People v. Patterson , 2014 IL 115102 ( 2015 )

Illinois Official Reports
Supreme Court
People v. Patterson, 2014 IL 115102
Caption in Supreme THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
Court: RONALD PATTERSON, Appellee.
Docket No. 115102
Filed October 17, 2014
Rehearing denied January 26, 2015
Held In a case in which a 15-year-old made a station-house confession and,
(Note: This syllabus after a transfer to criminal court, was convicted by a jury of three
constitutes no part of the counts of aggravated criminal sexual assault, the appellate court
opinion of the court but should not have found the confession involuntary and ordered a new
has been prepared by the trial where the totality of circumstances showed that, although the
Reporter of Decisions conduct of police may not have been exemplary, they made a
for the convenience of reasonable attempt to notify a concerned adult as required by statute
the reader.) and the conduct of the detective assigned as a youth officer was not
improper—challenge to constitutionality of automatic transfer statute
rejected.
Decision Under Appeal from the Appellate Court for the First District; heard in that
Review court on appeal from the Circuit Court of Cook County, the Hon. Ellen
Beth Mandeltort and the Hon. Thomas P. Fecarotta, Judges, presiding.
Judgment Appellate court judgment reversed.
Cause remanded.
Counsel on Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez,
Appeal State’s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz,
Annette Collins and Douglas P. Harvath, Assistant State’s Attorneys,
of counsel), and Hannah J. McKinney, law student, for the People.
Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg,
Deputy Defender, and Christopher Kopacz, Assistant Appellate
Defender, of the Office of the State Appellate Defender, of Chicago,
and Molly McPartland and Brad Kaye, law students, for appellee.
Scott F. Main and Julie L. Biehl, of Chicago, for amicus curiae
Children & Family Justice Center et al.
Joshua A. Tepfer, Molly Hall and Tara Thompson, of Chicago, and
Molly Wyler, law student, for amicus curiae Center on Wrongful
Convictions of Youth et al.
Justices JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Chief Justice Garman and Justices Freeman, Thomas, Karmeier, and
Burke concurred in the judgment and opinion.
Justice Theis dissented, with opinion.
OPINION
¶1 Defendant was 15 years old when he was charged with three counts of aggravated
criminal sexual assault. Pursuant to the Illinois automatic transfer statute (705 ILCS
405/5-130 (West 2008)), his case was transferred from juvenile court to criminal court,
where defendant was tried as an adult, convicted by a jury of all three counts, and sentenced
to a total of 36 years in prison. On appeal, the appellate court reversed defendant’s
convictions and remanded the cause for a new trial, holding that the circuit court of Cook
County had erred by admitting defendant’s confession. 2012 IL App (1st) 101573. The court
also concluded that evidence of the victim’s sexual history was admissible on remand under
the “constitutional necessity” exception to the state rape shield statute (725 ILCS 5/115-7(a)
(West 2008)).
¶2 Before this court, the State argues that the appellate court erred by excluding defendant’s
confession and finding that evidence of the victim’s sexual past was admissible on remand.
Defendant filed a cross-appeal, contending that his confession was also inadmissible because
his trial counsel provided ineffective assistance during the pretrial suppression hearing, an
issue not reached by the appellate court. Defendant also challenges the constitutionality of
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the automatic transfer provision (705 ILCS 405/5-130 (West 2008)) and asserts that his
sentence was excessive. We reverse the appellate court’s exclusion of defendant’s confession
and determination that evidence of the victim’s sexual history is admissible under an
exception to the rape shield statute, reject his ineffective assistance claim, and uphold the
constitutionality of the automatic transfer statute. Finally, we remand the cause to the
appellate court for its initial consideration of defendant’s excessive-sentence claim.
¶3 I. BACKGROUND
¶4 Defendant Ronald Patterson was a 15-year-old ward of the State of Illinois living in a
residential treatment facility when he committed a violent sexual assault on a 25-year-old
staff member, E.C. While E.C. was driving defendant home from a weekend family visit, he
forced her to pull the facility van into a deserted parking lot off the highway, where the
assault occurred. After the assault, the victim returned to the facility with defendant. Once
defendant was secured in his unit, the victim immediately reported the attack, and the police
were called.
¶5 Defendant was charged in Cook County circuit court with three counts of aggravated
criminal sexual assault. His case was automatically transferred to criminal court, and he was
tried as an adult, as required by statute (705 ILCS 405/5-130 (West 2008)). On defense
counsel’s motion, a fitness examination and hearing were held. At the hearing, both parties
stipulated to the testimony of the examining psychiatrist, Dr. Nishad Nadkarni. Dr. Nadkarni
found that defendant understood the charges against him, the court proceedings, and the role
of court personnel. Dr. Nadkarni concluded that defendant was sane when the offenses were
committed and did not suffer from a mental impairment limiting his ability to appreciate the
criminality of his actions or to understand his Miranda rights. Defendant was able to define
each of those rights accurately and was able to assist his trial counsel and behave
appropriately in court. The trial court subsequently found defendant fit to stand trial without
medication.
