People v. M.D.

JUSTICE CLARK

delivered the opinion of the court:

In this case, the State appeals from the trial court’s denial, and the appellate court’s affirmance of the denial, of the State’s motion to permit prosecution of the minor respondent, M.D., as an adult under the criminal laws of Illinois instead of under the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 701 et seq.). A divided appellate court affirmed the judgment of the circuit court of Cook County (109 Ill. App. 3d 790), and we granted the State’s petition for leave to appeal (87 Ill. 2d R. 315(a)).

Section 2 — 7(3) of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 702 — 7(3)) provides:

“If a petition alleges commission by a minor 13 years of age or over of an act which constitutes a crime under the laws of this State, and, on motion of the State’s Attorney, a Juvenile Judge, designated by the Chief Judge of the Circuit to hear and determine such motions, after investigation and hearing but before commencement of the adjudicatory hearing, finds that it is not in the best interests of the minor or of the public to proceed under this Act, the court may enter an order permitting prosecution under the criminal laws.” Ill. Rev. Stat. 1981, ch. 37, par. 702-7(3).

In the instant case, the trial judge denied the State’s petition requesting that the minor be tried as an adult, and the appellate court affirmed, holding that the trial judge had not abused his discretion by denying the State’s motion. It is from this judgment that the State appeals.

The sole issue before this court is whether the trial judge abused his discretion by denying the State’s motion to permit the prosecution of the respondent as an adult. We find that the trial judge did abuse his discretion, and we reverse the judgments of both the circuit and appellate courts.

A petition for adjudication of wardship was filed in the circuit court on January 28, 1981, alleging that respondent was delinquent in that on January 26, 1981, he allegedly committed murder by shooting and killing two individuals, Gregory and Vincent Jackson.

During the transfer hearing, Officer Ralph Vucko testified regarding a statement the respondent had made to him the night of the shootings. Respondent told Vucko the following. On January 26, 1981, at about 6:30 p.m., respondent allegedly went to the home of Izear Sewell, also known as “Tookie.” Respondent alleged that his purpose in going to see Sewell was to ask Sewell for help because he had been hit across the face with a pistol by Gregory Jackson one week before. It appears that respondent went to Sewell’s house armed with a gun and looking for, as he put it, “revenge.” Sewell, according to respondent, agreed to help respondent and stated that they should “gun up.” Se-well evidently had a gun on his person because respondent said that they both left without going into Sewell’s house.

Respondent and Sewell then walked to a laundromat where they found Gregory Jackson. Respondent urged Se-well to “talk to the dude, he jumped on me a couple of times, man.” Apparently, Sewell was telling Gregory Jackson to leave the respondent alone when, according to respondent, Gregory took a stick out of a garbage can and began walking towards Sewell and respondent. Vucko interviewed three eyewitnesses, none of whom saw the stick Gregory Jackson was alleged to have had. Gregory allegedly called Sewell a “punk.” Sewell shot Gregory, and respondent allegedly shot at Gregory, missing him. Respondent alleges that Vincent Jackson, Gregory’s brother, also came towards them, and respondent stated that he shot Vincent four times. Sewell and respondent then ran to a nearby apartment where they hid the guns they had used on a shelf.

Vucko testified that the respondent did have scabs and marks on his face when he gave his statement and that respondent told him that they were the result of being hit in the face with a gun by Gregory Jackson a week earlier. Vucko testified that respondent also told him that the Jackson brothers were members of a gang called the “Q-Dogs,” a subgroup of a gang called the “Vice Lords.” According to Vucko, respondent told him that “he was not in a gang but he was harassed.” Vucko testified that he had not heard of the “Q-Dogs,” but that he was not assigned to the gang crimes unit of the police department and consequently was not familiar with all the names of the gangs in the district.

