Court of Appeals of Illinois, First District, Sixth Division
Appeal from the Circuit Court of Cook County. No. 09 JD 4630 Honorable Colleen F. Sheehan, Judge Presiding.
JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Lampkin and Justice Hall concurred in the judgment and opinion.
¶ 1 Dionte J., age 14, was charged in juvenile court with one count of felony murder predicated on mob action in connection with the beating death of 16-year-old Derrion Albert on September 24, 2009. Upon motion by the State, the trial court designated the case as an Extended Jurisdiction Juvenile Prosecution (EJJP). After a jury trial, defendant was found guilty. At sentencing, the trial court committed defendant to the Illinois Department of Juvenile Justice until his 21st birthday, and imposed a 30-year adult sentence under the EJJP statute that defendant would not have to serve unless he violated his juvenile sentence.
¶ 2 On this direct appeal, defendant makes several claims, including challenges based specifically on the circumstances of his conviction, as well as constitutional challenges to the EJJP statute in general.
¶ 3 With respect to the specific circumstances of his case, defendant claims: (1) that the trial court committed reversible error by refusing to instruct the jury on misdemeanor battery, where battery is a lesser-included offense of mob action and, thus, a lesser-included offense of felony murder predicated on mob action; (2) that this court must vacate defendant's conviction for felony murder, where the same acts that formed the basis for murder also formed the basis for the predicate felony of mob action; and (3) that the trial court erred in designating defendant's case as an EJJP case, where defendant was only 14 years old with no history of delinquency, his acts involved no premeditation or use of a weapon, and he was amenable to treatment as a juvenile offender.
¶ 4 In making his first claim that the jury should have received an instruction on misdemeanor battery, defendant argues that the supreme court's decision in People v. Davis, 213 Ill.2d 459 (2004), was wrongly decided. As defendant well knows, the appellate court is in no position to entertain an argument that the supreme court should be reversed. In Davis, the supreme court held that, when determining whether an offense is a lesser-included offense, we must compare it to the offense of felony murder and not to the underlying felony. Davis, 213 Ill.2d at 475-76. To be lesser, the offense must have an equal or lesser intent. Davis, 213 Ill.2d at 477. Since felony murder does not require a particular intent, an offense that does require a particular intent, such as battery, cannot be a lesser offense. Davis, 213 Ill.2d at 477. Although defendant does not like this precedent, it is the law in our state, and he knows that we must follow it.
¶ 5 In his second claim that the same act formed the basis of both murder and the underlying felony, defendant stresses his one punch of the victim, Derrion Albert. However, this argument ignores his other acts, such as his picking up a wooden board and swinging it at another person besides the murder victim, and his chasing of other victims.
¶ 6 As for his third claim that the trial court erred in designating his case as EJJP, we cannot find that the trial court abused its discretion in light of the seriousness of the offense.
¶ 7 Defendant also claims that the EJJP statute must be struck down as unconstitutional because it violates a juvenile defendant's due process rights, and because it is unconstitutionally vague. Specifically, defendant argues: (1) that the EJJP statute violates a juvenile defendant's right to due process because it subjects him to the increased punishment of a conditional adult sentence without a jury finding, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000); and (2) that it is unconstitutionally vague because it does not provide fair warning of the conduct that will invoke the imposition of the adult sentence. Both of these constitutional arguments were rejected by this court in a prior opinion, In re Omar M., 2012 IL App (1st) 100866, and the supreme court recently cited with approval our Apprendi reasoning. In re M.I., 2013 IL 113776, ¶¶ 43-46.
¶ 8 For these reasons, we must affirm.
¶ 9 BACKGROUND
¶ 10 I. Petition for Adjudication of Wardship
¶ 11 The State's petition for adjudication of wardship, filed on November 6, 2009, originally charged defendant with three counts of first-degree murder and one count of mob action. However, on the eve of trial, the State made a motion to nol-pros the one count of mob action, as well as two of the first-degree murder counts. This left only one count of first-degree murder remaining.