¶6 Defendant next filed a motion to suppress his inculpatory statement to the police, arguing
that the police youth officer did not contact defendant’s legal guardian, the Illinois
Department of Children and Family Services (DCFS), before he was interviewed and did not
“affirmatively” protect his rights. The motion also claimed his statement was involuntary
because he was a special education student with limited reading skills and comprehension
who was not given his Miranda rights before questioning. The motion did not allege, and
defense counsel expressly denied, “any type of coercion or duress” by the police.
¶7 At the suppression hearing, several witnesses testified, including the residential treatment
facility director, Stephen Kehoe. Kehoe stated that he spoke to two or three police officers
the night defendant was taken into custody at the facility at approximately 8:30 p.m. on
Sunday, December 14, 2008. Kehoe could not remember whether any of the officers asked
him for permission to speak to defendant, and he denied possessing sufficient authority to
grant permission, asserting that DCFS alone retained that authority. Kehoe did recall,
however, officers obtaining the name and phone number of defendant’s DCFS caseworker
the night defendant was taken into custody.
¶8 Detective Joe Kaminski also testified at the suppression hearing. He stated that he was
the youth officer assigned to defendant’s case and knew defendant was a resident of the
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treatment facility. After arriving at the police station on the night defendant was taken into
custody, Detective Kaminski briefly spoke to E.C. before talking to defendant. Kaminski
inquired about defendant’s grade in school but did not inquire about his participation in
special education classes. Detective Kaminski stated he called both Kehoe and defendant’s
caseworker shortly before 10 p.m. to notify them that defendant was at the Schaumburg
police station and was going to be questioned about the assault. When they could not be
reached, Kaminski left voicemail messages for them. Defendant’s caseworker did not return
his call for two days. Nonetheless, Kaminski confirmed with another officer prior to the start
of questioning that Kehoe had been notified that defendant had been taken to the police
station and that Kehoe had given the police permission to speak to defendant. Detective
Kaminski testified at trial that after defendant was questioned he again called Kehoe, who
confirmed that the police had permission to speak with defendant as well as to search the
facility’s van for evidence.
¶9 Kaminski described the role of a youth officer as advising defendant of his rights and
ensuring his understanding, as well as answering defendant’s questions. Before the police
interview, Detective Kaminski explained to defendant why he was at the station and read his
Miranda rights to him from a preprinted form at about 10 p.m., asking defendant to explain
each right in his own words. Defendant stated that he understood his rights and accurately
described each of them. The officer had defendant read the form waiving his rights aloud,
initial each sentence, and sign the form. The record does not indicate that defendant either
asked to speak to another adult or made any other request prior to the start of questioning.
¶ 10 A second detective, John Atamian, then interviewed defendant for about 45 minutes
about the alleged assault. Although Detective Kaminski remained in the room during
questioning, he did not participate. After the interview was over and defendant’s statement
was typed, it was read to defendant, who did not make any corrections. Defendant then read
the statement aloud and signed it at 11:15 p.m.
¶ 11 Defendant’s account of the events differed significantly. According to him, after he had
been at the Schaumburg Police Station for 30 to 45 minutes, the youth officer asked him if he
needed anything and questioning began shortly thereafter. He claimed he did not receive any
Miranda warnings until the interview was over and he had signed a typewritten statement.
He also asserted he did not read the statement before signing it. During the suppression
hearing, defendant did not claim that he had been threatened, mistreated, or coerced by the
police, that he failed to understand the interrogation process, that he had asked to speak to
another adult, or that he was a special education student with trouble reading and writing.
¶ 12 The trial court denied defendant’s motion to suppress his statement, finding both that the
youth officer had fulfilled his duty and that it was reasonable for the police to notify the
residential facility director of defendant’s arrest as he was a state ward and the facility “has
been run under the supervision of [DCFS]. So it would be reasonable to assume that the
director has some authority to act on behalf of DCFS. Particularly over people that are
residents in his residence hall that he directs.” The judge also provided general remarks
addressing his observations during the hearing, noting that it was “curious” that Kehoe’s
counsel attempted, but was not permitted, to sit in the witness box with him and describing
Kehoe’s inability to recall whether he gave the police permission to interview defendant as
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“interesting.” In addition, the judge noted that Kehoe never denied giving his permission
despite admitting that he had talked to three different officers that night.
¶ 13 The trial court expressly found Detective Kaminski’s testimony to be “very credible” and
emphasized that he had not participated in defendant’s questioning, while rejecting as
“ludicrous” defendant’s claim that he had not been read his Miranda rights until after he
signed the written statement. The court concluded that defendant’s rights had been properly
protected during questioning and that the police were not required to suspend their
investigation until defendant’s caseworker was notified “because then they would be
criticized for sitting on him for days.” In denying the suppression motion, the court found
that defendant understood his rights when he signed the waiver form, and that, under “the
totality of the circumstances,” his confession was voluntary.
