G.O., In re

• Decision Date: 31 March 1999
• Docket Number: No. 1-98-0956,1-98-0956
• Citation: 710 N.E.2d 140,304 Ill.App.3d 719,237 Ill.Dec. 717
• Parties: , 237 Ill.Dec. 717 In the Interest of G.O., a minor (The People of the State of Illinois, Petitioner/Appellee, v. G.O., Respondent/Appellant).
• Court: United States Appellate Court of Illinois

Page 140

710 N.E.2d 140

304 Ill.App.3d 719, 237 Ill.Dec. 717

In the Interest of G.O., a minor (The People of the State of Illinois, Petitioner/Appellee, v. G.O. Respondent/Appellant).

No. 1-98-0956.

Appellate Court of Illinois First District, Fourth Division.

March 31, 1999.

Craig O. Donaldson, Winston & Strawn, Chicago, for Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, Kenneth T. McCurry, and Susan R. Schierl Sullivan, Assistant State's Attorneys, of counsel), for Appellee.

Justice WOLFSON delivered the opinion of the court:

This case requires us to examine the way juveniles are treated by our judicial system when they are charged with serious offenses. G.O., a 13 year-old, was charged with first degree murder and tried in the Juvenile Court. The statute under which he was charged (705 ILCS 405/5-33(1.5) (West 1996)) does not provide for a jury trial. G.O., through his lawyer, asked for one anyway. His request was denied. He was found delinquent for first degree murder and committed to the Department of Corrections, Juvenile Division.

We now find the failure to provide G.O. with a jury trial deprived him of equal protection

of the law, as guaranteed by the Fourteenth Amendment of the United States Constitution and Article I, Section 2 of the Illinois Constitution of 1970. We also find the confession used against him at trial was unlawfully obtained.

FACTS

On October 4, 1997, around 10:15 p.m., G.O., a 13 year-old, was arrested for murder in the shooting death of Rafael Kubera (Kubera).

The prosecution filed a Petition for Adjudication of Wardship, charging G.O. with, inter alia, first degree murder. The charge was based on G.O.'s accountability for a shooting by another. On January 6, 1998, G.O.'s attorney filed a formal jury demand and said:

" * * * I do know that jury trials are not allowed mostly in juvenile cases but in two instances they are; that being habitual juvenile offender and violent juvenile offender. And the reason jury trials are allowed is because, of course, those minors are facing determinant sentence.

In the event that [G.O.] is found delinquent, he, too, is serving a determinant sentence. And I would ask therefore that his case be heard before a jury of his peers."

The court denied his motion.

Before trial, G.O. moved to suppress two incriminatory statements. The motion was denied.

At trial, the prosecution called five witnesses: Chicago Police Officer John Sebeck, eyewitnesses Maggie Borzecka and Juan Gomez, shooting victim Thomas Skutnik, and Chicago Police Detective Edward Cunningham (Cunningham). The prosecution also offered stipulated testimony from Kubera's mother and medical examiner Dr. James Filkins. G.O. did not call any witnesses and offered testimony by Youth Officer Alicia Ayala (Ayala) from the suppression hearing as evidence.

The trial court found G.O. delinquent for first degree murder and committed him to the Department of Corrections. This appeal followed.

DECISION

1. Constitutionality of Section 5-33(1.5)

G.O. contends section 5-33(1.5) is unconstitutional because it deprives him of his right to a jury trial. He asserts his right to a jury trial is protected by substantive due process, procedural due process, and equal protection of the law.

We approach these contentions with the understanding that all statutes are presumed constitutionally valid. People v. Shephard, 152 Ill.2d 489, 499, 178 Ill.Dec. 724, 605 N.E.2d 518 (1992). The party challenging a statute bears the heavy burden of clearly establishing its constitutional infirmities. People v. Kimbrough, 163 Ill.2d 231, 237, 206 Ill.Dec. 84, 644 N.E.2d 1137 (1994). Doubts about validity are resolved in favor of the statute. Shephard, 152 Ill.2d at 499, 178 Ill.Dec. 724, 605 N.E.2d 518.

At the same time, it has been more than 30 years since the Unites States Supreme Court made the sixth amendment right to a jury trial applicable to the States through the Fourteenth Amendment's Due Process Clause. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). Jury trials, said the Court, are " * * * fundamental to the American scheme of justice." Duncan, 391 U.S. at 149, 88 S.Ct. at 1447, 20 L.Ed.2d at 496.

Before the adjudicatory hearing in this case began, G.O. asked for a jury trial, orally and in the form of a written jury demand. The trial court denied the request, understandably relying on the statute's silence in the matter. No Illinois precedent required a jury trial. The request by G.O.'s counsel was sketchy at best. Still, the issue was raised and is before us without claim of waiver or procedural default. We must decide it.

a. Due Process

G.O.'s due process arguments face an insurmountable obstacle in this intermediate court. The United States Supreme Court has held due process does not assure the right to trial by jury in State juvenile court delinquency proceedings. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971). One of the Court's reasons:

"If the jury trial were to be injected into the juvenile court system as a matter of right, it would bring with it into that system the traditional delay, the formality, and the clamor of the adversary system and, possibly, the public trial." McKeiver, 403 U.S. at 550, 91 S.Ct. at 1988, 29 L.Ed.2d at 663.

