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In Re Omar M., A Minor v. Omar M

June 29, 2012

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



Appeal from the Circuit Court of Cook County. No. 08 JD 155 Honorable Patricia Mendoza, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Robert E. Gordon

PRESIDING JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. Justices Lampkin and Palmer concurred in the judgment and opinion.

OPINION

¶ 1 Omar M., the respondent, was prosecuted, convicted, and sentenced under the Extended Jurisdiction Juvenile Prosecutions (EJJ prosecution) statute (705 ILCS 405/5-810 (West 2008)), for first-degree murder. When a juvenile receives an EJJ prosecution designation and a jury finds him guilty, the EJJ prosecution statute then requires a judge to impose two sentences: a juvenile sentence; and an adult criminal sentence that is stayed on successful completion of the terms of the juvenile sentence. 705 ILCS 405/5-810(4) (West 2008). After a jury found respondent guilty and the trial court heard aggravation and mitigation, he received the maximum juvenile sentence of incarceration until his twenty-first birthday. He also received a 20-year stayed adult sentence.

¶ 2 On this appeal, respondent claims: (1) that the State's proffer of evidence for the EJJ prosecution designation was "untrue" because two of the State's four eyewitnesses failed to appear at trial; (2) that the EJJ prosecution statute violates a juvenile respondent's right to due process because the EJJ prosecution designation is decided by a judge by a preponderance of the evidence instead of by a jury beyond a reasonable doubt; and (3) the EJJ prosecution statute is unconstitutionally vague. For the following reasons, we do not find respondent's arguments persuasive, and we affirm.

¶ 3 BACKGROUND

¶ 4 On January 10, 2008, the State charged respondent Omar M. with two counts of first-degree murder, in violation of section 9-1(a) of the Criminal Code of 1961 (720 ILCS 5/9-1(a) (West 2006)), arising out of events that occurred on December 24, 2007. Both counts allege that respondent beat the victim, Francisco Reyes, to death using his hands and feet. The first count alleges that respondent intentionally or knowingly beat the victim, thus causing his death. 720 ILCS 5/9-1(a)(1) (West 2006). The second count alleges that respondent beat the victim knowing that his actions created a strong probability of death or great bodily harm. 720 ILCS 5/9-1(a)(2) (West 2006). The State initially alleged that respondent used an aluminum baseball bat and his feet, but before trial, the State moved to amend the charging statement to replace "aluminum baseball bat" with "hands."

¶ 5 On January 25, 2008, the State filed a motion to designate the proceeding as an EJJ prosecution, alleging that respondent was 14 years old at the time of the murder and that probable cause existed to indicate that he committed the offense. 705 ILCS 405/5-810 (West 2006).

Respondent was born March 13, 1993. The proceedings were transferred to the EJJ prosecution designation judge (the judge) for a hearing to determine whether probable cause existed to believe the allegations against respondent and whether clear and convincing evidence supported the propriety of sentencing respondent as an adult.

¶ 6 At the hearing, the State proffered that at trial, it would call Juan Ramirez, who had discovered the body and called the police, as well as four eyewitnesses to the murder: (1) Jaime Gonzales, (2) Juliana Flores, (3) Fernando Garcia, and (4) Sielvia Ortiz. The State also proffered that it would call Dr. Mitra Kalelkar to testify about the cause of the victim's death.

¶ 7 First, the State proffered that it would call Juan Ramirez, an employee at the Popocatapetal Tortilla Company (factory), to testify as follows. Approximately one month before December 24, 2007, some individuals, who had been chased by local gang members Danny R. and Martin R., had sought safety inside the factory. The employees obliged, granting the individuals entrance into the factory and locking the doors behind them. Martin R. and Danny R. became irate and proceeded to break the windows of vehicles belonging to the factory employees. On the night of December 24, 2007, Ramirez asked the victim to take a forklift to the parking lot and pick up some equipment and bring it back to the factory. When the victim did not return after approximately 20 minutes, Ramirez went to the parking lot and observed the victim lying unconscious on the ground and bleeding from the head. He observed a man known as "Chino," later identified as Fernando Garcia, near the scene, and believed that Garcia had witnessed an attack on the victim. Ramirez then called police.

