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People v. M.d.

OPINION FILED JANUARY 20, 1984.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,

v.

M.D., A MINOR, APPELLEE.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Jose Vasquez, Judge, presiding.

JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 30, 1984.

In this case, the State appeals from the trial court's denial, and the appellate court's affirmance of the denial, of the State's motion to permit prosecution of the minor respondent, M.D., as an adult under the criminal laws of Illinois instead of under the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 701 et seq.). A divided appellate court affirmed the judgment of the circuit court of Cook County (109 Ill. App.3d 790), and we granted the State's petition for leave to appeal (87 Ill.2d R. 315(a)).

Section 2-7(3) of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 702-7(3)) provides:

"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." Ill. Rev. Stat. 1981, ch. 37, par. 702-7(3).

In the instant case, the trial judge denied the State's petition requesting that the minor be tried as an adult, and the appellate court affirmed, holding that the trial judge had not abused his discretion by denying the State's motion. It is from this judgment that the State appeals.

The sole issue before this court is whether the trial judge abused his discretion by denying the State's motion to permit the prosecution of the respondent as an adult. We find that the trial judge did abuse his discretion, and we reverse the judgments of both the circuit and appellate courts>.

A petition for adjudication of wardship was filed in the circuit court on January 28, 1981, alleging that respondent was delinquent in that on January 26, 1981, he allegedly committed murder by shooting and killing two individuals, Gregory and Vincent Jackson.

During the transfer hearing, Officer Ralph Vucko testified regarding a statement the respondent had made to him the night of the shootings. Respondent told Vucko the following. On January 26, 1981, at about 6:30 p.m., respondent allegedly went to the home of Izear Sewell, also known as "Tookie." Respondent alleged that his purpose in going to see Sewell was to ask Sewell for help because he had been hit across the face with a pistol by Gregory Jackson one week before. It appears that respondent went to Sewell's house armed with a gun and looking for, as he put it, "revenge." Sewell, according to respondent, agreed to help respondent and stated that they should "gun up." Sewell evidently had a gun on his person because respondent said that they both left without going into Sewell's house.

Respondent and Sewell then walked to a laundromat where they found Gregory Jackson. Respondent urged Sewell to "talk to the dude, he jumped on me a couple of times, man." Apparently, Sewell was telling Gregory Jackson to leave the respondent alone when, according to respondent, Gregory took a stick out of a garbage can and began walking towards Sewell and respondent. Vucko interviewed three eyewitnesses, none of whom saw the stick Gregory Jackson was alleged to have had. Gregory allegedly called Sewell a "punk." Sewell shot Gregory, and respondent allegedly shot at Gregory, missing him. Respondent alleges that Vincent Jackson, Gregory's brother, also came towards them, and respondent stated that he shot Vincent four times. Sewell and respondent then ran to a nearby apartment where they hid the guns they had used on a shelf.

Vucko testified that the respondent did have scabs and marks on his face when he gave his statement and that respondent told him that they were the result of being hit in the face with a gun by Gregory Jackson a week earlier. Vucko testified that respondent also told him that the Jackson brothers were members of a gang called the "Q-Dogs," a subgroup of a gang called the "Vice Lords." According to Vucko, respondent told him that "he was not in a gang but he was harassed." Vucko testified that he had not heard of the "Q-Dogs," but that he was not assigned to the gang crimes unit of the police department and consequently was not familiar with all the names of the gangs in the district.

An investigator with the office of the public defender, Jeffrey Greenfield, also testified at the transfer hearing. Greenfield had interviewed a friend of the respondent's, Bernard Strowder. Strowder was alleged to have told Greenfield the following. Strowder had known respondent three or four years and the Jackson brothers for about two years. The Jacksons were, Strowder alleged, members of the "Q-Dogs," which was a subgroup of the "Vice Lords." On one occasion Gregory Jackson and another boy allegedly forced respondent and Strowder to give them money at gunpoint. On another occasion, Gregory Jackson was alleged to have hit the respondent with a stick, telling him "you owe me." Strowder also told Greenfield that there was an occasion where respondent had been pistol-whipped by Gregory and that Gregory and Vincent Jackson had pushed respondent off of his bike and struck him on another occasion. Greenfield testified that he had heard of the gang called the "Q-Dogs."

Respondent's mother testified at the probable cause hearing before the judge that was presiding at the transfer hearing. She testified that on January 24, 1981, respondent and her nephew told her that Gregory Jackson and another boy had just threatened respondent with a gun. It appears that a microwave oven which was stolen from a railroad car was the subject of the dispute. Gregory Jackson wanted the oven, which he apparently believed the respondent had in his possession. Whether the dispute over the microwave was the actual reason for the alleged pistol-whipping on January 24, 1981, is unclear from the record.

In any event, the respondent's mother testified that the respondent had come upstairs to their apartment missing a shoe and that he and her nephew told her that Gregory Jackson had threatened the respondent with a gun. The mother also stated that she had sent the respondent to the store the morning after the incident and he had returned with his eye and face swollen. Respondent told his mother, according to her, that Gregory Jackson had beaten him up. Respondent's mother called the police, and a tape recording verifying her call was presented to the judge. The mother testified that after she called the police they never came and she did not bother to call them again.