A year earlier, the Illinois Supreme Court found the Due Process Clause of the Fourteenth Amendment does not require a jury trial in juvenile court proceedings. In re Fucini, 44 Ill.2d 305, 255 N.E.2d 380 (1970). The court's decision rested on the belief that applying " * * * the full panoply of adult rights * * * to juvenile proceedings would strip those same proceedings of the unique benefits which they were designed to obtain." Fucini, 44 Ill.2d at 309, 255 N.E.2d 380.

Our Illinois Supreme Court has held firmly to the view expressed in Fucini. See People ex rel. Carey v. Chrastka, 83 Ill.2d 67, 74, 46 Ill.Dec. 156, 413 N.E.2d 1269 (1980)(The right to trial by jury is not, as a general proposition, constitutionally required in juvenile proceedings); In re Beasley, 66 Ill.2d 385, 390, 6 Ill.Dec. 202, 362 N.E.2d 1024 (1977)(Respondent in juvenile proceedings is not entitled to admonition of right to jury trial); People ex rel. Carey v. White, 65 Ill.2d 193, 2 Ill.Dec. 345, 357 N.E.2d 512 (1976)(Trial court erred when it found a statutory right to jury trial in delinquency proceedings).

The passage of time has weakened the underpinnings of McKeiver and Fucini. Today's juvenile justice system is a far cry from the aspirations of Jane Addams. The new Juvenile Justice Reform Provisions of 1998 (Pub. Act 90-590, eff. January 1, 1999 & January 1, 2000 (amending, inter alia, Juvenile Court Act of 1987, 705 ILCS 405/1-1 et seq. (West 1996))) continues a trend toward criminalizing juvenile court delinquency proceedings. Children charged with serious offenses are treated in a manner that " * * * further underscores the movement away from the rehabilitative ideal to the assumption that age and the potential for rehabilitation do not matter. All that matters is punishment." T. Geraghty, Centennial of The Juvenile Court: What Would Jane Addams Think?, Chicago Bar Record 50-51 (January 1999).

We agree with G.O. that his sentence in this case is punitive and determinate. He was committed to the Department of Corrections, Juvenile Division, until his 21st birthday, without possibility of parole or furlough for five years. The statute contains no provision for good time credit. The judge had no discretion in the matter. It is difficult to find in this sentence the "unique benefits" referred to in Fucini, 44 Ill.2d at 309, 255 N.E.2d 380, or the "idealistic prospect of an intimate, informal protective proceeding" described in McKeiver, 403 U.S. at 545, 91 S.Ct. 1976.

A similar kind of sentence for violation of the Habitual Juvenile Offender Act (705 ILCS 405/5-35 (West 1996)) has been described by our supreme court as " * * * determinate confinement, which has as its purpose the protection of society, in addition to the rehabilitation of the individual." Chrastka, 83 Ill.2d at 74, 46 Ill.Dec. 156, 413 N.E.2d 1269.

True, in a separate setting, our supreme court referred to a delinquency proceeding as " * * * protective in nature and the purpose of the [Juvenile Court] Act is to correct and rehabilitate, not to punish." In re W.C., 167 Ill.2d 307, 320, 212 Ill.Dec. 563, 657 N.E.2d 908 (1995). But the issue in W.C. was whether a written post-trial motion was required to preserve alleged errors in delinquency proceedings. The court held it was not. Here, we address the sentencing required after a finding of delinquency.

The State suggests characterization of section 5-33(1.5) as punitive is inaccurate because the accused juvenile receives the protection of a closed proceeding. Of course, it is the mandatory sentence that is punitive, not the number of people attending the hearing. In addition, the Juvenile Court Act provides for presence of the news media at any hearing. 705 ILCS 405/1-5(6) (West 1996); see In re J.S., 267 Ill.App.3d 145, 151, 204 Ill.Dec. 30, 640 N.E.2d 1379 (1994).

We have examined the legislative debates that led to enactment of section 5-33(1.5). The intent was to adopt a punitive approach to a serious societal dilemma: how to deal with violent youthful offenders. See 88th Ill.

Gen. Assem., House Proceedings (November 15, 1994) at 24 (statements of Representative Dart); House Proceedings (December 1, 1994) at 80 (statements of Representative Homer); Senate Proceedings (December 1, 1994) at 46 (statements of Senator Dudycz). We make no comment on the rightness or wisdom of the end product. We simply note the General Assembly has succeeded in its purpose.

Whether the fundamental fairness component of the Due Process Clause now requires a reconsideration of the soundness of McKeiver and Fucini is not a decision for us to make. The great weight of...