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People v. Newell

OPINION FILED JULY 25, 1985.

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

v.

STEVEN NEWELL ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Theodore Swain, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 28, 1985.

Defendants, Steven Newell and Lewis Jackson, were convicted of murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1) and (a)(2)) following a bench trial in the circuit court of Cook County. On appeal, Jackson, 15 years old at the time of the offense, contends that the juvenile court abused its discretion by transferring him to the adult criminal court. Both Jackson and Newell contend that the trial court abused its discretion by (1) allowing their attorneys to represent them jointly, depriving them of their right to effective assistance of counsel; (2) refusing to admit as evidence testimony that someone else committed the offense; and (3) admitting as evidence at trial statements of the victim under the dying declaration exception to the rule against hearsay.

We affirm.

Eric Hunter was fatally shot on July 15, 1982, at approximately 9 p.m., in Trumbull Park, 2400 East 105th Street, in Chicago. No one disputes that two offenders participated in the shooting, one individual committing the crime at the behest of the other.

Chicago police officers arrested defendants as suspects in the crime on the following day, July 16, 1982. Following a hearing on September 29, 1982, a judge of the juvenile court granted the State's motion to transfer Jackson to the criminal court to be tried, along with Newell, as an adult.

The trial began January 12, 1983. The record shows that the State presented four witnesses who identified defendants as the persons who participated in the shooting. Some of the witnesses identified Jackson as "K.K." and Newell as "Face." The witnesses, Ella Daniels, Anthony Herring, Michael Jackson, and Treandus Hunter, were all at Trumbull Park on July 15, 1982, at about 9 p.m.

The testimony of the State's witnesses is summarized here. Defendants first approached Ella Daniels, Daniels' sister, Eric Hunter, and Anthony Herring in Trumbull Park, at approximately 7 p.m. Defendant Jackson spoke briefly with them, then walked away with Newell. At about 9 p.m., defendants returned to the park. Daniels was with Eric and his brothers Treandus and Luther, Michael Jackson, and several others. Defendants approached the Hunter brothers, made gang identification signs, and spoke briefly with them.

The defendants then ran into the park, with Eric and Michael in pursuit. Defendants halted in the middle of the park, where defendant Jackson produced a pistol and fired once in the air. Defendant Newell then said, "Why are you shooting in the air? Shoot one of [them]." Defendant Jackson pointed the pistol at Michael. Newell then said, "No, not him, shoot that punk." Defendant Jackson then fell to his knees, shot Eric Hunter in the back as Eric and Michael fled, then ran from the scene with Newell. All four witnesses identified defendants in police lineups on the following night.

Defendant Jackson testified that he was in the park at the time of the shooting, but he did not participate in the offense. Some defense witnesses testified that defendant Jackson did not have the nickname "K.K.," and other defense witnesses testified further that another person, Kevin Thomas, was known as "Face" or "K.K." Newell presented several witnesses whose testimony accounted for his whereabouts from approximately 5 p.m. to midnight on the night of the shooting. Both the State and the defendants claimed that the testimony of the opposing side was conflicting and incredible.

On January 25, 1983, the trial court found defendants guilty of murder. At the end of a sentencing hearing on February 16, 1983, the court sentenced Jackson to a prison term of 20 years and Newell to a prison term of 25 years. Defendants appeal.

I

• 1 Defendant Jackson contends that the trial court abused its discretion by transferring him from juvenile court to criminal court. Fifteen years old at the time of the offense, Jackson was subject to the jurisdiction of the juvenile court. (Ill. Rev. Stat. 1981, ch. 37, par. 702-2.) The State petitioned the court to transfer Jackson to criminal court for trial as an adult. The record shows that a probation officer opposed the transfer at a hearing on the petition and that this was Jackson's first offense. The court, after reviewing the evidence in light of the factors set forth in section 2-7 of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 702-7(3)), ordered Jackson to be transferred to criminal court.

Jackson claims that the evidence presented at the transfer hearing was insufficient to support the transfer order. He argues that a transfer decision is generally based on both the commission of a serious offense and a serious felony record. He relies on People v. Liggett (1980), 90 Ill. App.3d 663, 413 N.E.2d 534, People v. Baxtrom (1980), 81 Ill. App.3d 653, 402 N.E.2d 327, and People v. DeVore (1978), 62 Ill. App.3d 412, 378 N.E.2d 1302, where the court upheld transfer orders involving serious offenses by juveniles with serious felony records.

Section 2-7 of the Juvenile Court Act (Act) provides:

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

Under the statute, the State need only present sufficient evidence to persuade the juvenile court, in the sound exercise of its discretion, that transfer is warranted in light of the statutorily prescribed criteria. (People v. Taylor (1979), 76 Ill.2d 289, 303-04, 391 N.E.2d 366, 372.) There is no constitutional requirement that the Act prescribe a precise mathematical formula to govern the judge's discretion. (76 Ill.2d 289, 305.) No single criterion is all determinative, and the application of each need not be of equal weight. (People v. Cater (1979), 78 Ill. App.3d 983, 988, 398 N.E.2d 28, 32.) The role of this court is to determine whether, in light of the statutory criteria, the judge of the juvenile court abused his discretion. Although the judge of the juvenile court need not make a formal statement of reasons or conventional findings of fact, he or she must preserve a sufficiently explicit record so that we can meaningfully review his or her exercise of discretion. People v. Taylor (1979), 76 Ill.2d 289, 300-01.

Applying these principles to the case at bar, we hold that the juvenile court did not abuse its discretion by transferring Jackson to criminal court. The record shows that the judge of the juvenile court explicitly reviewed the evidence before him in light of the ...


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