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09/07/89 the People of the State of v. Gary Clark

September 7, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GARY CLARK, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

544 N.E.2d 100, 188 Ill. App. 3d 79, 135 Ill. Dec. 743 1989.IL.1395

Appeal from the Circuit Court of Macon County; the Hon. Jerry L. Patton, Judge, presiding.

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. LUND, J., concurs. PRESIDING JUSTICE McCULLOUGH, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

Defendant Gary Clark has appealed judgments of the circuit court of Macon County entered on jury verdicts finding him guilty of two murders, two robberies, home invasion, and aggravated criminal sexual assault and sentencing him on July 21, 1988, to terms of imprisonment for natural life, 4 years, 4 years, 15 years, and 7 years, respectively. The sentences for a definite term of years were ordered to run concurrently with the sentence for natural life and with each other. This appeal comes after the third trial of the case, and after it has been before this court and the supreme court on a prior occasion. For details beyond the summary we present here, we refer readers to People v. Clark (1987), 119 Ill. 2d 1, 518 N.E.2d 138, and People v. Clark (1986), 144 Ill. App. 3d 420, 494 N.E.2d 551.

This litigation began in July 1984, when a petition was filed in the circuit court of Macon County alleging defendant, then 14 years old, was a delinquent minor because of the commission of felony murders of E.C. and P.C. on July 14, 1984. Upon motion of the State, pursuant to section 2-7(3) of the Juvenile Court Act (Ill. Rev. Stat. 1983, ch. 37, par. 702-7(3)), and after a hearing, the circuit court permitted the State to proceed against defendant under the provisions of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 1-1 et seq.). The State then charged defendant with the offenses with which he now stands convicted. At a first trial, the defendant was convicted of robbery and residential burglary but the jury was unable to agree on other charges and was dismissed. A second trial was held in Tazewell County, where the defendant was convicted and given the same sentences as here.

The first appeal was from the convictions imposed after the trial in Tazewell County and the sentences then imposed. The issues on that appeal centered upon the propriety of permitting the minor to be tried under the Criminal Code of 1961. However, the defendant also contended (1) the imposition of a natural life sentence on him for offenses committed when he was only 14 violated the due process provisions of the Illinois and Federal Constitutions and the eighth amendment; and (2) his confrontation rights were violated by the introduction of certain evidence. In a split decision, this court affirmed. The Dissent focused on the severity of section 5-8-1(a)(1)(c) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-1(a)(1)(c)) as applied to the case of a 14-year-old against whom criminal prosecution was sought. That legislation mandates the imposition of a sentence for natural life upon the conviction of an accused of two murders. The Dissent concluded the record conclusively showed that the circuit court, when permitting the criminal prosecution, was unaware of that mandatory requirement.

After granting leave to appeal, the supreme court reversed and remanded, directing the procedure begin with a new hearing in the juvenile proceeding, to determine whether criminal prosecution was proper. That court unanimously agreed that the prior juvenile proceeding was flawed, because neither court nor counsel had been aware of the mandatory requirement of section 5-8-1(a)(1)(c) of the Unified Code of Corrections. The majority of that court also held the hearing to determine whether criminal prosecution should be permitted was flawed because insufficient evidence was presented as to the personal and social history of the defendant and as to whether facilities were available to treat him if he remained subject to the Juvenile Court Act. See Ill. Rev. Stat. 1983, ch. 37, par. 702-7(3).

On remand, the circuit court, after holding a hearing, again authorized the criminal prosecution of defendant. New informations were filed. A jury trial was again held, this time in McLean County. Defendant was convicted and sentenced, as previously described, and the instant appeal was taken. Defendant again maintains the circuit court abused its discretion in allowing criminal prosecution and asserts his constitutional rights were violated by imposition of the natural life sentence. He also asserts the circuit court erred (1) in denying his motion to suppress statements he gave to police; and (2) in allowing two witnesses to testify to statements he made while in juvenile detention. We hold that no error occurred and affirm.

On remand, both at the hearing to determine whether criminal prosecution should be allowed and at trial, evidence was presented indicating (1) in the early morning hours of July 14, 1984, a Decatur police officer noted a possible break-in at the home of P.C. and E.C., both octogenarians, in Decatur; (2) upon entering that house, that officer found the brutally beaten corpse of E.C. and an equally brutally beaten and nearly dead P.C. on the floor in separate rooms; (3) P.C. died soon thereafter; (4) an ear of sweet corn had been forced into E.C.'s vagina; (5) defendant had admitted to several people that he and Rodney Baltimore had entered the victims' home to burglarize it and when defendant came upon E.C., he beat her, jumping on her chest and breaking her sternum; and (6) Baltimore then beat P.C.

At the latest hearing concerning whether criminal prosecution should be permitted, the evidence concerning the defendant's personal and social history was extensive and thorough. Testimony was presented that police had five contacts with defendant prior to present charges and three of those had resulted merely in station adjustments. Dale Sunderland, a psychiatrist, testified he had interviewed defendant and diagnosed defendant as having an antisocial personality with some paranoia. He described such a person as one unlikely to learn from experience to such an extent it would change his behavior. Dr. Sunderland stated an opinion that no local facilities were available that could rehabilitate defendant but that if defendant could stay two or three years in a secure structured institution adequately staffed, defendant might be rehabilitated. Stephen Courtois, a psychologist, testified he had examined and tested defendant and found him (1) "very intelligent"; but (2) "very explosive" at times and "quite angry and violent"; and (3) unlikely to be rehabilitated except that after age 40, he might lose his aggressiveness and become rehabilitated.

Defendant places his greatest emphasis upon his contention that the circuit court abused its discretion in ruling on the State's request for leave to prosecute him under the Criminal Code of 1961. In the face of the stronger evidence on remand, defendant does not contend that permitting the criminal prosecution was error. Rather, he asserts the court should not have permitted the State to prosecute him for both murders but only for the murder of E.C., in regard to which the evidence indicated he performed the acts which brought about the death. Had this ruling been made, he would not have been subject to a mandatory natural life sentence and, in sentencing, the court would have had discretion in imposing sentence to consider whatever mitigating evidence he could produce including that which showed he was only 14 years old at the time of the offenses.

Section 5--4(3)(a) of the Juvenile Court Act of 1987, which was in force at the time of the latest hearing concerning whether criminal prosecution was authorized, requires the court, in rendering its decision, ...


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