¶ 14 The case proceeded to trial. The victim testified that defendant grabbed her arm and
forced her to take the next exit off the highway as she was driving him back to the facility
after his weekend family visit. At the time of the assault, defendant was 5 feet 10 inches and
weighed between 250 and 300 pounds, while the victim was 5 feet 2 inches and weighed 115
pounds. After taking the exit, defendant directed her to park in an empty lot in an industrial
area and give him the keys to the van. She managed to retain the keys and reached inside her
purse for her cell phone to call the facility for help, but defendant knocked the phone from
her hand. Throughout the assault, defendant told the victim not to make him hurt her, and she
testified that she feared for her life. She initially attempted to escape by opening the driver’s
side door and stepping out of the van, but defendant grabbed her coat and followed her out of
the vehicle. While returning the victim to the van, defendant pinned her against its sliding
door, holding her by the front of her neck as he opened the sliding door and shoved her
inside. She immediately tried to escape again, this time through the other sliding door, but
defendant caught her by the foot and pulled her back. At some point, the victim’s global
positioning system (GPS) was damaged, and the frayed cord fell onto the parking lot, where
it was later found by police.
¶ 15 Once back inside the van, defendant told the victim to remove her clothing. When she
refused, he forcibly removed her boots and jeans. He then ordered her to perform oral sex,
pushing her head down while gripping her by the hair and the back of her neck. He grabbed
the front of her neck and choked her until she opened her mouth. After 20 or 30 seconds,
defendant briefly stopped before choking her again as he forced her to perform the act a
second time. Next, defendant performed oral sex on the victim before engaging in vaginal
intercourse for 30 or 45 seconds. Throughout this time, defendant appeared nervous and kept
looking over his shoulder.
¶ 16 Shortly after that, he apologized and said he did not want to get in trouble. The victim
promised she would not tell anyone what happened, and he allowed her to dress. They
retrieved her cell phone as well as other items that had fallen out of her purse before she
drove the van back to the residential facility, arriving at about 6:30 p.m.
¶ 17 On the way into the facility, they passed one of the victim’s co-workers, and, after
defendant was secured behind locked doors, the victim ran back to her co-worker and
collapsed, sobbing. The co-worker carried the victim to the supervisor’s office, and the police
were called. The victim was taken back to the site of the assault before being examined at a
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hospital. She reported experiencing pain in her genital area and finding it very difficult to get
out of bed the next day.
¶ 18 The emergency room physician who performed the sexual assault examination testified
for the State. He had treated about 100 sexual assault victims and was qualified as an expert
in emergency medicine. In his medical report, he noted redness, abrasions, and a number of
fresh bruises on the victim’s left thigh, wrist, elbow, and waist or hip. An external genital
examination failed to reveal any injuries, a finding the physician explained was not unusual.
An internal examination, however, revealed some cervical redness. The physician was unable
to attribute the redness to a sexual assault. On cross-examination, the physician was unable to
identify any specific source of the redness.
¶ 19 The parties stipulated that the forensic report stated, “No DNA of Ronald Patterson was
found in the vaginal swab collected from [the victim].” During a subsequent sidebar, defense
counsel requested permission to question the doctor about the presence of DNA
(deoxyribonucleic acid) from someone other than defendant, indicating that the victim “had
recent intercourse, with someone else within 72 hours, knowing how far—that’s about how
long sperm last.” Counsel did not make an offer of medical proof about how long cervical
redness would have been present after consensual intercourse. The State objected to the
questioning, arguing the additional questions would violate Illinois’s rape shield law,
generally barring, in relevant part, any examination of the victim’s prior sexual history with
persons other than the defendant. The State argued that the DNA found was from the victim’s
boyfriend three days before the assault and did not provide a basis for granting defendant’s
request. The trial court barred defendant from eliciting testimony about the victim’s prior
activity to explain the redness because the physician “did not even trace it back to this
incident” and “did not say it was the result of a rape.” After the sidebar, defense counsel did
not make any additional inquiry about cervical redness or its potential persistence.
¶ 20 The investigating officers testified that the frayed cord to the victim’s GPS unit was
discovered in the parking lot where the assault occurred, while the GPS charger was still
inside the vehicle. In addition, the passenger side sun visor was torn from the ceiling and
found on the driver’s side floor. The side of the van was dirty, with visible smudges and
vague handprints outside the driver’s side door where defendant pinned the victim after she
tried to escape.
¶ 21 Detective Kaminski testified at trial, recounting portions of his suppression hearing
testimony and adding that he arrived at the residential facility around 9:15 p.m. and spoke to
the victim before she went to the hospital. He asserted that, as a trained youth officer, his
“responsibility was to first and foremost explain to [defendant] why he was at the
Schaumburg Police Department. After we got past that, then it was to read him his Miranda
warnings and to make sure that he understands what his Miranda warnings were.” He
determined defendant’s age, that defendant had lived at the residential facility for three years,
and that he was in ninth grade and could read. Detective Kaminski indicated it was not his
“job to give advice” to defendant and that he “made a reasonable attempt” to contact
defendant’s guardian before the interview began.