¶ 8 The State proffered that eyewitness Jaime Gonzales would testify as follows. Gonzales lived near the factory, and on the night of December 24, 2007, he observed Danny R., whom Gonzales knew "from the neighborhood," talking on a cell phone. Gonzales heard Danny R. tell the person on the other end of the telephone conversation to come to the factory because some "flakes" were working there. Soon, four other youths arrived at the factory, including respondent. Gonzales recognized them as Martin R., Carlos L., Ishmael M., and respondent. Danny R. and the other four youths then ran toward the factory and the victim, who was driving a forklift. The victim attempted to flee, but Carlos L. caught him and threw him to the ground. All five offenders, including respondent, began kicking and punching the victim without pause for approximately two minutes. Ishmael M. dropped a piece of concrete on the victim's head. Gonzales observed Adolfo Z., a sixth offender, appear. Gonzales identified Adolfo Z. as a known member of the Latin Kings street gang. As the six offenders beat the victim, they continuously yelled: "F*** him up!" After the beating, all six offenders ran away, leaving the victim on the ground. That night, the police questioned Gonzales at his home, but he did not tell them what he observed because relatives of respondent were watching the police interview witnesses, and Gonzales was afraid of retaliation. Later that night, he called the police on his own and went to the police station with his girlfriend, Juliana Flores, to inform them of what he had observed. Gonzales later identified all six offenders in photo arrays and identified all of the offenders except Carlos L. in actual lineups at the police station. He never observed a lineup with Carlos L. in it.

¶ 9 The State proffered that eyewitness Juliana Flores, Gonzales' girlfriend, would testify to the same facts as Gonzales. Flores also observed one of the offenders strike the victim with a baseball bat, but the State did not proffer whether Flores would be able to identify which offender used the bat. When the police arrived at her and Gonzales' home, she did not say anything because she knew that all six offenders were members of the Latin Kings street gang, and she feared retaliation. Flores also identified all six offenders in a photo array and identified respondent, Ishmael M., Martin R., and Danny R. in a lineup.

¶ 10 The State proffered that eyewitness Fernando Garcia, also known as "Chino," resided near the factory and would testify as follows. Roughly one month prior to December 24, 2007, Garcia observed Martin R. and Danny R. outside the tortilla factory. Martin R. and Danny R. yelled gang slogans at two unnamed individuals who happened to walk past the factory, then Martin R. and Danny R. tried to start a fight with the two individuals. The two individuals ran toward the factory to escape Martin R. and Danny R., and the employees locked the factory doors after the two individuals entered. When Martin R. and Danny R. could not enter the factory, they began breaking the windows of the employees' vehicles. On the night of December 24, 2007, Garcia heard someone talking outside his window. He recognized the voice as belonging to Danny R. He heard Danny R. saying something to the effect of "Come on, one of the factory workers is out there. Let's go f*** him up." Garcia went to his window and observed Carlos L., Martin R., Ishmael M., and respondent, all of whom he knew by name or nickname. He also knew that all five offenders were members of the Latin Kings. Garcia also observed the beating, and observed Carlos L. strike the victim with a concrete block. Adolfo Z. arrived and joined in the beating of the victim as the offenders yelled: "F*** him up" and "Kill him." After the six offenders ran away, Garcia exited his home and observed one of the victim's co-workers. When the police questioned Garcia that night, he did not tell them what he had observed because he was afraid of retaliation from the relatives of the offenders. Garcia called the police on December 26, 2007, and went to the police station to inform the police of what he had observed. Garcia identified all six offenders in a photo array and an actual lineup. Garcia also observed the prior incident involving Martin R., Danny R., and the two unnamed individuals.

