Appeal from the Circuit Court of Cook County No. 08 CR 12569 (02) The Honorable William G. Lacy, Judge Presiding.
PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Pucinski concurred in the judgment and opinion.
HYMAN PRESIDING JUSTICE
¶ 1 Sixteen years old at the time the crime was committed, defendant Arsenio Willis was tried as an adult as required under the Illinois Juvenile Court Act of 1987 (705 ILCS 405/5-130 (West 2010)). Section 5-130 of that Act mandates automatic transfer to criminal court of 15- and 16-year-olds charged with certain Class X felonies. A jury found Arsenio guilty of first degree murder with a firearm and aggravated battery with a firearm (accountability). The trial court sentenced him to 63 years in the adult prison system. A crucial issue in this appeal is the constitutionality of section 5-130 of the Juvenile Court Act (705 ILCS 405/5-130 (West 2010)), particularly following three recent United States Supreme Court cases recognizing the fundamental differences between juvenile offenders and adults.
¶ 2 Arsenio also argues:
(i) the State failed to prove him guilty beyond a reasonable doubt;
(ii) the State's closing argument prejudiced him by misrepresenting the level of proof required to find him accountable, disparaging his counsel, and misrepresenting the evidence;
(iii) his 63-year sentence is unconstitutionally excessive and disproportionate to his codefendant's 53-year sentence; and
(iv) the trial court failed to make a Krankel inquiry (People v. Krankel, 102 Ill.2d 181 (1984)) into his counsel's allegation of his own ineffectiveness.
¶ 3 Although we find the precedent regarding the constitutionality of the Juvenile Court Act's automatic transfer troubling, we choose to follow it at this time because the recent United States Supreme Court cases on which Arsenio relies do not convince us otherwise. In addition, we affirm Arsenio's convictions for first degree murder and aggravated battery with a firearm (accountability). The evidence, when viewed most favorably to the prosecution, supports a finding of guilt beyond a reasonable doubt on both of Arsenio's convictions. Two eyewitnesses identified Arsenio and his codefendant as the only individuals with guns and as firing the guns at the time the victims were shot.
¶ 4 As to the State's closing arguments, we find the State adequately confined its arguments to the evidence and the reasonable inferences to be drawn from that evidence. Nor did the State misrepresent the burden of proof or the evidence and did not disparage Arsenio's counsel. And, based on the trial court's comments during sentencing, we uphold Arsenio's sentences as a proper exercise of the sentencing court's discretion.
¶ 5 Finally, following a thorough review of the record, we hold the trial court failed to conduct a preliminary inquiry into the factual basis of Arsenio's posttrial claim of ineffective assistance of trial counsel as required by Krankel. The trial court should have engaged in a discussion with Arsenio or, considering Arsenio's age, his defense counsel concerning the defense counsel's claim and later, the spontaneous withdrawal of that claim. We remand for a Krankel hearing.
¶ 6 Background
¶ 7 Defendant Arsenio Willis and codefendant David Hill, both 16-year-olds, were charged with four counts of the first degree murder of Romaz Lucas and one count of attempted first degree murder of Charles Barrows. Arsenio and Hill were tried in simultaneous jury trials. Arsenio was found guilty of first degree murder with a firearm and aggravated battery with a firearm. He was sentenced to consecutive terms of 33 years for the first degree murder conviction, with 15 years for statutory firearm enhancement, and 15 years for aggravated battery with a firearm conviction.
¶ 8 A cousin of Romaz Lucas', Romeo McCollum, testified that on the morning of May 16, 2008, he, Lucas, and Charles Barrows went to McCollum's grandmother's house at 5347 West Race where, along with others, they played dice on the patio in the backyard. Around 3 p.m., Arsenio, Hill, and Demario Williams arrived. Lucas asked Williams for the $100 that he claimed Williams owed him. Hill stepped in and told Lucas that he "wasn't getting nothing." McCollum, facing Hill, saw Hill pull out a gun. Lucas told Hill to put the gun down and, "Let's fight like men." McCollum testified that Hill's gun was nearly parallel to the ground and pointed at Lucas at the time of Hill's first shot. Lucas tried to wrestle the gun away from Hill, when another shot went off, but McCollum could not tell who fired it.
¶ 9 McCollum testified that Arsenio had been sitting on the stairs by the gate when the fight began. McCollum saw Arsenio fire his gun at Lucas while Lucas lay on the ground, and Arsenio fired more than once. On hearing gunshots, the occupants of the backyard scattered in all directions. As McCollum tried to help the mortally wounded Lucas, he saw Hill running away along with Arsenio.