An investigator with the office of the public defender, Jeffrey Greenfield, also testified at the transfer hearing. Greenfield had interviewed a friend of the respondent’s, Bernard Strowder. Strowder was alleged to have told Greenfield the following. Strowder had known respondent three or four years and the Jackson brothers for about two years. The Jacksons were, Strowder alleged, members of the “Q-Dogs,” which was a subgroup of the “Vice Lords.” On one occasion Gregory Jackson and another boy allegedly forced respondent and Strowder to give them money at gunpoint. On another occasion, Gregory Jackson was alleged to have hit the respondent with a stick, telling him “you owe me.” Strowder also told Greenfield that there was an occasion where respondent had been pistol-whipped by Gregory and that Gregory and Vincent Jackson had pushed respondent off of his bike and struck him on another occasion. Greenfield testified that he had heard of the gang called the “Q-Dogs.”

Respondent’s mother testified at the probable cause hearing before the judge that was presiding at the transfer hearing. She testified that on January 24, 1981, respondent and her nephew told her that Gregory Jackson and another boy had just threatened respondent with a gun. It appears that a microwave oven which was stolen from a railroad car was the subject of the dispute. Gregory Jackson wanted the oven, which he apparently believed the respondent had in his possession. Whether the dispute over the microwave was the actual reason for the alleged pistol-whipping on January 24,1981, is unclear from the record.

In any event, the respondent’s mother testified that the respondent had come upstairs to their apartment missing a shoe and that he and her nephew told her that Gregory Jackson had threatened the respondent with a gun. The mother also stated that she had sent the respondent to the store the morning after the incident and he had returned with his eye and face swollen. Respondent told his mother, according to her, that Gregory Jackson had beaten him up. Respondent’s mother called the police, and a tape recording verifying her call was presented to the judge. The mother testified that after she called the police they never came and she did not bother to call them again.

Three reports were made in connection with this case— a social investigation report prepared by the respondent’s probation, officer, a psychological report, and a psychiatric report.

Vergus Hurks, respondent’s probation officer, had prepared the social investigation report regarding the respondent, and he testified at the transfer hearing as to his findings. Hurks related the following. Respondent was bom on July 11, 1965, and was lñVz at the time of the hearing. Respondent lived at home with his mother and nine brothers and sisters in a public housing project, and his mother was receiving assistance from the Illinois Department of Public Aid. According to Hurks’ report, the mother felt that the respondent’s peer group associates were a negative influence in his life, resulting in his delinquency and truancy. The mother told Hurks that she had separated from the respondent’s father in 1977 and that there was no male role model for the boy in their home. (There was conflicting evidence in the record as to whether respondent’s stepfather was living in respondent’s home. This particular point will be discussed later in this opinion.)

Hurks came in contact with the respondent when respondent was placed on probation for one year because of a finding of delinquency based on his commission of a burglary. Hurks testified that the probationary period was satisfactorily terminated on January 20, 1981. Hurks also testified that respondent had eight prior “station adjustments” dating from August of 1979 to October of 1980. Three of these “station adjustments” occurred during respondent’s probationary period. “Station adjustments” involve situations where the police, after taking the juvenile to the police station, decide that the juvenile will not be prosecuted. Hurks testified that two of the respondent’s station adjustments were for burglary, one for batteiy, three for theft, one for possession of stolen property, and one for attempted theft. Station adjustments have been held to be “probative and relevant because they enable the trial court to determine the proper disposition.” In re McClinton (1978), 63 Ill. App. 3d 956, 959.

During his testimony, Hurks explained, “The mother cannot do anything with him. She cannot make him go to school, and that has been one of our biggest problems. I referred the case to the Garfield Park Comprehensive Health Center. They have been working with him apprasdmately six to eight months. He lost interest in that agency and failed to keep his appointment with that agency.” Since the respondent had been placed in the Andy Home for the murder of the Jackson brothers, Hurks had reports on his school performance. Respondent had failed almost all of his courses. One report Hurks read stated that respondent “refuse[d] to do any work, and he frequently spen[t] his time disrupting others by talking to them.” Hurks testified that he had not found the respondent to show any remorse in regard to the murders or any of the other crimes he had committed. Hurks characterized the respondent as a shy, passive person and a follower. He also testified that he believed that the respondent had rehabilitative potential and could benefit from the programs the juvenile division of the Department of Corrections had which rewarded juveniles if they cooperated and followed the rules and regulations. He also believed that the respondent could benefit from the school programs at the juvenile division of the Department of Corrections. Hurks conceded that the respondent would go to the juvenile division and receive the benefit of the juvenile educational facilities up until his 21st birthday, even if he was tried as an adult.

