Appeal from the Circuit Court of Cook County 09 JD 1621 Honorables Paul Stralka and Terrence V. Sharkey, Judges Presiding.
The opinion of the court was delivered by: Justice McBRIDE
JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Presiding Justice Epstein and Justice Howse concurred in the judgment and opinion.
¶ 1 Respondent M.I. was adjudicated delinquent after the trial court found respondent guilty of three counts of aggravated discharge of a firearm and two counts of aggravated unlawful use of a weapon. Prior to trial, the State moved to designate the case as an extended jurisdiction juvenile (EJJ) prosecution, which the trial court allowed. The trial court sentenced respondent to an indeterminate term in the Juvenile Department of Corrections, which shall be no later than his twenty-first birthday, and pursuant to the EJJ statute, respondent received an adult sentence of 23 years in the Department of Corrections to be stayed pending respondent's successful completion of his juvenile sentence.
¶ 2 Respondent appeals, arguing that (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court failed to conduct a hearing on the State's EJJ motion within the 30- or 60- day requirement under the statute, making his adult sentence void; and (3) the EJJ statue is unconstitutionally vague because it does not provide fair warning of the prohibited conduct that triggers imposition of the adult sentence.
¶ 3 On April 23, 2009, respondent was arrested and charged by a petition for adjudication of wardship with three counts of aggravated discharge of a firearm, reckless discharge of a firearm, aggravated unlawful use of a weapon, and unlawful possession of a firearm.
¶ 4 On May 5, 2009, the State filed a motion to designate the proceedings as an EJJ, pursuant to section 5-810 of the Juvenile Court Act of 1987 (705 ILCS 405/5-810 (West 2008)). Section 5-810 allows the State to file a petition when a juvenile has been charged with an offense that would be a felony if committed by an adult, and upon a finding of guilty, the trial court shall impose a juvenile sentence and an adult sentence, which is stayed on the condition that the offender not violate the provisions of the juvenile sentence. 705 ILCS 405/5-810 (West 2008). The motion was set for a hearing on June 22, 2009.
¶ 5 On June 22, 2009, the State answered not ready for the EJJ hearing because it was "still waiting for some school records." A new attorney also filed an appearance for respondent and his prior counsel asked leave to withdraw. The proceedings were continued until July 6, 2009, for status. On July 6, 2009, the parties and the trial court agreed to conduct the hearing on August 12, 2009. The trial judge noted that, "this is way past the 60 days this was filed. But in many cases, the State's Attorneys advise me that's not mandatory." The judge asked the assistant State's Attorney if that was her position, and she responded that it was. The EJJ hearing was conducted on August 12, 2009, and the trial court granted the State's motion to proceed under the EJJ statute on September 1, 2009.
¶ 6 The following evidence was admitted at respondent's December 2009 bench trial. The trial judge presiding over the bench trial was a different judge than the judge who ruled on the State's EJJ motion.
¶ 7 Officer Kevin Kelly testified that on April 23, 2009, he was assigned to the gang enforcement section of the Chicago police department. At approximately 5:47 p.m. that evening, Officer Kelly was working with partners Officer Mulkerrin, Officer McDonough, and Sergeant Mason in the alley at Chicago and Mayfield in Chicago.*fn1 They were dressed in plain clothes. Officer Kelly stated that he was wearing his vest under his T-shirt and had his badge hanging around his neck. The officers had received a few calls of a gang disturbance. The officers were on foot conducting field interviews when they heard a lot of noise coming from Mayfield, to the west of their position. Their unmarked police car was parked in the alley, east of Mayfield.
¶ 8 Officer Kelly stepped out of the alley and observed a large group of black males beginning to fight. He estimated 30 or 40 men. He observed one man with a baseball bat about to strike another individual when he screamed, "Police, stop, stop, stop." The man with the bat responded, "F*** that, they got guns." The officer asked who had guns and the man answered, "Dude in blue." Officer Kelly testified that right after that statement, he heard two gunshots. Officer Kelly then ran back to the sidewalk and took cover behind a van. He described that van as green or blue teal with stripes. He looked up and "saw a male black in a blue jacket firing a gun three or four more times in [his] direction." Officer Kelly identified respondent in court as the person he saw firing the gun.