¶ 10 McCollum testified he saw no one with a weapon other than Hill and Arsenio. He could not recall if more shots were fired after he ran to Lucas. But, when confronted with his grand jury testimony, he acknowledged he may have told the grand jury that while leaning over Lucas, he heard a few more shots come from the same area as the original shots. The day after the shooting, McCollum identified Arsenio and Hill in separate photo arrays as "the guys that shot [his] cousin."
¶ 11 Charles Barrows testified that he was playing dice in the backyard, and although he was not paying attention to the conversations, recalled hearing something said about Williams owing Lucas money. Burrows testified Hill interjected himself into the conversation before pulling a gun from his pocket, precipitating a fight between Hill and Lucas, with Lucas struggling to get the gun out of Hill's hand. The gun fired while pointed toward Lucas's legs. Everyone scattered, said Barrows, and additional gunshots went off. Burrows saw Arsenio "shooting in the yard, " and believed Arsenio was trying to help his friend Hill get away. As Hill ran, Burrows saw Arsenio shooting at the people still there. He heard three gunshots.
¶ 12 Burrows testified that Arsenio fired the shot that hit the side of his body. Burrows ran out to the alley before collapsing and could not recall whether Arsenio stuck around or not. Burrows testified the only guns he saw in the backyard belonged to Arsenio and Hill. Burrows knew Arsenio had shot him because only Arsenio was shooting in the backyard at the time.
¶ 13 Detectives interviewed Burrows at the hospital, where his injuries required a month-long stay. From a photo array, Burrows identified Arsenio as the individual who shot him and Hill as the individual who first displayed a gun and fought with Lucas. In a lineup on June 15, 2008, Burrows identified Arsenio as the individual "shooting in the yard, " and who shot him, and identified Hill as the individual who was "upping the gun."
¶ 14 Demario Williams testified that on May 16, 2008, while on his way home with his friend, Arsenio, they came across Hill who told Williams about the dice game. When he arrived at the dice game, Williams was wearing headphones, and he testified he did not initially hear what Lucas said to him. Williams recalled removing the headphones, and telling Lucas that he did not have the money to pay him back, but would pay when he did. At this time, Arsenio was sitting by the stairs leading to the back porch. Williams put his headphones back on, and as he was about to leave, saw Lucas approach Hill, and the two engage in a conversation. Hill had his hands in his pockets.
¶ 15 Williams saw Hill pull a gun from his right pocket as Lucas was "coming towards" him. Williams testified that before seeing the gun in Hill's hand, he did not know Hill had a gun. He said Hill raised his arm at a 30–degree angle, but did not point the gun at anyone. The last thing Williams heard before leaving the backyard was Lucas saying, "What do you need a gun for? We can fight." Williams said he heard nothing else due to the headphones. The last thing he saw before leaving the backyard was Lucas reaching for Hill's gun. Williams heard only one shot. He did not see Hill shoot Lucas or see Arsenio with a gun.
¶ 16 On the sound of a single gunshot, Williams ran toward his mother in the front yard, and at her request, went inside the house. The next day Williams identified Hill from a photo array.
¶ 17 Demario Williams's mother, Sheila Williams, testified that she lived with her four sons at the house. At 3 p.m., she was on her front porch with her sister, brother, some of her children, and neighbors when her son, Demario Williams, arrived with Arsenio and Hill. She told them about the dice game in the backyard. The front porch is about 15 feet from the alley where the backyard gate is located. About five or six minutes later, she heard a single gunshot come from the backyard and went into the alley on the side of the house toward the side gate to see what happened. There, she saw Demario, wearing his headphones, running toward her. She told her son to go inside the house.
¶ 18 She saw Arsenio fall from her fence and, as he did, he turned his head and made eye contact with her. She testified the butt of the gun was in his right hand, which was elevated and moving. When she saw Arsenio fall, she did not hear a gunshot. She turned and went back toward her house, and that is when she saw someone, whom she could not identify, run to the back fence and try to climb over it. With her back toward the backyard, she heard a second gunshot. Then, a third and possibly a fourth. She testified that initially she heard one gunshot and later, a group of shots. She saw Lucas in the alley with her sister holding him in her arms; he had been shot. Rose Elam was standing next to them. She said she did not see Hill with a gun that day.
¶ 19 Sheila Williams was confronted with her grand jury testimony from June 11, 2009, in which she testified that she saw Arsenio fall with his right hand elevated and shooting toward the backyard. She testified she remembered the questions before the grand jury, but could not recall giving the answers. On cross, she admitted she testified before the grand jury that she saw Arsenio shooting a gun into the backyard.
