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05/16/94 E.M. v. E.M.

May 16, 1994

IN RE E.M., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
E.M., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Du Page County. No. 92-J-912. Honorable Roy F. Lawrence, Judge, Presiding.

Geiger, Inglis, McLAREN

The opinion of the court was delivered by: Geiger

JUSTICE GEIGER delivered the opinion of the court:

This action was brought on a petition charging the respondent, a minor, with the theft of a brown leather jacket. The juvenile court Judge, without a jury, found that the petition was proved. The minor was adjudicated a delinquent minor and placed on probation. The issues on appeal are: (1) whether the Miranda issue was waived when it was raised during the bench trial, but not in the post-trial motion; (2) whether the court erred when it did not suppress the minor's confession when the high school dean of students did not administer Miranda warnings prior to questioning him; and (3) whether the court erred when it admitted the oral testimony that the school recordsindicated that a certain locker was assigned to the minor. We affirm.

On January 26, 1993, a second amended petition for an adjudication of delinquency and wardship was filed, alleging in paragraph 3(a) that E.M., the 15-year-old respondent minor, committed the offense of theft by possession, in that he knowingly obtained control over certain stolen property, a brown leather jacket having a value of less than $300, under such circumstances as would reasonably induce the minor to believe that the property was stolen, intending to deprive the owner permanently of the use of the property in violation of section 16-1(a)(4) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 16-1(a)(4) (now 720 ILCS 5/16-1(a)(4) (West 1992))). In paragraph 3(b), the minor also was charged with committing theft in that he knowingly exerted unauthorized control over the same leather jacket, intending to deprive the owner permanently of the use of the property in violation of section 16-1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1991, ch. 38, par. 16-1(a)(1) (now 720 ILCS 5/16-1(a)(4) (West 1992))). The minor denied both charges of theft.

On February 22, 1993, a juvenile adjudicatory hearing was held before a Judge. Larry Schulte, Dean of Students at Fenton High School in Bensenville, testified that on May 6, 1992, a student came into his office, asked not to be identified, and said that he had seen the minor take a brown leather jacket and place it in a certain locker. Dean Schulte looked in the school records and found that the minor was assigned the reported locker. Dean Schulte and Bruce Nichols, a police liason officer who was assigned to Fenton High School from the Bensenville police department, went to the locker. Dean Schulte opened the locker with a school key and found the brown leather jacket hidden inside another jacket which was in the locker. Officer Nichols witnessed Dean Schulte remove the jacket from the locker.

Dean Schulte presumed that the other jacket, which he described as a starter jacket, belonged to the minor since he had seen the minor wear one like it, and it was in the locker assigned to the minor. According to Dean Schulte, he had the minor removed from class and brought to his office.

According to Dean Schulte, he questioned the minor in his office. Dean Schulte testified that only he and the minor were present in his office during the questioning. At first, the minor denied knowing about the stolen jacket. According to Dean Schulte, he informed the minor that a student told him that he saw the minor take the leather coat out of one locker and place it in another locker. According to Dean Schulte, when he informed the minor that the jacket inquestion was found in his locker, inside his jacket, the minor confessed that the brown leather jacket did not belong to him and that he had taken it. Dean Schulte testified that the minor gave him no further details or information as to how or why he took the jacket. Dean Schulte informed the minor that he was going to be suspended from school and that there would be a referral to the Bensenville Police Department in accordance with "standard operating procedure."

According to Dean Schulte, he and the minor were alone in his office during the questioning and neither of them left during the questioning. Officer Nichols came into his office only after the questioning and after Dean Schulte told the minor that he was going to be suspended and that there would be a referral to the Bensenville Police Department. Dean Schulte's office is in a complex of several Deans' offices. The office occupied by Officer Nichols is across the hall from Dean Schulte's office.

Both Dean Schulte and Officer Nichols characterized the questioning as a school disciplinary proceeding. After the disciplinary proceeding, according to Dean Schulte, in accordance with "standard operating procedure," he turned the minor over to Officer Nichols who entered the Dean's office after the disciplinary proceeding. Once they were in Officer Nichols' office, Officer Nichols gave the minor Miranda warnings which were witnessed by Dean Schulte. After the Miranda warnings were given, the minor refused to talk about the theft. Officer Nichols released the minor.

Although Dean Schulte referred the minor to Officer Nichols following the school disciplinary proceeding, Dean Schulte did not immediately inform Officer Nichols that the minor had admitted his culpability. In fact, according to Officer Nichols, he was not informed that the minor admitted his culpability to Dean Schulte until January 6, 1993, eight months after the incident in question.

According to the minor, while he was eating lunch, Officer Nichols came and got him and escorted him to Dean Schulte's office. The minor testified that he was questioned the whole day by Dean Schulte. He also testified that Officer Nichols repeatedly came into and went out of the office. The minor testified that he did not leave the office until he was released by Officer Nichols. He also testified that after Officer Nichols read him Miranda warnings, he invoked his right to remain silent. He testified that Dean Schulte asked him questions even after he had invoked his right to remain silent. The minor testified that his jacket was a red Chicago Bulls windbreaker with insulation, commonly known as a starter jacket.

The minor's attorney objected to the admission of the testimony that the locker was assigned to the minor. The attorney argued thatthe foundation testimony was insufficient for admission under the business records exception to the hearsay rule. The locker records themselves were not in evidence. The objection was overruled.

Prior to the adjudicatory hearing, the defense attorney had filed a motion to suppress the minor's confession. He argued that motion at the close of the evidence at the adjudicatory hearing. As part of that argument, he stated that Dean Schulte should have given the minor his Miranda warnings prior to questioning him. He stated that the minor was in custody of Dean Schulte. He stressed the fact that the ...


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