Kimberly Merrill, a court psychologist who examined and tested the respondent, prepared a second report concerning the respondent. In her report, Merrill stated that the respondent scored in the mentally deficient range on the tests which she administered. She reported that the respondent, although 15, was only in the eighth grade, that his performance in school was poor, and that his attendance record revealed chronic truancy. Merrill indicated in her report that the test scores which placed the respondent in the mentally deficient range should be interpreted with caution. The reason she believed the scores should be interpreted with caution was because the respondent’s situation, being charged with two murders, was causing him some anxiety which she felt could alter his performance. Merrill described the respondent as “an extremely immature, even primitive, youngster who [was] decompensating under the stress of being in detention for murder.” She also described him as being “a young man whose ego development never progressed past an early stage.” She noted that his “sexual identity [was] very tenuous” and that he “sought to confirm his masculine identity through association with older boys and the use of weapons.” According to her report, the data indicated “underlying anger, considerable impulsivity and an almost childish fascination with violence and instruments of violence.” Merrill concluded her report by stating: “[Respondent] is dangerous, but he is not a hardened delinquent. He has reached the age of fifteen without acquiring appreciable socialization. He needs structure, limits and firm moral instruction. Long term residential placement is recommended, and [respondent] needs to understand that he can expect punishment for wrong doing. It should be emphasized that the moral environment provided by this placement will play a critical role in the development of [respondent’s] emerging personality.”

The last report received by the court was authored by Dr. Jaime Trujillo, a psychiatrist. Trujillo interviewed the respondent in the Detention Home. He described the respondent as coming to the interview “in a happy mood with a special gait, moving around in a very tough way.” In this report, Trujillo noted that when he asked the respondent why he was in the Detention Home that “[respondent] said in a proud voice that it was on a count of murder.” According to Trujillo, respondent said that he was raised “pretty much being allowed to do whatever he pleasefd]” but “[o]n occasions *** [his] mother ha[d] interfered with that.” The respondent told Trujillo that his stepfather also interfered on occasion. Trujillo believed that the respondent’s stepfather was the respondent’s father figure at home and that this man “apparently still lives with the mother.” The respondent described his stepfather as a factory worker, who was a nice person and a good provider.

In his report, Trujillo evaluated the respondent’s moral judgment. He stated, “As far as his moral judgment is concerned, as gathered from hypothetical situations, [respondent] claims that if anyone does anything to him which he doesn’t like he is entitled then to take revenge because no one has the right to do anything which he doesn’t like.” Respondent told the psychiatrist that he “enjoys drinking and that as a matter of fact he drinks so much that he passes out and sleeps for several hours.” The report states that he also “recognizes some enjoyment of marijuana but denies any involvement with other kind[s] of drugs.”

The psychiatrist also interviewed the respondent’s mother. According to Trujillo, the mother told him that respondent was very well behaved until he was 11 years old. After that time, the mother stated, he “started staying away from home, fighting, and going to the railroad tracks to steal.” The reason the mother felt that his behavior changed was because “he got involved with older persons who have been in prison and who are involved with a lot of delinquent activities.” The mother stated that the respondent had “come home completely drunk and probably high on drugs.”

The last part of Trujillo’s report was a section containing the doctor’s impressions and recommendations. In this section, Trujillo writes,

“If [respondent] is allowed to do whatever he pleases, things go OK but if he is frustrated, or if someone does something wrong he is entitled to some revenge and that revenge is not measured by any values or codes and it can be as big as destroying the other person without any concerns or remorse or sense of guilt for whatever happened because he feels justified because something was done to him in a wrong way at some particular point.”

Trujillo further describes the respondent as a “dangerous boy,” someone who he feels “should be treated in a closed, secured environment where good disciplinary measures are imposed upon him.” He also recommended that “[i]n this placement he should have education aimed [at] overcoming his learning difficulties” and “individual therapy to try to deal with his lack of values and self-centeredness.” The placement, Trujillo recommended, should be long enough for there to be a change in his behavior. Trujillo, in concluding his report, stated, “I believe that if he [respondent] is sent back to the streets he will be in bigger trouble because there isn’t anything you can say to him to make him reason in a better way as far as his behavior is concerned.”