¶ 20 The day after the shooting, Shelia Williams identified Arsenio and Hill in photographic arrays. She returned to Area 5 Headquarters on June 5, 2008, and identified Hill in a physical lineup as having been in her backyard on the day of the shooting. That same day, she spoke with detectives and an assistant State's Attorney (ASA) concerning what she had witnessed on May 16. The ASA asked permission to put her statement in writing, which at trial was identified by Shelia as People's Exhibit 17. Initially, Sheila said she did not recall saying in her statement that she saw Arsenio coming out of the gate backwards and seeing his arm jerking as he fired the gun. Despite testifying that she did say that to the ASA, she could not remember "what exactly happened at what particular time."
¶ 21 Shelia testified that Arsenio was a friend of her son's and often at her house. She admitted that she did not want anything "bad" to happen to Arsenio.
¶ 22 ASA Maryann Planey testified that on June 11, 2009, she spoke with Sheila Williams about the shooting, and brought her before the grand jury. Planey read to the jury from Shelia Williams's grand jury testimony, in which she testified that she saw Arsenio "falling out of the backyard with his right hand elevated, " and "his arm was jerking [as] he was shooting toward the back of the yard." She also saw the handle of the gun.
¶ 23 Another witness, Rose Elam lived on the first floor of 5347 West Race. On May 16, around 3 p.m., she was in the front yard with her grandchildren when she saw two boys pass her and go to the backyard. She testified that three or four minutes later she heard a gunshot, and ran to her grandchildren, telling them to get under the porch. Then she went toward the back of the house and, on her way, saw Sheila Williams, who was either in the back or heading that way. She also saw the same two boys coming toward her. Elam did not see anyone with them. Hill was running out of the back first, followed closely behind by the other boy.
¶ 24 The gunshots had stopped by the time Elam saw Hill running toward her. She heard only two gunshots. She saw a gun in Hill's hand as he tried to put it in to the side of his waistband; the other boy had a gun tucked down the side of his pants. Both boys went east on Race Street. When she saw the bleeding Lucas running out of the yard, she went to help him. Elam also testified she had seen Hill playing with the same gun in the front of the house on both Monday and Friday the week before the shooting.
¶ 25 On May 20, 2008, Elam met with detectives at Area Five. She identified Hill and Arsenio from photographic arrays as the two boys she saw on May 16. She told the detectives that one of them was wearing a red jersey and the other, a black, hooded sweatshirt, at the time of the shooting, and that the one wearing the red jersey was trying to hide a gun. Elam told Detective Valkerner that after hearing the gunshots, she clearly observed the face of the boy wearing the red jersey as he walked past her, but did not see the face of the boy wearing the black sweatshirt. On June 5, 2008, Elam returned to Area Five and identified Hill in a lineup.
¶ 26 Following Elam's direct examination, defense counsel moved for a mistrial arguing Elam said Arsenio had a gun for the first time during her trial testimony. Defense counsel's motion was denied and the court advised counsel to cross-examine her on the issue if he wished.
¶ 27 Chicago police forensic investigator Peter Larcher testified he collected the physical evidence at the scene, including two blood swabs, one from the alley and one from the backyard; a cartridge case; and articles of clothing. The cartridge, which resembled a .22-caliber bullet, was unmarked and no latent impressions suitable for comparison were found. Chicago police evidence technician Hill Caldbeck testified that on May 17, he went to 5515 West Hirsh, an address other than where the shooting occurred, to recover a weapon which was inside a plastic bag lying in the alley. He recovered a revolver with three bullets.
¶ 28 Cook County Assistant Medical Examiner Valerie Arangelovich performed an autopsy of Lucas. He received two gunshots–a right chest wound and right thigh wound. Arangelovich recovered a deformed, medium-caliber bullet from Lucas's body. She found no evidence of close– range firing. Arangelovich opined the cause of Lucas's death was multiple gunshot wounds and the manner of death was homicide.
¶ 29 Forensic scientist Brian Parr was qualified as an expert in the field of firearm and tool mark identification. He examined the cartridge case recovered by Officer Larcher, the revolver recovered by Officer Caldbeck, and the bullet recovered by medical examiner Arangelovich from Lucas's body. Parr opined the recovered firearm was a .38 special caliber revolver and the fired bullet was not fired by the firearm. The fired cartridge case was of a .22-caliber long rifle.
¶ 30 The court denied Arsenio's and Hill's motions for directed verdicts. Both defendants declined to testify on their own behalf.
¶ 31 Arsenio entered into evidence the stipulated testimony of Detectives Toraskowitz, Valkner, and Gilger, and ASA Tristian. Detective Toraskowitz would testify that when he interviewed Elam on May 16, she did not say that Arsenio possessed a firearm or that she saw Hill with a firearm before the May 16 incident. Detective Valkner would testify that Elam did not tell him that she saw Arsenio with a firearm. Further, Detective Valkner would testify that Elam told him that when she saw Hill with a handgun, he was wearing a red jersey and attempting to conceal the handgun under his right armpit. Detective Gilger and ASA Tristian would testify that on June 5, 2008, Elam gave a written statement in their presence and that she did not state that she saw Arsenio with a firearm.