¶ 22 The officer who questioned defendant also testified at trial, stating that defendant, who
was not handcuffed at the time, gave two conflicting accounts of the incident. In the first
account, defendant claimed that the victim initiated the encounter, and he denied that
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intercourse occurred. He also denied leaving the van while it was in the parking lot. When
the officer said he would check for surveillance footage from the surrounding buildings,
defendant’s demeanor changed suddenly. His shoulders slumped, he hung his head, and he
disclosed that he had not been telling the truth. He then admitted committing the assault,
stating he had not meant to hurt the victim but had gotten angry because he had not taken his
medication. Defendant’s second statement was typed and read aloud before he signed it. The
statement noted that defendant was not threatened, coerced, or promised anything in return,
and his signature acknowledged that the statement was true, accurate, and voluntarily made
and that he previously had an opportunity to review and edit it.
¶ 23 Defendant testified in his own defense and refuted the inculpatory statements in the
confession. He asserted that the incident was consensual, without any struggle. He testified
that the victim simply exited the highway and parked in the lot without any explanation
before asking him to get into the backseat of the van. After he complied, she unzipped his
pants and performed oral sex for a few minutes before telling him it was time to return to the
facility. She told him that if he did not say anything, she would not either. They then returned
to the front seats, and the victim drove back to the facility. Defendant returned to his room,
and Director Kehoe and defendant’s therapist later came to get him from the dayroom and
take him to the lobby, where the police were waiting.
¶ 24 Defendant also described his interrogation at the police station, reiterating that he was not
given Miranda warnings until after the questioning. He denied knowing how the van or the
GPS unit was damaged or how the victim was injured. He also asserted that the police lied
about his confession. He maintained that he did not give the account memorialized in the
statement and that he was instructed to sign before reading it or receiving any Miranda
warnings.
¶ 25 To advance defendant’s consent defense, counsel questioned the victim’s credibility
during closing argument, asking the jury to consider why the victim was “wearing elastic
jeans that come down easily that might fall, and she doesn’t have any underwear on” while
working with teenage boys. He also asserted that the source of the cervical redness was never
established and emphasized the absence of any DNA from defendant to raise questions about
the validity of the victim’s story. Finally, counsel argued that the validity of defendant’s
confession was suspect because it was not videotaped and the police should have “wait[ed]
until Monday to get his guardian.”
¶ 26 After deliberating almost nine hours over two days, the jury found defendant guilty on all
three counts of aggravated criminal sexual assault, and he moved for a new trial, contending
that the police had not provided proper notice to his legal guardian. The trial court denied the
motion because “the police did make reasonable efforts to find a guardian,” assigned a youth
officer, and gave defendant “appropriate” Miranda warnings that he understood.
¶ 27 Defendant’s motion for a new trial also alleged that the court erroneously denied his
request to ask about the victim’s sexual history to suggest an alternative explanation for the
cervical redness. He contended that the additional questions were necessary because the jury
may have assumed the redness was caused by defendant if they did not know her boyfriend’s
DNA had been found. The State countered that defendant had extensively cross-examined
the emergency room physician and had been allowed to present his theory of the case
adequately. The trial court denied defendant’s motion for a new trial.
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¶ 28 During sentencing, evidence was presented that defendant had been exposed to cocaine
before birth and taken into DCFS custody as an infant before being adopted by another
family member. He had a long history of aggressive and violent behavior toward both his
family and others that resulted in several admissions to mental hospitals with widely varying
diagnoses, including depression, intermittent explosive disorder, oppositional defiant
disorder, bipolar disorder, and attention deficit hyperactivity disorder. In 2006, his adoptive
family voluntarily gave up custody to DCFS based on defendant’s aggression and mental
health needs.
¶ 29 The State’s aggravating evidence included a victim impact statement and reports of
defendant’s aggressive and violent behavior both toward residents and staff at the treatment
facility and while he was in custody awaiting trial. Defendant offered mitigating letters and
testimony requesting leniency due to his age, difficult childhood, and mental health issues.
After considering all the relevant factors, as well as defendant’s potential for rehabilitation
and the fact that he did not meet the statutory criteria for mental retardation, the trial court
sentenced defendant to three consecutive 12-year prison terms. The court subsequently
denied defendant’s motions for a new trial and to reconsider the sentence.
¶ 30 On appeal, defendant argued that the trial court’s denials of his suppression motion and
defense counsel’s request to introduce the victim’s sexual history were erroneous. He also
claimed defense counsel was ineffective for failing to offer evidence of his mental
impairment at the suppression hearing to establish the involuntary nature of his confession.
Finally, defendant contended that his sentence was excessive.
¶ 31 The appellate court reversed defendant’s convictions and remanded the cause for a new
trial, finding that his confession should have been suppressed because defendant’s parents or
another concerned adult had not been contacted before questioning and Detective Kaminski’s
actions conflicted with his role as defendant’s youth officer. 2012 IL App (1st) 101573,
¶¶ 37-39 (modified upon denial of rehearing Sept. 26, 2012). The court did not address
defendant’s claim that his trial counsel had been ineffective, however, instead initially
“tak[ing] into consideration Patterson’s severely limited intelligence and education” in its de
novo review of the suppression issue. 2012 IL App (1st) 101573, ¶ 35 (modified upon denial
of rehearing Sept. 26, 2012). The court also addressed the merits of defendant’s rape shield
claim, concluding that the trial court erred in excluding evidence of the victim’s sexual
history. 2012 IL App (1st) 101573, ¶ 45 (modified upon denial of rehearing Sept. 26, 2012).