After considering the reports that were submitted, the testimony and the arguments of counsel, the judge held: “Looks to me that the two victims were taking advantage of [respondent] and I believe that ‘Tookie’ used him, perhaps, to put him to work for him. And the mind — the understanding of the mind is such, I think, that he needs the services of the Juvenile Court System and the motion of the State will be denied.”

As the appellate court correctly noted, a court of review in a case like the instant one must determine whether the trial court abused its discretion in making its decision to deny the State’s motion to transfer the respondent to adult jurisdiction. 109 Ill. App. 3d 790, 794, citing In re Burns (1978), 67 Ill. App. 3d 361.

While the decision on permitting prosecution of a juvenile under the criminal law is a matter of judicial discretion, that discretion is limited and controlled by the standards set forth in the Juvenile Court Act. (See People v. Taylor (1979), 76 Ill. 2d 289.) Section 2 — 7(3Xa) of the Juvenile Court Act (Ill. Rev. Stat. 1981, ch. 37, par. 702— 7(3Xa)) lists six factors which the trial court must consider in reaching its decision on whether to prosecute a particular minor as an adult under the criminal laws. Section 2— 7(3Xa) provides in pertinent part:

“In making its determination on a motion to permit prosecution under the criminal laws, the court shall consider among other matters: (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 particularly available to the Juvenile Court for the treatment and rehabilitation of the minor; and (6) whether the best interest of the minor and the security of the public may require that the minor continue in custody or under supervision for a period extending beyond his minority.” Ill. Rev. Stat. 1981, ch. 37, par. 702 — 7(3)(a).

In the instant case, the trial judge made no formal statement of reasons or conventional findings of fact. This court stated in People v. Taylor (1979), 76 Ill. 2d 289, that, “while no formal statement of reasons or conventional findings of fact are necessary, the juvenile judge must take care to preserve a record sufficiently explicit so that his exercise of discretion may be reviewed meaningfully.” 76 Ill. 2d 289, 301.

The trial judge in the case at bar was not at all specific as to the reason or reasons he decided that the respondent should remain in the juvenile division of the Department of Corrections. However, we will examine the evidence in the record relating to each of the six factors and determine if the trial judge did abuse his discretion. At this juncture, it is interesting to note that the Juvenile Court Act has been amended so that currently 15- and 16-year-old juveniles are automatically tried as adults for the crimes of murder, armed robbery, rape and deviate sexual assault. (Pub. Act 82 — 973, eff. Sept. 8, 1982, Ill. Rev. Stat., 1982 Supp., ch. 37, par. 702 — 7(6Xa).) Respondent would therefore be automatically tried as a adult if the alleged murders in this case had occurred after September 8,1982.

The first factor the court was to consider was whether there was sufficient evidence upon which a grand jury might be expected to return an indictment against the respondent. There is no question that there was sufficient evidence upon which a grand jury could return an indictment for murder against the respondent. The respondent never argued that point since he had made a written statement to the police admitting the killings and there were at least three eyewitnesses to the crime.

The second factor to consider is whether there was evidence that the alleged offense was committed in an aggressive and premeditated manner. We cannot agree with the appellate court that the evidence concerning aggression and premeditation is unclear. The respondent left his home with a gun, elicited the aid of a friend who also had a gun, and hunted down the victims with the intention of getting “revenge.” Even though respondent alleges that he asked his friend to “talk to this dude,” that does not mean that there was no premeditation for the resulting murders, particularly in light of the fact that the respondent stated that Sewell said “let’s gun up,” before they went to find Gregory Jackson. Respondent’s claim that no shots were fired until Gregory Jackson came towards him and his friend with a stick does not necessarily justify the murders. None of the eyewitnesses to the incident ever saw a stick. The appellate court reasoned that since there was some evidence that the Jacksons had physically attacked respondent in the past, he was justified in arming himself when he went to find Gregory Jackson. We cannot agree with the appellate court’s reasoning. The respondent himself stated that he went to the laundromat with the gun to get revenge.