Three reports were made in connection with this case — a social investigation report prepared by the respondent's probation officer, a psychological report, and a psychiatric report.

Vergus Hurks, respondent's probation officer, had prepared the social investigation report regarding the respondent, and he testified at the transfer hearing as to his findings. Hurks related the following. Respondent was born on July 11, 1965, and was 15 1/2 at the time of the hearing. Respondent lived at home with his mother and nine brothers and sisters in a public housing project, and his mother was receiving assistance from the Illinois Department of Public Aid. According to Hurks' report, the mother felt that the respondent's peer group associates were a negative influence in his life, resulting in his delinquency and truancy. The mother told Hurks that she had separated from the respondent's father in 1977 and that there was no male role model for the boy in their home. (There was conflicting evidence in the record as to whether respondent's stepfather was living in respondent's home. This particular point will be discussed later in this opinion.)

Hurks came in contact with the respondent when respondent was placed on probation for one year because of a finding of delinquency based on his commission of a burglary. Hurks testified that the probationary period was satisfactorily terminated on January 20, 1981. Hurks also testified that respondent had eight prior "station adjustments" dating from August of 1979 to October of 1980. Three of these "station adjustments" occurred during respondent's probationary period. "Station adjustments" involve situations where the police, after taking the juvenile to the police station, decide that the juvenile will not be prosecuted. Hurks testified that two of the respondent's station adjustments were for burglary, one for battery, three for theft, one for possession of stolen property, and one for attempted theft. Station adjustments have been held to be "probative and relevant because they enable the trial court to determine the proper disposition." In re McClinton (1978), 63 Ill. App.3d 956, 959.

During his testimony, Hurks explained, "The mother cannot do anything with him. She cannot make him go to school, and that has been one of our biggest problems. I referred the case to the Garfield Park Comprehensive Health Center. They have been working with him approximately six to eight months. He lost interest in that agency and failed to keep his appointment with that agency." Since the respondent had been placed in the Audy Home for the murder of the Jackson brothers, Hurks had reports on his school performance. Respondent had failed almost all of his courses. One report Hurks read stated that respondent "refuse[d] to do any work, and he frequently spen[t] his time disrupting others by talking to them." Hurks testified that he had not found the respondent to show any remorse in regard to the murders or any of the other crimes he had committed. Hurks characterized the respondent as a shy, passive person and a follower. He also testified that he believed that the respondent had rehabilitative potential and could benefit from the programs the juvenile division of the Department of Corrections had which rewarded juveniles if they cooperated and followed the rules and regulations. He also believed that the respondent could benefit from the school programs at the juvenile division of the Department of Corrections. Hurks conceded that the respondent would go to the juvenile division and receive the benefit of the juvenile educational facilities up until his 21st birthday, even if he was tried as an adult.

Kimberly Merrill, a court psychologist who examined and tested the respondent, prepared a second report concerning the respondent. In her report, Merrill stated that the respondent scored in the mentally deficient range on the tests which she administered. She reported that the respondent, although 15, was only in the eighth grade, that his performance in school was poor, and that his attendance record revealed chronic truancy. Merrill indicated in her report that the test scores which placed the respondent in the mentally deficient range should be interpreted with caution. The reason she believed the scores should be interpreted with caution was because the respondent's situation, being charged with two murders, was causing him some anxiety which she felt could alter his performance. Merrill described the respondent as "an extremely immature, even primitive, youngster who [was] decompensating under the stress of being in detention for murder." She also described him as being "a young man whose ego development never progressed past an early stage." She noted that his "sexual identity [was] very tenuous" and that he "sought to confirm his masculine identity through association with older boys and the use of weapons." According to her report, the data indicated "underlying anger, considerable impulsivity and an almost childish fascination with violence and instruments of violence." Merrill concluded her report by stating: "[Respondent] is dangerous, but he is not a hardened delinquent. He has reached the age of fifteen without acquiring appreciable socialization. He needs structure, limits and firm moral instruction. Long term residential placement is recommended, and [respondent] needs to understand that he can expect punishment for wrong doing. It should be emphasized that the moral environment provided by this placement will play a critical role in the development of [respondent's] emerging personality."

The last report received by the court was authored by Dr. Jaime Trujillo, a psychiatrist. Trujillo interviewed the respondent in the Detention Home. He described the respondent as coming to the interview "in a happy mood with a special gait, moving around in a very tough way." In this report, Trujillo noted that when he asked the respondent why he was in the Detention Home that "[respondent] said in a proud voice that it was on a count of murder." According to Trujillo, respondent said that he was raised "pretty much being allowed to do whatever he please[d]" but "[o]n occasions * * * [his] mother ha[d] interfered with that." The respondent told Trujillo that his stepfather also interfered on occasion. Trujillo believed that the respondent's stepfather was the ...


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