¶ 11 The State proffered that Sielvia Ortiz, Garcia's wife, would testify to the same facts as Garcia. She also observed Adolfo Z. reach into the victim's pants and jacket pockets once the victim was unconscious and remove his wallet. Ortiz recognized all six offenders and knew that they were members of the Latin Kings, and she later identified Danny R., Martin R., Ishmael M., and respondent in a photo array, and in a lineup identified all of the offenders except Adolfo Z. as being involved in the beating. She identified Adolfo Z. in a lineup as someone she believed to be involved in the beating, but could not be 100% sure.

¶ 12 The State proffered that Dr. Mitra Kalelkar, a deputy chief medical examiner for Cook County, performed the autopsy of the victim on December 28, 2007, and that she opined that the victim died from cranial cerebral injuries as the result of a trauma.

¶ 13 On April 9, 2008, the judge found probable cause for the charges of first-degree murder. The next stage of the EJJ prosecution proceedings determined whether there was clear and convincing evidence that sentencing under the Criminal Code would be inappropriate. The State offered into evidence respondent's arrest record for burglary in 2006, showing that the State did not prosecute the charges.

¶ 14 Respondent offered documents issued from the juvenile detention center, including certificates of completion for anger management, risk reduction, and substance abuse classes, and awards for good behavior and academic achievement. Respondent proffered that if his teacher, Ms. Newsome, were to testify at trial, she would state that respondent has difficulty with subjects like reading comprehension, but he is "working very hard" to overcome his difficulties. Finally, respondent introduced a report prepared by licensed clinical social worker Elizabeth Kooy. The report stated that respondent was small for his age and outlined his home life. Respondent lived with his mother and siblings on the second floor of a walk-up building, and respondent's father and the father's girlfriend lived on the first floor. The report indicated that respondent, his mother, and his siblings did not communicate with the father, despite living in the same building.

¶ 15 The judge found that respondent's prior delinquent or criminal history was "non-existent," and further found that he was required by statute to give greater weight to that factor. The judge found that respondent's home life was "chaotic," although he also found that respondent had not been the victim of abuse or neglect

¶ 16 The judge also found that the offense was extremely serious, and that all of the offenders were "egging each other on," and the judge was mandated to give that factor greater weight. The judge found that respondent personally used his hands and feet and a broken baseball bat to strike the victim, and that the offense had been aggressive and premeditated.

¶ 17 The judge determined that treatment within the juvenile justice system was advantageous to the programs and facilities of the adult system. The judge found that there was not a reasonable likelihood that respondent could be rehabilitated before age 21, in part because his "chaotic" family situation and the fact that he was out of his home after midnight "in the presence of gangbangers," some of whom were members of respondent's family. The judge ultimately concluded that there was no clear and convincing evidence that an adult sentence would not be appropriate, and he granted the motion to designate the case as an extended jurisdiction juvenile prosecution. The case was then transferred back to the trial court.

¶ 18 Before trial, the State stated that it was not able to now locate two of the witnesses it had included in its proffer before the judge. The missing witnesses were (1) Juan Gonzales and (2) Juliana Flores. Gonzales and Flores were the only witnesses who had observed respondent use a baseball bat to attack the victim, and the State moved to strike the language from the charging statement asserting that respondent used a baseball bat to strike the victim, and amend it to state that he used his feet and hands. The trial court granted the motion.

¶ 19 At trial, eyewitnesses Fernando Garcia and Sielvia Ortiz testified as the State had previously proffered. Dr. Mitra Kaelkar testified that she performed the autopsy and that the victim died from cranial cerebral injuries.