¶ 9 Officer Kelly stated that he saw respondent standing on the curb and pointing a gun in his direction. He further testified that as he heard the shots, he saw that respondent's "hand was recoiling," meaning "his hand was going up and down" as he was shooting. Officer Kelly estimated that he was approximately 30 feet or 3 car lengths from respondent during the shooting. Officer Kelly went to pull his weapon and respondent turned and started to run. Officer Kelly stated that his partners were behind him. He said that individuals were running in all directions, but his focus was on the man who was shooting the gun at him. When the respondent began to run, Officer Kelly gave chase.
¶ 10 When he started to run, Officer Kelly went to put his gun away and realized he had dropped it. He turned his head "for a second" or "half second" and his partner said he had Officer Kelly's gun. He was still able to see respondent after he turned his head. Officer Kelly continued running and shouted that it was the man with the blue jacket. Officer Kelly testified that as they were running, three other men came up to respondent and it "looked like he was passing something off to them." The three other men split up in different directions while Officer Kelly continued to pursue respondent. Another police car cut off respondent and he was taken into custody. Officer Kelly stated that respondent was detained about a block away from the shooting.
¶ 11 Officer Kelly testified that he believed respondent was firing at him because respondent pointed the gun in his direction and he heard bullets hit things around him, including the van next to him.
¶ 12 On cross-examination, Officer Kelly stated that he could not see the gun when respondent began to run away. He said he thought respondent might have tried to put it in his jacket before the three other men came up beside respondent. Officer Kelly testified that he did not see respondent give the gun to someone else and he also did not see respondent put the gun in his coat. Officer Kelly admitted the arrest report did not state that respondent might have given the gun to another individual. He stated that he told the detectives and other officers about respondent passing the gun to another person. Officer Kelly said he did not see respondent throw the gun to ground and the police searched in the general vicinity of where respondent ran, but did not recover a gun.
¶ 13 Sergeant Thomas Mason testified that on April 23, 2009, he was assigned to the gang enforcement section of the Chicago police department. Sergeant Mason stated that he was in civilian clothes with his bulletproof vest under his shirt and his badge displayed on his belt. While he was conducting field interviews with his partners, he observed a large number of young men engaged in a big street fight that appeared to be moving north on Mayfield. He and the other officers went to investigate. Sergeant Mason estimated that at least 30 men were participating in the fight. He saw one young man swinging a bat and he told him to stop.
¶ 14 At some point, Sergeant Mason was in the street speaking with some of the fight participants, including the man with the bat, who told the officers that someone had a gun. Sergeant Mason stated that the next thing that happened was that he heard a gunshot. He looked around and saw an individual standing on the corner on the opposite side of the street, less than 100 feet away, firing a gun. Sergeant Mason identified respondent in court as the person shooting the gun. He testified that he saw respondent firing a handgun "at what appeared to [him] to be right at [him] multiple times."
¶ 15 Sergeant Mason described the scene as "pretty chaotic" when the shots were fired, with people running in "every possible direction." Sergeant Mason began to chase after respondent and called on the police radio to report that shots had been fired. He said that respondent fled northbound and was very fast. He stated that another police car pulled near him and he told them who he was chasing. The officers sped up and were able to stop respondent. Sergeant Mason testified that he saw respondent in custody and he was the same person he had seen firing a gun. He further stated that he did not lose sight of respondent from the time the shots were fired until respondent was detained.
¶ 16 On cross-examination, Sergeant Mason testified that he did not see respondent hand the weapon to other individuals. He also did not see respondent discard the weapon. Sergeant Mason admitted that he did not retrieve the weapon because it was not on respondent and he did not find it. He stated that the police looked "all along the path, along Mayfield, in the empty lots and along the parkway and street all the way out from where we saw him initially to point where was arrested." Sergeant Mason said that later, Officer Kelly told Sergeant Mason that he believed he saw respondent hand off the gun.
¶ 17 Officer Fred Bojic testified that he was employed by the Chicago police department as an evidence technician. He stated that on April 23, 2009, he received an assignment to go to "745 Mayfield" in Chicago to collect evidence at a crime scene. He recovered three fired cartridge cases, metal fragments and a fired bullet. Officer Bojic testified that he recovered "one fired cartridge case stamped CCI 9-millimeter Luger" near the western edge of the sidewalk outside 758 North Mayfield. He also recovered a fired cartridge case "stamped CCI 9-millimeter Luger" under the bushes in a parking lot at 756 North Mayfield. The third fired cartridge case was recovered from the sidewalk at 756 North ...