¶ 32 The State filed a petition for rehearing, and the appellate court modified its opinion to
eliminate any consideration of defendant’s “severely limited intelligence and education,” but
it still did not directly rule on defendant’s ineffective assistance claim. 2012 IL App (1st)
101573, ¶ 35 (modified upon denial of rehearing Sept. 26, 2012). Applying a de novo
standard of review, the appellate court again suppressed defendant’s typewritten confession
as involuntary, based on the same rationale it used in its original opinion. 2012 IL App (1st)
101573, ¶¶ 38-40 (modified upon denial of rehearing Sept. 26, 2012). Based on this
disposition, the court did not reach the merits of defendant’s excessive sentence claim.
¶ 33 This court allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1,
2013). We also permitted amicus curiae briefs to be filed by the Center on Wrongful
Convictions of Youth et al., and by the Children and Family Justice Center et al. Ill. S. Ct.
R. 345 (eff. Sept. 20, 2010).
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¶ 34 II. ANALYSIS
¶ 35 Before this court, the State’s appeal raises two issues: (1) whether the appellate court
erred in suppressing defendant’s confession by concluding that: (a) a concerned adult was not
contacted pursuant to section 5-405(2) of the Juvenile Court Act of 1987 (705 ILCS
405/5-405(2) (West 2008)); and (b) the police youth officer improperly participated in
defendant’s interview; and (2) whether the trial court properly applied the Illinois rape shield
statute (725 ILCS 5/115-7(a) (West 2008)) in denying defendant’s request to introduce
evidence of the victim’s sexual history. In his cross-appeal, defendant presents two additional
issues: (1) whether defense counsel provided ineffective assistance by not offering evidence
of defendant’s diminished mental capacity during the suppression hearing; and (2) whether
the mandatory transfer of certain minors from juvenile court to adult criminal court under the
relevant portion of section 5-130 of the Juvenile Court Act of 1987 (705 ILCS 405/5-130
(West 2008)) is constitutional under the due process clause, the eighth amendment, and the
Illinois proportionate penalties clause, particularly in light of the United States Supreme
Court’s rationale in Roper v. Simmons, 543 U.S. 551 (2005) (abolishing the death penalty for
all juveniles), Graham v. Florida, 560 U.S. 48 (2010) (barring life without parole for
juveniles in nonhomicide cases), and Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455
(2012) (barring mandatory life without parole for all juveniles).
¶ 36 A. Suppression of Defendant’s Confession
¶ 37 In its appeal, the State initially argues that the appellate court erred in holding
defendant’s motion to suppress his confession should have been granted. The State
specifically refutes two of the court’s findings: (1) the police did not make a sufficient effort
to notify a concerned adult under section 5-405(2) (705 ILCS 405/5-405(2) (West 2008));
and (2) the youth officer improperly participated in the investigation. In his cross-appeal,
defendant asserts an alternative rationale for upholding the appellate court’s determination.
He argues that his trial counsel provided him with ineffective assistance at the hearing on the
suppression motion. Although we review de novo the ultimate question of whether
defendant’s confession was voluntary after examining the totality of the circumstances, we
examine the trial court’s underlying factual findings deferentially, overturning them only if
they are against the manifest weight of the evidence. In re G.O., 191 Ill. 2d 37, 50, 54 (2000).
¶ 38 1. The Statutory Notice Requirement
¶ 39 In examining whether the police complied with section 5-405(2), we look first to the
relevant portion of the statutory language:
“(2) A law enforcement officer who arrests a minor without a warrant under
Section 5-401 shall, if the minor is not released, immediately make a reasonable
attempt to notify the parent or other person legally responsible for the minor’s care or
the person with whom the minor resides that the minor has been arrested and where
the minor is being held ***.” (Emphasis added.) 705 ILCS 405/5-405(2) (West
2008).
¶ 40 The key to resolving the question in this case is the reasonableness of the Schaumburg
police department’s actions before defendant was questioned. The appellate court concluded
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that those actions did not constitute a “reasonable attempt” to contact a concerned adult, and
defendant emphasizes that the presence of a “concerned adult” before or during the
interrogation is an “important element” in determining the voluntariness of his confession
(People v. Griffin, 327 Ill. App. 3d 538, 545 (2002)).
¶ 41 The parties agree that youth officer Kaminski called both the director of defendant’s
residential facility, Stephen Kehoe, and defendant’s caseworker to notify them that defendant
was at the Schaumburg station and was going to be questioned about the assault shortly
before questioning began at 10 p.m. When they could not be reached, Kaminski left
voicemail messages for each of them. The State notes that defendant’s caseworker did not
return Detective Kaminski’s call for two days. The trial court acknowledged this fact as well,
stating the police did not need to stop the investigation and “sit on the Defendant for days
because then they would be criticized for sitting on him for days.”