¶ 12 The one remaining count charged defendant with felony murder predicated on mob action, and stated in full:
"On or about September 24, 2009, in violation of Section 9-1(a)(3) of Act 5 of Chapter 720 of the Illinois Compiled Statutes, as amended, Dionte [J.] committed the offense of First Degree Murder, in that the above-named minor, without lawful justification, while committing a forcible felony, Mob Action, in violation of Section 720 ILCS 5/25-1(a)(1) of Act 5 of Chapter 720, struck Derrion Albert about the body and stomped on Derrion Albert's head and killed Derrion Albert with his fists, a piece of wood and his feet, during the commission of a forcible felony, to wit, mob action, Derrion Albert, and thereby causing the death of Derrion Albert."
¶ 13 The petition charges only one predicate felony for the above felony murder count, namely, mob action, and it charges only one of the three subsections of the mob action statute, subsection (a)(1). That subsection has since been amended but, in 2009 when this offense was committed, it stated that: "(a) Mob action consists of any of the following: (1) the use of force or violence disturbing the public peace by 2 or more persons acting together and without authority of law[.]" 720 ILCS 5/25-1(a)(1) (West 2008).
¶ 14 The felony murder statute states: "A person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death: *** (3) he is attempting or committing a forcible felony other than second degree murder." 720 ILCS 5/9-1(a)(3) (West 2008).
¶ 15 II. Pretrial Proceedings
¶ 16 On February 1, 2010, the State filed a motion to permit prosecution under the adult criminal laws of Illinois. The motion was filed pursuant to section 5-805 of the Juvenile Court Act of 1987, which permits the trial court to make a discretionary transfer from juvenile court to adult court, after it considers such factors as the age and history of the minor, the circumstances of the offense, the advantage of treatment within the juvenile justice system, and the security of the public. 705 ILCS 405/5-805(3) (West 2008) ("Discretionary transfer").
¶ 17 At the beginning of the pretrial hearing held on March 19, 2010, the State indicated that it also had a second motion, which it made in the alternative. The State moved to designate this case as an EJJP case, if the trial court denied its motion for a discretionary transfer. Before ruling on the State's motions, the trial court first held a probable cause hearing and granted the State leave to proceed by proffer.
¶ 18 The prosecutor stated that, if called to testify under oath, Deon Blandon would testify that, on September 24, 2009, he was a student at Fenger Academy, and that there was a fight at school that day between a boy known as "B.J., " who lived in the Altgeld Gardens housing development and who is known as a "Garden Boy, " and Eugene Bailey, who lived in an area adjacent to Fenger Academy and who is known as a "Ville Boy." Those youths who live in Altgeld Gardens are known as "Garden Boys, " and those who live in the area adjacent to Fenger Academy are known as "Ville Boys." Blandon later learned that there was going to be a fight after school near the railroad tracks on 111th Street. After school, he went to that area and observed Carl, also a "Ville Boy" and B.J. fighting and a large fight ensued. Blandon observed Eric Carson, another "Ville Boy, " strike Derrion Albert, another Fenger Academy student, in the back of the head with a wooden board. As Albert was trying to recover from the blow, defendant struck Albert in the face with his fist and Albert fell to the ground. A crowd of "Garden Boys" then surrounded Albert and beat him.
¶ 19 Dominic J., if called to testify under oath, would testify that he was a Fenger Academy student and defendant's cousin, and that a fight occurred at school on September 24, 2009, between B.J. and Eugene Bailey. After school, he and defendant walked with three other boys toward the 111th Street railroad tracks. The three other boys were Eric, Carl and Dantrell, and they "associated" with the "Ville Boys." After they reached the tracks, B.J. swung at Carl and the two began fistfighting. Dominic J. observed Eric hit Albert in the head with a wooden board, and Albert fell down. As Albert was trying to rise, defendant hit Albert in the face with his fist. Then others began striking and kicking Albert.
¶ 20 Dominic J. would further testify that he watched a videotape of the events which accurately portrayed the events that he had observed. The State moved, without objection from the defense, for leave to play the two-minute videotape before the court, which was granted.
