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09/18/97 PEOPLE STATE ILLINOIS v. SHAWN FULLER

September 18, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
SHAWN FULLER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 93-CR-2858. Honorable James P. Flannery, Judge Presiding.

Released for Publication November 10, 1997.

The Honorable Justice Cerda delivered the opinion of the court. Wolfson, P.j., and McNamara, J., concur.

The opinion of the court was delivered by: Cerda

The Honorable Justice CERDA delivered the opinion of the court:

Defendant, Shawn Fuller, 14 years old, was transferred from juvenile court to the criminal court to be prosecuted for first-degree murder. 720 ILCS 5/9-1 (West 1992). After a jury trial, he was found guilty and was sentenced to 35 years' imprisonment. On appeal, defendant asserts that (1) his transfer from juvenile court to the criminal court was an abuse of discretion; (2) the trial court erred in failing to quash the arrest and suppress the evidence; (3) his confession was involuntary; (4) the trial court erred in failing to excuse two prospective jurors for cause; (5) the jury should have been instructed on the lesser offense of involuntary manslaughter; (6) the State's closing argument remarks were prejudicial; (7) the trial court abused its discretion in failing to honor the jury's request for a transcript; (8) an allegation of juror coercion entitles him to an evidentiary hearing; and (9) his sentence was excessive.

At the juvenile court hearing to determine whether defendant would be transferred to the criminal court, Chicago police officer Gary Horacek testified that he responded to a call of a man shot at 12:25 a.m. on November 8, 1992. When he arrived at 50th and Campbell Streets, Chicago, he saw the victim, George Bonk, who had died of multiple gunshot wounds. Officer Horacek interviewed several neighbors, who stated that they heard three gunshots, but did not see the shooting.

Chicago police detective Nicholas Crescenzo testified that he spoke to Theresa Zielinski at 2 a.m. on December 11, 1992. Zielinski told him that she was at defendant's house on the night of the shooting. Shortly after midnight, defendant returned home in a black car driven by someone named Johnny. Defendant, who was nervous and panicky, told Zielinski that he had been shooting at rival gang members when he shot a bystander by accident. Defendant told Zielinski to spread the word around the neighborhood that someone else was the shooter.

Crescenzo further testified that after interviewing Zielinski, Crescenzo and his partner arrested defendant, advised him of his Miranda rights, and told him that he could have his parents present. Defendant told Crescenzo that on the night of Bonk's murder, he left a gang meeting in a black Buick with a fellow gang member named Johnny. After getting a gun and ammunition, Johnny put the gun under the car's front seat so that he could pull it out quickly if they saw rival gang members. As they were driving west on 50th Street towards Campbell, they saw rival gang members, who yelled insults. Johnny pulled out the gun, put in the clip, and handed it to defendant, saying, "Cap em, cap 'em!" Defendant took the gun, leaned out the car window, and fired at the rival gang members. The next day, he learned that someone had been killed.

Jean Marie Zupan, defendant's probation officer, described defendant as having an above-average intelligence, no educational problems, and being academically capable and talented. However, he was a severely emotionally disturbed and violent person who came from a violent, severely unstable, dysfunctional family. Although Zupan thought defendant was a danger to himself and to others, she also stated that he was eager to get attention and praise from adults and did well in one-on-one therapy.

It was Zupan's opinion that defendant's problems resulted from his upbringing and family situation. Because his home was not an appropriate place for defendant, Zupan recommended that he stay in the juvenile system where he could get mental health residential services. She thought that he should be placed out-of-state to avoid contact with his family.

Zupan explained that defendant had previously attended behavior disorder programs at five schools. For nine months in 1991, he attended a residential program at the Mill School in Rockford. Initially, he was very disruptive and had to be restrained several times, but eventually he made progress. Unfortunately, his father refused further residential treatment and defendant went home. Defendant then attended Oak Therapeutic Day School for eight weeks. A social worker there told Zupan that defendant had learned how to manipulate therapy to give the impression of compliance without any real progress.

In 1992, defendant was admitted to Children's Psychiatric University Hospital after he threatened to kill himself and his father. The hospital social worker told Zupan that defendant was initially non-compliant, but then progressed and responded well to the structured environment. At the time of his arrest, defendant was attending Hillside Day Academy.

Defendant told Zupan that he joined the Campbell Kings street gang when he moved into his neighborhood in April 1992. Prior to his arrest, defendant stayed in the house most of the time because he was afraid to go outside. Previously, in 1989, he had been in the Disciples street gang for five months, but quit after being shot with a BB gun and harassed by other kids.

Defendant had six station adjustments: disorderly conduct in December 1987; criminal trespass to property in April 1989; assault in May 1989; criminal trespass to property in July 1992; a racial incident and mob action in August 1992; and a gang adjustment in September 1992.

Responding to the court's questions about the availability of long-term residential programs for juveniles, Zupan stated that there was a possibility that defendant would go home if none were available. Zupan did not know what residential programs were available for defendant as an adult or whether defendant's father could be precluded from regaining custody of defendant. Zupan explained, however, that defendant could be declared a ward of the court, which could monitor his treatment and place him wherever it saw fit, thus preventing him from returning home.

Douglas Cater, a social worker at the McKinley Intervention Services, testified that he had been counseling defendant's family for a year prior to Bonk's murder. Cater described defendant's family life as chaotic with little nurturing and much bickering and fighting. Cater had not seen much improvement while he was working with the family.

