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November 27, 1996



Rehearing Denied January 6, 1997. Released for Publication January 15, 1997.

The Honorable Justice Gordon delivered the opinion of the court: Cousins, Jr. and Hourihane, JJ., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

Defendant, Sherard Martin, appeals from the order of the juvenile division of Circuit Court of Cook County transferring him to the criminal division for trial as an adult on the charge of first degree murder. After the transfer, the defendant was convicted of that charge and was sentenced to a 25-year term of imprisonment in the Illinois Department of Corrections. The defendant appeals from the transfer order and contends that, if the transfer order is reversed, his conviction in the criminal court should be reversed and the case remanded for a new transfer hearing.

On June 17, 1992, the defendant, who was 14 years old, was arrested for the murder of Fred Harper. In accordance with section 5-4(3) of the Illinois Juvenile Court Act of 1987 (the Juvenile Court Act) (705 ILCS 405/5-4(3) (1992)), the State moved for entry of an order permitting prosecution of the defendant as an adult.

At the hearing on the transfer motion, the testimony of the State's witnesses revealed that on May 9, 1992 nineteen-year-old Fred Harper, the victim, and Vascoe Zinnerman, his friend, saw a car parked outside Zinnerman's house with its windows broken. As Harper and Zinnerman made inquiries as to who had broken the windows, they encountered four youths, one of whom was the defendant. The defendant and Harper had "exchanged words" earlier that day. As the defendant approached Harper, Harper pulled a beer bottle from a trash can and held the bottle at his side. Words were exchanged and Harper dropped the beer bottle and turned to walk away. Thereafter, Zinnerman saw one of the youths hand a gun to another of the youths. He grabbed Harper and began to run. The youth holding the gun fired it striking Harper in his back as he was walking away. Harper died on June 10, 1992 as a result of the injuries he sustained from the shooting. Zinnerman identified the defendant in a line-up as the person who fired the gun.

On June 17, 1992, the defendant was questioned by the police and confessed to shooting Harper. In his written statement prepared at the police station, the defendant stated that he encountered Harper and Zinnerman at approximately 8 p.m. on the night of the shooting. At that time, Harper and Zinnerman were riding their bicycles. Harper accused the defendant of calling him a "hype" (a slang for drug dealer), threatened to beat the defendant up and then rode away. Thereafter, the defendant and his friend, Reginald, went to a garage and the defendant retrieved a ".38 special." The defendant stated that later that evening he, Reginald and two additional friends walked toward a McDonald's restaurant and passed Zinnerman's house and the car with the broken windows. While they were at the McDonald's restaurant, Harper came into the restaurant, looked at them and left. When the defendant and his friends left the restaurant, Harper and Zinnerman were walking about 20 feet away. Harper took a bottle from a garbage can and put it under his jacket. When Harper and Zinnerman were about 6 or 7 feet away, they turned and stood in front of the defendant and his friends. The defendant stated that Harper accused him of breaking the car windows but he denied that he had and pulled out his gun, holding it at his side. Zinnerman walked away while Harper continued to stand there for about a minute or two. After Harper turned to walk away and was about 15 or 16 feet away, the defendant shot him.

Irene Porter, the probation officer assigned to the defendant in November 1991, after he had been adjudicated a delinquent based upon the commission of a theft, was called by the State and testified that in 1991 she conducted a social investigation of defendant's family, maintained almost monthly contact with the defendant, and provided him with "minimum" counseling consistent with her limited abilities and training. (Porter had been a probation officer for thirteen years and had two years of training in family therapy.) Porter also had several conversations with defendant's mother and made calls to defendant's school. The mother gave no negative reports; and the defendant was attending school regularly but was maintaining a "D" average.

Porter testified that in 1991 the defendant had "three station adjustments" for two batteries and a disorderly conduct offense *fn1 and one court referral for theft of an automobile. *fn2 Porter identified a social report she prepared dated June 26, 1992; a supplemental report dictated January 20, 1993; and a supplemental report and addendum dictated June 8, 1993 which she prepared for purposes of the instant hearing. Porter testified that before she prepared her third report she had become aware of seventeen rule violations committed by the defendant while he was at the juvenile detention center.

Porter acknowledged that in her first report, she noted that the defendant had no remorse after shooting Harper and was only concerned as to when he would be released. That report contained no expressed preference as to whether the defendant should remain in the juvenile correctional system. Porter's second report contained the recommendation that the defendant remain in the juvenile system. That recommendation was based upon defendant's admission to her of only two rule violations. At that time, she felt that the defendant was responding to the "intervention of the detention center" by the teachers, social workers and other people who were there to address his needs. After Porter became aware of the seventeen rule violations, she prepared a third report because she saw the development of a pattern of behavior. In that report Porter recommended that the defendant be tried as an adult.

On cross-examination, Porter stated that she was not trained to provided intensive counseling for severe conduct disorders or other psychological problems. In her opinion, based upon her discussions with the defendant and four conversations with defendant's mother, the defendant's earlier problems were not severe enough to warrant that type of counseling. She stated that her first conversation with defendant's mother lasted over an hour and the remaining three lasted about ten minutes each. She also stated that, when she met with the defendant, he was polite and cooperative. When asked about defendant's behavior at the detention center, Porter stated that she received positive reports from defendant's teachers and that his performance improved at the center over a period of time.

When questioned about the reports she prepared, Porter testified that when she prepared the first report, she was aware of the services offered by the juvenile and adult systems but was unsure as to which one would best meet the defendant's needs. She further stated that, after reviewing the rule violation reports and after talking with school personnel at the detention center, she became aware of other facets to the defendant's personality. That information combined with a review of defendant's legal history, led her to change her recommendation in favor of transfer. She admitted that she never talked to any of the people who issued the rule violations and never determined whether the violations actually occurred. Porter knew that if the defendant were convicted by the juvenile court he could only be detained until he was twenty-one years old whereas if he was convicted in the adult system he could be sentenced to twenty years in the penitentiary. *fn3

[The following material is nonpublishable under Supreme Court Rule 23.]

[The preceding material is nonpublishable under Supreme Court Rule 23.]

Doctor Derrick I. Miller, a psychiatrist whose expertise in the area of child and adolescent psychiatry was stipulated to by the State, testified concerning his experience in studying, diagnosing and treating delinquent and anti-social adolescents. Miller testified that he interviewed the defendant on four occasions for a total of approximately four hours; interviewed the defendant's mother for approximately one hour; and read various police and social worker reports concerning the defendant. Miller also visited the St. Charles Youth Center, a correctional facility operated by the juvenile division of the Illinois Department of Corrections.

Miller opined that the defendant was treatable because he was able to make trusting relationships with people and that the St. Charles facility would provide an appropriate treatment program for the defendant. Miller stated that that facility could meet the defendant's need to identify with positive male role models. In Miller's opinion, the defendant would need to be treated for about two years.

Miller stated that his determination that the defendant was treatable was influenced by the fact that the defendant did not enjoy violence and did not intend to kill Harper. According to Miller, the defendant intended to shoot Harper in the buttocks to frighten him and prevent future conduct. That action was a learned response, learned within defendant's family environment such as when defendant's mother shot and killed her abusive boyfriend. Miller stated that when he interviewed the defendant, the defendant indicated that the hospital was ...

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