¶ 21 Dr. Doherty, if called to testify under oath, would testify that he is a medical physician who, on September 24, 2009, treated Albert who died that same day from the injuries sustained. Dr. Hilary McElligott, if called to testify, would testify that she is the assistant medical examiner who examined Albert's head and determined that he died of cerebral injuries caused by blunt head trauma. Detective William Sullivan, if called to testify, would testify that he arrested defendant. The State then rested.
¶ 22 The defense then made the following proffer. Vonkeshia J., if called to testify, would testify that she is defendant's mother and that his customary route home from school is to walk east on 111th Street and then past the railroad tracks. The defense then rested and, after listening to argument from both sides, the trial court made a finding of probable cause.
¶ 23 The trial court then considered the State's motion of discretionary transfer. In support of its motion, the State relied on the proffer that it had already made. In response, defense counsel moved to admit the juvenile court's social investigation pretrial report, which the trial court admitted into evidence without objection. After both sides rested, the court heard argument on the motion. The State argued that, with respect to a transfer motion, the two most important factors were any prior criminal record of the minor and the seriousness of the present offense; and that, although this minor had no prior record, the court should grant the State's motion because of the seriousness of the offense. The defense argued that defendant had thrown one punch and that was the extent of his involvement. The matter was continued and on April 9, 2010, the trial court denied the State's motion to transfer and granted the State's motion to designate the case as an EJJP case.
¶ 24 III. Trial
¶ 25 The State's evidence at trial consisted primarily of two videotapes of the incident and the testimony of nine witnesses, including: the victim's cousin; a teacher at Fenger Academy; four eyewitnesses to the mob action; two investigating police officers; and the assistant medical examiner who performed the autopsy.
¶ 26 The State's first witness, Latanya Albert, was the victim's cousin who identified a photograph of the victim when he was alive. The parties then stipulated that, if she was shown a photograph of the victim taken after he died, she would identify it as a photograph as he appeared in death.
¶ 27 The State's next witness, T-awanda Piper,  testified that she had been employed for 11 years as a "youth worker" at the Agape Community Center at 342 West 111th Street, Chicago. The center is located near the location of the fight which occurred on September 24, 2009, a half mile west of Fenger High School. At 2:45 p.m. on September 24, a receptionist at the center informed Piper that there was a fight outside the center, and Piper instructed the receptionist to call 911 and inform the dispatcher that there was "mob action on 111th Street." When Piper observed the center's security camera, she observed "a lot of kids" on 111th Street. Then, looking through a window near the receptionist's desk, she observed that "there were two groups of kids, looking as though they were going to physically agress [sic] one another." The minors were 10 to 15 feet from the window. Piper then left the window for about a minute and a half, and went upstairs to find other staff members. When she returned to the window, she observed "a young man hit a boy over the head with a board, " and then another young man hit the same boy in the face with his fist. After the boy fell to the ground, other young men surrounded him and started to kick him.
¶ 28 Piper testified that she exited the center in order to help the injured boy, whom she later learned was Derrion Albert. After she exited, she observed several youths attempting to lift Albert up. A vehicle approached, and she asked a man in the vehicle to help her with the victim. She then carried Albert into the center, with the assistance of the unidentified man, and laid him on the floor, called for an emergency medical service and checked his neck and a wrist for a pulse. Although she did not feel a pulse in the carotid artery in his neck, she felt a "pretty high" pulse in his wrist. She then learned the victim's name from his high school identification tag, and called out his name. Albert gasped for breath, as though he was trying to respond. Then, the ambulance arrived and transported him to a hospital.
¶ 29 Piper testified that she later viewed two video recordings of the fight. First, she identified State's Exhibit No. 4 as a DVD which she had observed. Next, she identified State's Exhibit No. 5 as the videotape from the center's surveillance camera. Piper testified that both video recordings fairly and accurately depicted the fight that she had witnessed. Exhibit 4 was received into evidence without objection; and the State requested and received the court's permission, without objection, to publish ...