him appearing to be a citizen furnishing information to a police officer. The statement to Cacioppo, "She got what she deserved," was voluntary and initiated by defendant and thus admissible. All statements which followed Cacioppo's response were suppressed. The statements to Reiter were voluntary and initiated by defendant; the statement, "What do you do with a kid like me? I'm really f____d up" was an admissible voluntary statement; the statement made to Degelmann, "What do you do with a guy like me, who has killed someone," was a voluntary admissible statement; and the statement to Zerfass, "Will I be able to get help where I'm going; When I get out, will I be able to face reality?" was also considered a voluntary statement. All other statements were suppressed.
Defendant also filed a motion to suppress evidence which concerned a letter written by defendant to his girlfriend while in custody at the station which was seized by Zerfass. Zerfass entered the detention room where defendant was being held and observed him writing on a piece of paper that he obtained from his mother. The court denied this motion finding that probable cause to arrest was present. The court also denied his motion to dismiss the indictment.
Officer Steven Anton testified that he collected the physical evidence from the area of the murder. He also noted tire tracks in the shape of a donut.
Officer Steven Neihaus testified he was on patrol at the Niles West High School when he was approached by four youths, one of whom was defendant. Defendant told Neihaus that he believed he saw Andrea's car at an intersection on his way to school. Neihaus stated that defendant also told him that Andrea had called him at 9 o'clock the previous night and indicated that she was upset because she felt responsible for her father's illness and asked if she could come over and talk with him. When Andrea did not arrive, he called the Sax' residence and spoke to her mother. The defendant also stated that Andrea was known to hitchhike. He was directed to the location of the car by defendant and later drove him and the other youths to the station.
Mrs. Sax testified essentially the same as she had at the juvenile ...