¶ 32 The jury found Arsenio guilty of first degree murder and aggravated discharge of a firearm. The jury also determined that Arsenio was armed with a firearm during the commission of the offense of first degree murder.
¶ 33 Arsenio was sentenced to consecutive terms of 33 years for the first degree murder conviction, plus 15 years for the statutory firearm enhancement, and 15 years for his aggravated battery with a firearms conviction. Codefendant Hill was sentenced to a term of 28 years for the first degree murder conviction, plus 15 years for the statutory firearm enhancement, and 10 years for his aggravated battery with a firearms conviction. The court denied Arsenio's motion to reduce his sentence.
¶ 34 Arsenio Willis timely appealed.
¶ 35 ANALYSIS
¶ 36 We will first address the constitutional arguments Arsenio raises concerning the automatic transfer provision of the Juvenile Court Act. Second, we will address his arguments regarding the effectiveness of his trial counsel as it relates to People v. Krankel, 102 Ill.2d 181 (1984), and its progeny. Finally, we will address the remainder of his arguments, including the sufficiency of the evidence, the propriety of the State's closing arguments, and the constitutionality of his sentence.
¶ 37 Automatic Transfer Provision of the Juvenile Court Act
¶ 38 Arsenio challenges the constitutionality of the automatic transfer provision of the Illinois Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/5-130 (West 2010)), which statutorily excludes 15- and 16-year-olds charged with certain crimes from the jurisdiction of the juvenile court. Arsenio argues the automatic transfer provision violates federal and state due process, the eight amendment's prohibition against cruel and unusual punishment, and the proportionality clause of the Illinois Constitution. Arsenio also claims the statute is unconstitutional as applied.
¶ 39 Ever since the Illinois legislature enacted "An Act to regulate the treatment and control of dependent, neglected and delinquent children" (1899 Ill. Laws 131)—or the Illinois Juvenile Court Act—on July 1, 1899, Illinois has been a national leader in the field of juvenile justice. The first juvenile court in the country was located in Chicago across the street from Hull House, an effective and prominent social service agency founded by social reformer Jane Addams. It was Addams who rallied the movement for a separate juvenile justice system, which would remove children from being tried and imprisoned by the adult criminal system. During the intervening decades, however, the pendulum has swung back and forth on the legal system's handling of juvenile offenders as adults.
¶ 40 One fundamental shift that has occurred nationwide, and in Illinois since the 1980s, is the proliferation of juvenile transfer laws increasing the number and variety of offenses eligible for transfer to criminal courts while lowering age restrictions. Of the three primary methods of transfer, judicial waiver (case filed in juvenile court and evidentiary hearing based on articulated standards), prosecutorial discretion (case filed in either juvenile or criminal court without hearing), and statutory exclusion (case by operation of law heard by criminal court), section 5-130 of the Juvenile Court Act adopts the statutory exclusion method, subjecting juvenile offenders, based on their alleged criminal activity involved, to the adult criminal system and all that entails.
¶ 41 Section 5-130(1)(a)(i) of the Juvenile Court Act provides, "[t]he definition of delinquent minor under Section 5-120 of this Article shall not apply to any minor who at the time of an offense was at least 15 years of age and who is charged with first degree murder." 705 ILCS 405/5-130(1)(a)(i) (West 2010). Under section 5-130(1)(c)(i), the trial court had "available any or all dispositions prescribed for that offense under Chapter V of the Unified Code of Corrections." 705 ILCS 405/5-130(1)(c)(i) (West 2010). Section 5-4.5-20(a) of the Unified Code of Corrections provides that the sentencing range for first degree murder is 20 to 60 years of imprisonment. 730 ILCS 5/5-4.5-20(a) (West 2010). Accordingly, under the automatic transfer provision of section 5-130, once Arsenio was charged with first degree murder, his case proceeded in criminal court, where he was subject to a minimum 20-year prison sentence, without any initial consideration for his age, an analysis of his mental culpability or any other relevant information such as his propensity for rehabilitation.
¶ 42 Arsenio acknowledges that the Illinois Supreme Court has previously decided that the automatic transfer provision at issue here complies with constitutional requirements (see, e.g. People v. J.S., 103 Ill.2d 395, 405 (1984); People v. M.A., 124 Ill.2d 135, 147 (1988)), but argues that the court's rationale must be revisited in light of three recent United States Supreme Court cases, Roper v. Simmons, 543 U.S. 551 (2005), Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, __ U.S.__, 132 S.Ct. 2455 (2012), as well as the renewed trend to treat juvenile offenders differently than adult offenders. Arsenio argues that based on the precedents of Roper, G ...