The third factor to be considered was respondent’s age. Even though respondent was 15 at the time of the shootings, his experience was that of someone way beyond 15 years. There was evidence in the record to demonstrate that the respondent had come in contact with the police on numerous occasions, including being on probation for one year for burglary. Respondent admitted drinking alcohol until he was intoxicated, using marijuana, and enjoying sex with two different girl friends. These facts lead us to believe that the respondent, although fairly young in years, was not a stranger to adult experiences. Besides the fact that, as we previously mentioned, the respondent would today automatically be tried as an adult under the Juvenile Court Act as amended (Ill. Rev. Stat., 1982 Supp., ch. 37, par. 702 — 7(6Xa)), it is also clear that other 15-year-olds charged with crimes less serious than murder have been tried as adults in the past. (See e.g., People v. Underwood (1978), 72 Ill. 2d 124.) The respondent cites two murder cases in which orders denying transfer of a minor to adult jurisdiction have been affirmed by the appellate court. They are In re R.L.L. (1982), 106 Ill. App. 3d 209, and In re Burns (1978), 67 Ill. App. 3d 361. In both of those cases, however, there were important mitigating factors which are not present in the instant case. In Bums, not only did the juvenile not personally kill anyone, she tried to persuade her boy friend not to stab the victim. She was determined by the court to be a juvenile who was in serious need of psychiatric treatment. Also, in R.L.L., the juvenile was severely disturbed and in need of long-term psychiatric care. Those cases are clearly distinguishable from the. case at bar.

The fourth factor to be considered is the previous history of the minor. It is undisputed, as we have stated previously, that the respondent had eight prior station adjustments in addition to being on probation for a year on a burglary charge. We believe these facts speak for themselves. It is clear that the respondent is very familiar with the criminal justice system.

The fifth factor to be considered is whether there are facilities particularly available to the juvenile division of the circuit court for the treatment and rehabilitation of the minor. We believe two points need to be raised in determining the weight to be accorded this factor. First, it is clear that if the respondent is transferred to the adult criminal courts and sentenced to imprisonment, he will still be confined in the juvenile division of the Department of Corrections until the age of 21, unless transferred to adult institutions at an earlier time after a hearing. (Ill. Rev. Stat. 1981, ch. 37, par. 705 — 10.) Second, there is an abundance of evidence in the record to establish the fact that although respondent was placed in programs in the juvenile division in the past, he was not benefitting from them in any recognizable way. The evidence in the record demonstrates that the respondent was not making an effort to cooperate or obtain the benefits the juvenile division had to offer. The respondent failed almost every course he took while placed in the Juvenile Detention Home, and it was reported that he was more of a distraction than anything else while present in the classroom. It was also reported that although respondent was given the opportunity to receive therapy and counseling at the Garfield Park Comprehensive Health Center, he lost interest and failed to keep his appointments. We believe these facts indicate that respondent could not really benefit from the programs which are particularly available to the juvenile court system.

Lastly, the court was supposed to determine whether the best interest of the minor and the security of the public required that the minor continue in custody or under supervision for a period extending beyond his minority. This case is a double-murder case. The respondent has been described as a person of lower than normal intelligence who is dangerous. The psychiatrist who examined him stated that if respondent were “sent back to the streets he [would] be in bigger trouble because there isn’t anything you can say to him to make him reason in a better way as far as his behavior is concerned.” We believe that the evidence at the transfer hearing established that respondent may, and will, continue to be dangerous to himself and the public after he reaches the age of 21, and that it is in the best interest of the respondent and the public that he be tried as an adult for the murders of Gregory and Vincent Jackson. We agree with the dissenting justice in .the appellate court that lack of intelligence and immaturity of personality in the commission of such a heinous crime does not entitle the respondent to the extraordinary protection and consideration of the juvenile court system.

In view of all the evidence presented in relation to each of the six factors the trial court was to consider in determining whether the respondent should be transferred to the criminal court for prosecution as an adult, we believe the trial judge clearly abused his discretion in denying the State’s motion to transfer. In this case, we find the evidence to be overwhelmingly slanted towards adult prosecution.

Accordingly, for all the reasons stated, we reverse both the circuit and appellate courts and hold that the respondent should be transferred to the criminal court for trial as an adult.

Judgments reversed; cause remanded, with directions.