People v. Omar M. (In re Omar M.)

• Citation: 2012 IL App (1st) 100866,363 Ill.Dec. 77,974 N.E.2d 874
• Decision Date: 23 August 2012
• Docket Number: No. 1–10–0866.,1–10–0866.
• Parties: In re OMAR M., a Minor (The People of the State of Illinois, Petitioner–Appellee, v. Omar M., Respondent–Appellant).
• Court: United States Appellate Court of Illinois

2012 IL App (1st) 100866

974 N.E.2d 874

363 Ill.Dec. 77

In re OMAR M., a Minor (The People of the State of Illinois, Petitioner–Appellee, v. Omar M., Respondent–Appellant).

No. 1–10–0866.

Appellate Court of Illinois,

First District, Sixth Division.

June 29, 2012.

Rehearing Denied Aug. 23, 2012.

Michael J. Pelletier, Alan D. Goldberg, and Heidi Linn Lambros, State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg and Annette Collins, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice GORDON delivered the judgment of the court, with opinion.

[363 Ill.Dec. 84]¶ 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.

[363 Ill.Dec. 85]¶ 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 coworkers. 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%...