¶ 20 On December 4, 2009, the jury found respondent guilty of first-degree murder. As noted, after hearing aggravation and mitigation, the trial court sentenced respondent to the Department of Juvenile Justice until his twenty-first birthday, and ordered respondent to serve a minimum of five years' imprisonment before he could be placed on parole. The trial court also sentenced respondent to a 20-year adult sentence to be stayed, pursuant to the EJJ prosecution statute, on the condition that he did not violate the provisions of his juvenile sentence. At the sentencing, the assistant public defender stated that the sentencing order had been "drafted by [the public defender]." The trial court declined to explain the terms and conditions of how the adult sentence would be triggered, stating that it would "not attempt to explain to you when and how this State's sentence could kick in. Your lawyers will do that." However, the trial court made it clear that if respondent did not "follow all of the rules and regulations," he would serve both the juvenile and adult sentences.

¶ 21 ANALYSIS

¶ 22 I. Designation of Proceeding as an Extended Jurisdiction Juvenile Prosecution

¶ 23 Respondent first argues that the trial court erred in designating his first-degree murder proceeding as an EJJ prosecution. Respondent's argument largely relies on the fact that the State did not prove at trial several of the factors that the judge relied on to designate the case as an EJJ prosecution. Thus, respondent claims that the State's proffer was unsubstantiated and untrue. As a result of the judge's reliance on the State's erroneous proffer, respondent argues that his 20-year adult sentence should be vacated. The State responds (1) that respondent's arguments are based on misrepresentations of the record, and (2) that respondent's trial counsel did not object to the State's proffer during the prosecution hearing or during the trial, and thus, respondent's argument is forfeited. The State also argues that the trial court appropriately considered and weighed all relevant factors during the prosecution hearing, and it was not an abuse of discretion for the trial court to designate these proceedings as an EJJ prosecution.

¶ 24 On January 25, 2008, the State filed a motion to designate the proceeding as an EJJ prosecution. When the juvenile court designates a case as an EJJ prosecution, the minor subject to the prosecution is entitled to a jury trial. 705 ILCS 405/5-810(3) (West 2008). If the trial results in a guilty verdict, the trial court must impose a juvenile sentence and an adult sentence, staying the adult sentence on the condition that the minor not violate the provisions of the juvenile sentence. 705 ILCS 405/5-810(4) (West 2008).

¶ 25 The EJJ prosecution statute provides that the State's Attorney may file a petition, at any time prior to the commencement of the minor's trial, to designate the proceeding as an EJJ prosecution. 705 ILCS 405/5-810(1)(a) (West 2008). The petition must allege the commission by a minor 13 years of age or older of any offense which would be a felony if committed by an adult. 705 ILCS 405/5-810(1)(a) (West 2008). If the judge assigned to hear and determine petitions to designate the proceeding as an EJJ prosecution determines that there is probable cause to believe that the allegations in the petition and motion are true, there is a rebuttable presumption that the proceeding shall be designated as an EJJ prosecution. 705 ILCS 405/5-810(1)(a) (West 2008). The judge shall enter an order designating the proceeding as an EJJ prosecution proceeding unless the judge, after evaluating the factors listed below, makes a finding based on clear and convincing evidence that sentencing under Chapter V of the Code of Corrections would not be appropriate for the minor:

"(b) The judge shall enter an order designating the proceeding as an extended jurisdiction juvenile proceeding unless the judge makes a finding based on clear and convincing evidence that sentencing under the Chapter V of the Unified Code of Corrections would not be appropriate for the minor based on an evaluation of the following factors:

(i) the age of the minor;

(ii) the history of the minor, including:

(A) any previous delinquent or criminal history of the minor,

(B) any previous abuse or neglect history of the minor, and

(C) any mental health, physical and/or educational history of the minor;

(iii) the circumstances of the offense, including:

(A) the seriousness of the offense,

(B) whether the minor is charged through accountability,

(C) whether there is evidence the offense was committed in an aggressive and premeditated manner,

(D) whether there is evidence the offense caused serious bodily harm,

(E) whether there is evidence tmhein or possessed a deadly weapon;

(iv) the advantages of treatment within the juvenile justice system including whether there are facilities or programs, or both, ...


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