¶ 42 In addition, Kaminski testified that he established with another officer prior to the start of
questioning that Kehoe had previously been told where defendant was taken and had given
the police permission to speak to defendant. Detective Kaminski further testified that, after
defendant was questioned, he again called Kehoe, who confirmed that the police had
permission to speak with defendant as well as to search the facility’s van for evidence.
¶ 43 In its evaluation of the witnesses, the trial court noted that Kehoe did not deny giving
permission and admitted he had spoken to three police officers that night, although he was
unable to recall giving his permission. The judge appeared somewhat skeptical of Kehoe’s
lack of memory, describing the lapse as “interesting” and finding it “curious” that Kehoe’s
counsel attempted, but was not permitted, to sit in the witness box with him during
questioning. In contrast, the judge “believe[d] Officer Kaminski,” describing his testimony as
“very credible.” Due to the inherent limitations in reviewing a cold transcript, we must give
the trial court’s credibility findings considerable deference. People v. Wheeler, 226 Ill. 2d 92,
114-15 (2007).
¶ 44 While Detective Kaminski undoubtedly could have taken additional steps to notify a
concerned adult, such as seeking out and calling the caseworker’s home phone number, none
of those steps are required by the statute. 705 ILCS 405/5-405(2) (West 2008). Statutory
compliance is solely dependent on the police making a “reasonable attempt” at notification,
not on perfect performance. In this instance, defendant was taken into custody at
approximately 8:30 p.m. on a Sunday. Detective Kaminski testified that he attempted to
comply with the notice requirement by placing telephone calls to both the director of
defendant’s residential facility, Stephen Kehoe, and defendant’s caseworker before defendant
was questioned. When he was unable to reach either party, Kaminski left phone messages.
Kaminski was also informed by another officer prior to the start of questioning that Kehoe
already granted permission to question defendant, and Kehoe did not dispute that he may
have given permission. Although the statute does not require permission to interview a
juvenile defendant, a grant of permission establishes that actual notice was given, fulfilling
the statute. In addition, Detective Kaminski testified he personally spoke to Kehoe after
defendant was questioned but before his statement was typed, reviewed with him, and signed.
The trial judge found Detective Kaminski to be a “very credible” witness, and nothing in the
record refutes that assessment.
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¶ 45 The reasonableness of the notification attempt by the police is also supported by the
description of the persons subject to notification. Section 5-405(2) requires the police to
make a reasonable attempt to notify “the parent or other person legally responsible for the
minor’s care or the person with whom the minor resides.” 705 ILCS 405/5-405(2) (West
2008).
¶ 46 While DCFS was indisputably defendant’s legal guardian, the person or persons who
were “legally responsible for [his] care” during the years he lived at the treatment facility is
less clear. Defendant contends that Kehoe was not an appropriate adult to contact because he
did not work for DCFS. We need not definitively answer that question here, however,
because our inquiry is limited to determining whether the police made a reasonable attempt
to notify a proper person.
¶ 47 As the director of the treatment facility where defendant had resided for three years,
Kehoe was at least arguably “a person with whom defendant resided,” and bore some degree
of responsibility for his care. Although defendant contends that Kehoe was more likely to be
concerned for his injured staff member than for defendant, the plain language of the statute
does not require that the individuals to be notified be concerned exclusively with the
defendant’s well-being, instead simply listing broad categories of potentially concerned
adults.
¶ 48 Defendant emphasizes the absence of a concerned adult is particularly relevant if the
police have prevented an adult from talking to a juvenile, citing People v. Murdock, 2012 IL
112362, ¶ 33. While we agree with that general statement, we disagree that it applies to the
facts of this case. The record shows that Director Kehoe did not deny giving the police
permission to speak with defendant, and the trial court appears to have been seriously
troubled by his alleged lack of memory, particularly when he admitted he spoke with three
police officers that night. Defendant does not cite any case law holding that a particular
concerned adult was “prevented” from contacting a juvenile merely because another
potentially concerned adult could not be contacted. The statute does not expressly require the
police to attempt to contact every possible concerned adult, and in the absence of that
legislative mandate, we decline to read that requirement into the statute. See People v. Lewis,
223 Ill. 2d 393, 403 (2006). Accordingly, we are not convinced that the police “prevented”
any adult from contacting defendant under the facts of this case.
¶ 49 Defendant also contends that finding the police attempts at notification to be reasonable
would defeat the purpose of obtaining a concerned adult. As enacted, the statute does not
mandate the presence of a concerned adult or, even more critically, that actual notice be
provided before the start of questioning. Section 5-405(2) simply requires that the police
make a reasonable attempt to provide notification. 705 ILCS 405/5-405(2) (West 2008). This
court may not add requirements to those already imposed by the plain language of the statute.
Lewis, 223 Ill. 2d at 403. Therefore, based on our review of all the relevant facts, we
conclude that the attempt here by police to provide proper notice, while arguably not
exemplary, was sufficient to comport with the legislature’s statutory mandate. Accordingly,
we reverse the appellate court’s contrary finding.
