APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
527 N.E.2d 436, 173 Ill. App. 3d 153, 122 Ill. Dec. 938 1988.IL.1079
Appeal from the Circuit Court of Cook County; the Hon. Gino L. DiVito, Judge, presiding.
JUSTICE RIZZI delivered the opinion of the court. WHITE, P.J., and McNAMARA, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI
Following a jury trial, defendants, Dave Brooks and Harlan Hayes, were convicted of armed robbery on a theory of accountability. Defendant Hayes was sentenced to a term of six years' imprisonment in the Illinois Department of Corrections. Defendant Brooks, a juvenile, was assigned to the Illinois Juvenile Detention Center for a period of six years. This appeal followed.
On appeal, both defendants essentially argue that (1) the trial court committed reversible error in refusing to question on voir dire the jurors' attitudes regarding defendants' burdens of proof and the fact that defendants' failure to testify cannot be held against them; (2) the trial court erred in denying defendants' motion for a mistrial; (3) defendants were denied a fair trial on the basis of references to the investigation of the armed robbery being conducted by the gang crimes unit of the Chicago police department; and (4) defendants were denied a fair trial as a result of the trial court's improper response to a question posed by the jury while impaneled. Defendant Brooks individually argues that (1) he was improperly tried as an adult pursuant to the automatic juvenile transfer statute (Ill. Rev. Stat. 1985, ch. 37, par. 702-7(6)), and (2) the automatic juvenile transfer statute violates equal protection and substantive and procedural due process. We reverse and remand.
On August 28, 1983, the victim, John Guilfoyle, was robbed after driving a woman known as Ms. Thomas to her home at 6729 South Ada Street. According to Thomas, a prostitute, she knew the victim from previous encounters. Based on information supplied to the Chicago police, defendants were subsequently arrested on September 8, 1983. Mac, who was identified as a suspect, was never located. Thereafter, both defendants gave substantially the same statements confirming their presence and participation in the robbery of the victim.
Initially, our review of the record indicates that on the night in question, the victim picked up Thomas and arranged to have sexual intercourse with her. The victim then drove Thomas to her home so that she could change her clothes. The victim waited in his car while Thomas changed.
According to defendant Brooks' statement, on the evening in question, he was sitting on Richard Sims' porch with Sims and defendant Hayes when a car driven by a white male parked across the street. Thereafter, Thomas got out of the car and walked into her house. Then a "guy named Mac" approached defendants and asked them what the victim was doing in their "hood." Mac then indicated that he was going to get a gun so that he and defendants could rob the victim. A few minutes later, Mac returned to the porch with a gun. Defendant Brooks then walked to the rear of Thomas' house. As Thomas was exiting the house, defendant Brooks told Thomas that he, Mac and defendant Hayes were going to rob the victim. Defendant Brooks then informed Thomas that he would take her out of the area so that it would not appear Thomas had arranged the robbery.
Shortly thereafter, Mac pulled the victim from his car, pointed the gun in the victim's face, and began yelling at him. Defendant Hayes then entered the victim's car and drove it around the corner into an alley while Mac took the victim to a vacant lot. Once in the vacant lot, Mac called defendant Brooks to come and pat down the victim for weapons. Brooks patted down the victim but did not find any weapons. Upon hearing sirens, Brooks ran away. Brooks further indicated that the gun Mac was carrying looked like a .45 caliber handgun but that it was not. Following defendant Brooks' confession, his statement was reduced to writing by an assistant State's Attorney.
Defendant Hayes' confession is substantially the same as the statement given by defendant Brooks. However, defendant Hayes' statement additionally indicated that (1) the gun in question was black, (2) when he drove the victim's car into the alley, Sims ran up, got in the car, and (3) Hayes then drove the car down the street a block or two and parked in an alley. Defendant Hayes also heard sirens, at which point he jumped from the car and ran. Following his confession, defendant Hayes' statement was also reduced to writing by an assistant State's Attorney.
At trial, Thomas testified for the State as an eyewitness to the robbery. Thomas stated that she was a prostitute and had a drug problem. Thomas' testimony was nearly identical to the facts set forth in defendants' confessions. Thomas further ...