According to Cater, the principals at defendant's schools liked defendant and wanted him back. Cater thought it was in defendant's best interest to be in a residential treatment institution where he could get regular intensive psychological counseling. Defendant had told Cater he was recruited into a gang in May 1992 by someone who was nice to him. Cater felt that defendant was vulnerable to that type of influence due to his family situation. After defendant was badly beaten by rival gang members in August 1992, he was afraid to go outside. As a result, he stayed home most of the time and developed a vocal tick. Although defendant had soured on the gang life, he remained a gang member to receive protection and because he was afraid that his own gang would hurt him if he tried to get out. It was Cater's opinion that defendant is very intelligent, has much potential, and should stay in the juvenile system since he is very cooperative when he is nurtured.

After arguments, the juvenile court granted the State's motion to transfer defendant to the criminal court. In its findings, the court found that there was sufficient evidence upon which a grand jury would be expected to return an indictment, there was evidence that the offense was committed in an aggressive and premeditated manner, defendant was 14 years, 8 months old at the time of Bonk's murder, and defendant possessed a deadly weapon when he committed the offense. In reviewing defendant's prior history, the court concluded that it was sufficient to warrant a transfer. Finally, the court considered whether there were facilities available for defendant's treatment and rehabilitation and whether the best interests of the minor and the security of the public would require that defendant continue in custody after his 21st birthday.

Defendant asserts that his transfer to the criminal court was an abuse of discretion, which defied the recommendation of every witness. Defendant maintains that the trial court erroneously believed that his father would invariably retain legal custody, thus enabling his father to sabotage his progress, unless he was prosecuted under the criminal laws.

Section 5-4(3)(a) of the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 1994)) permits criminal prosecution of a minor at least 13 years of age for any offense if, upon the motion of the State's Attorney, a juvenile court judge finds that it is not in the best interests of the minor or of the public to proceed under the Juvenile Court Act. People v. Beck, 190 Ill. App. 3d 748, 753, 546 N.E.2d 1127, 138 Ill. Dec. 72 (1989); 705 ILCS 405/5-4(3)(a) (West 1992). The purpose of any transfer proceeding is to balance the best interests of the alleged juvenile offender, particularly as those interests relate to his potential for rehabilitation, against society's legitimate interest in being protected from criminal victimization by minors. People v. Clark, 119 Ill. 2d 1, 12, 518 N.E.2d 138, 115 Ill. Dec. 613 (1987).

Section 5-4(3)(b) of the Juvenile Court Act of 1987 lists several factors that a juvenile court judge must consider in deciding whether a minor should be prosecuted as an adult. In re R.T., 271 Ill. App. 3d 673, 677, 648 N.E.2d 1043, 208 Ill. Dec. 121 (1995); 705 ILCS 405/5-4(3)(b) (West 1992). Although the juvenile court's inquiry is not limited to the statutory factors, the court must at a minimum consider: (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 available to the juvenile court for the minor's treatment and rehabilitation; (6) whether the best interests of the minor and the security of the public require that the minor continue in custody or under supervision for a period extending beyond his minority; and (7) whether the minor possessed a deadly weapon when committing the alleged offense. 705 ILCS 405/5-4(3)(b) (West 1992). Finally, the judge weighing these relevant factors must determine whether to strike the balance for society by transferring the alleged juvenile offender, or to strike the balance for the juvenile by retaining jurisdiction. Beck, 190 Ill. App. 3d at 755, citing Clark, 119 Ill. 2d at 14.

In a transfer hearing, the State has the burden of presenting sufficient evidence to persuade the juvenile court to grant a motion to transfer. People v. Taylor, 76 Ill. 2d 289, 304, 391 N.E.2d 366, 29 Ill. Dec. 103 (1979); In re L.J., 274 Ill. App. 3d 977, 979, 654 N.E.2d 671, 211 Ill. Dec. 209 (1995). Although no single factor is dispositive, equal weight need not be given to all the factors. Taylor, 76 Ill. 2d at 305; People v. Cooks, 271 Ill. App. 3d 25, 39, 648 N.E.2d 190, 207 Ill. Dec. 734 (1995). The State must only present evidence sufficient to persuade the juvenile court, in its discretion, that transfer is justified in light of the statute. Cooks, 271 Ill. App. 3d at 39. It is not necessary that all factors be resolved against the juvenile. Cooks, 271 Ill. App. 3d at 39.

The role of the appellate court when reviewing transfer cases is to determine whether, in evaluating the evidence in light of the statutory criteria, the juvenile court has abused its discretion. Taylor, 76 Ill. 2d at 300-01; In re R.T., 271 Ill. App. 3d at 677. We find that the juvenile court did not abuse its discretion when it transferred defendant to the criminal court.

The first factor to consider is whether there was sufficient evidence introduced at the transfer hearing upon which a grand jury could be expected to return an indictment. The factors to be considered require only a probable cause standard of proof. Taylor, 76 Ill. 2d at 303; In re R.T., 271 Ill. App. 3d at 679; Cooks, 271 Ill. App. 3d at 39. Given the facts of this case, there was sufficient evidence introduced at the transfer hearing.

The second factor is whether the evidence shows that the alleged offense was committed in an aggressive and premeditated manner. The record contains evidence that this murder was ...


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