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¶ 50 2. The Role of the Youth Officer
¶ 51 As an additional basis for reversing the denial of defendant’s motion to suppress his
confession, the appellate court concluded that youth officer Kaminski improperly
participated in the criminal investigation and “did not even fulfill the most basic of a youth
officer’s tasks.” 2012 IL App (1st) 101573, ¶ 38 (modified upon denial of rehearing Sept. 26,
2012). Before this court, defendant points to Kaminski’s allegedly improper acts of talking to
the victim upon his arrival at the police station and working with the questioning officer by
helping to type defendant’s statement, reading it to defendant, and obtaining his signature.
Defendant analogizes these actions to those of the youth officer in Murdock, 2012 IL 112362,
¶¶ 50-51, who actively worked against the defendant’s interests, completely abandoning his
protective role by actively questioning the defendant about his involvement in the alleged
offenses.
¶ 52 We concluded in Murdock that the juvenile officer “was not merely *** standing by
while another officer took the lead in interviewing defendant; rather, [he] was the lead
interviewer. *** [He] could not act as a juvenile officer or concerned adult while at the same
time compiling evidence against defendant.” Murdock, 2012 IL 112362, ¶ 51.
¶ 53 In contrast, Detective Kaminski was “merely a juvenile officer standing by while another
officer took the lead in interviewing defendant” (Murdock, 2012 IL 112362, ¶ 51). Although
Kaminski was present during the interview, defendant does not allege that he asked any
questions. Moreover, Detective Kaminski fulfilled the fundamental duties of a youth officer
noted in Murdock, such as inquiring whether defendant needed anything, ensuring that he
was treated properly while in custody, reading defendant his Miranda rights (Murdock, 2012
IL 112362, ¶ 49), as well as ascertaining that he understood those rights by asking him to
explain each one individually. Although defendant testified that he was not read his rights
until after he signed a statement that had been fabricated by the police, the trial court found
those allegations to be “ludicrous” and Kaminski’s contradictory account to be “very
credible.” Defense counsel also specifically denied at the suppression hearing any allegation
of coercion or duress by the police.
¶ 54 Even though Kaminski briefly spoke to the victim when he arrived at the police station,
the record does not show what information he obtained at that time, and defendant does not
establish how that conversation adversely affected his performance as a youth officer that
night. Our review of the record also fails to reveal any connection between Kaminski’s
conversation and possible prejudice to defendant. Nor did Kaminski’s ministerial acts of
helping the investigating officer type up the statement and reading it aloud to defendant
clearly breach the proper role of a youth officer. In fact, to ensure defendant’s understanding
of the contents of the statement, Kaminski took the additional step of having him read it
aloud before signing it.
¶ 55 As we explained in Murdock, “[w]hile the presence of a juvenile officer is a significant
factor in the totality of the circumstances argument, there is no requirement that a juvenile
officer be present when a minor is questioned, and the absence of a juvenile officer will not
make a juvenile’s statements per se involuntary.” Murdock, 2012 IL 112362, ¶ 52. Notably,
despite the youth officer’s complete abandonment of his duties, we ultimately concluded that
the juvenile’s statements were made voluntarily and upheld their admission at trial. Murdock,
2012 IL 112362, ¶ 55.
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¶ 56 Here, Detective Kaminski’s actions did not remotely approach the complete
abandonment of his role as a youth officer. If the complete absence of a youth officer and the
active, adverse participation of a purported youth officer in the questioning of a juvenile are
not sufficient to mandate a finding that a statement is involuntary, then Kaminski’s
involvement does not either. Accordingly, we reject defendant’s argument that the appellate
court properly concluded that his statement was involuntary based on Kaminski’s improper
participation in the investigation.
¶ 57 3. The Totality of the Circumstances
¶ 58 Next, we must examine the totality of the circumstances to determine de novo whether
the trial court’s denial of defendant’s motion to suppress his statement was erroneous. In
making that determination, we recognize that taking a juvenile confession requires great care
to ensure it did not result from mere juvenile ignorance or emotion. G.O., 191 Ill. 2d at 50,
54-55. Relevant factors to consider include the minor’s age, mental capacity, education,
physical condition, the legality and length of the interview, and physical or mental abuse by
the police, as well as the presence of a concerned adult and any attempts by the police to
prevent or frustrate that contact. G.O., 191 Ill. 2d at 54-55.
¶ 59 Defendant argues that the appellate court correctly determined that his statement was
involuntary due to the coercive atmosphere created by this combination of factors: (1) the
absence of a concerned adult during questioning; (2) the insufficiency of police attempts to
contact a concerned adult; (3) youth officer Kaminski’s participation in the investigation; (4)
defendant’s youth and minimal criminal justice system experience; (5) the officers’ use of
trickery during questioning; and (6) the time when questioning was conducted.
¶ 60 In its modified decision, the appellate court relied heavily on the first three factors cited
by defendant. Having previously found that the police did not violate the notice provision in
section 5-405(2) and that Kaminski’s conduct was not improper; however, we need not
further examine those separate factors. Supra ¶¶ 48, 53-54. As for the fourth factor,
defendant’s youth and limited prior contact with the police, defendant alleged in his motion
to suppress that he was “a special education student with limited reading comprehension and
comprehension skills” but offered no supporting evidence at the motion hearing. The absence
of that evidence serves as the basis for defendant’s additional claim that trial counsel
provided him with ineffective assistance, a question we will address later. For our present
purpose of reviewing the propriety of the trial court’s denial of the suppression motion,
however, we consider only the evidence actually adduced at the suppression hearing.
¶ 61 We also note that defendant specifically disavowed at that hearing any police coercion or
duress and does not allege any physical abuse or overt promises by police during questioning
before this court. Thus, we examine only the remaining factors at issue in this case: (1)
defendant’s age; (2) his limited experience with the criminal justice system; (3) any possible
police deception; and (4) the time, legality, and duration of the questioning. See G.O., 191 Ill.
2d at 54-55.
¶ 62 Addressing the first two factors together, the record shows that defendant was 15 years
old and in ninth grade when he was questioned by police. Although defendant had received a
“station adjustment” from police when he was 11, he had no other contact with the criminal
justice system. Based on his prior experience, defendant posits that the failure to tell him that
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he was facing adult charges likely caused him to believe he would be allowed to go home if
he cooperated by signing the confession. Defendant has never claimed, however, that the
police promised him anything in exchange for his confession. Moreover, after viewing
defendant’s testimony at the suppression hearing, the trial court found him to be sufficiently
mature to be capable of making a valid statement, describing him as:
“a very astute young man. He is not in my opinion someone who does not understand
things, his testimony, and his demeanor while testifying and so forth. I guess for lack
of a better explanation from a judge’s point of view is he looks and acts much, much
older than his age. That’s not saying that his mental state is older, but I don’t see any
reason in the record that or even outside the record that I saw after consideration of
everything that I have heard to suppress this statement.”
The trial judge had the distinct advantage of watching defendant testify, and his description
of defendant’s apparent maturity is not belied by our review of the record. Accordingly, we
defer to the trial court’s assessment. Wheeler, 226 Ill. 2d at 114-15.
¶ 63 Moreover, we have upheld the admission of statements obtained without the benefit of a
concerned adult from defendants considerably younger and less experienced than defendant.
In G.O., the defendant was just 13 years old when he was adjudicated delinquent of first
degree murder, aggravated discharge of a firearm, aggravated battery, and aggravated battery
with a firearm. G.O., 191 Ill. 2d at 40. The police contacted his mother, and, although she did
not contact him prior to questioning, they did not frustrate any attempt to speak with him.
G.O., 191 Ill. 2d at 56. Despite his young age, we upheld the admission of his confession
after reviewing the totality of circumstances that are nearly identical to those in this case. We
weighed the defendant’s youthfulness, lack of prior contact with law enforcement, and the
absence of a concerned adult against the absence of any request to speak to an adult or
evidence that the police frustrated any attempts at outside contact, the validity of the
detention, the giving and understanding of the defendant’s Miranda rights, his intelligence,
the short duration of the questioning, the absence of handcuffs, the opportunities given to the
minor for food, drink, and access to the bathroom, and the lack of any physical coercion,
threats, or promises by the police. G.O., 191 Ill. 2d at 56.
¶ 64 Defendant is also older than the minor in People v. Morgan, who was only 14 years of
age when he was charged with the murders of his grandfather and grandmother, charges that
ultimately resulted in a prison sentence of 75 years. People v. Morgan, 197 Ill. 2d 404, 410
(2001). The defendant had been an average student prior to being expelled from a private
school for misconduct, although he had twice been hospitalized for over a month with
diagnoses of attention deficit disorder and depression and had been prescribed
antidepressants. Although he was handcuffed when initially taken into custody, the defendant
was not restrained during questioning, nor was he threatened, coerced, or promised anything
by police. Morgan, 197 Ill. 2d at 437-39.
¶ 65 This court was troubled most by the police department’s complete failure to attempt to
contact a concerned adult, or even a youth officer, prior to questioning, but we noted that the
police did not actively prevent or frustrate contact and the defendant did not ask to speak to
an adult. We also expressly recognized that a juvenile’s confession should not be suppressed
merely because he was denied an opportunity to confer with a concerned adult. Morgan, 197
Ill. 2d at 439-40 (citing G.O., 191 Ill. 2d at 55).
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¶ 66 The defendant in Morgan was offered food, drink, and bathroom access and was held in
custody for less than six hours. Morgan, 197 Ill. 2d at 436, 439. He was read his Miranda
rights before being subjected to two interviews of approximately 30 minutes each. Although
the defendant claimed he did not understand those rights and felt he had no choice but to
answer the officer’s questions, the record showed that he affirmatively declined to answer
one question. Consequently, we agreed with the trial court’s factual finding that the
defendant understood his rights and that his will had not been overborne when he confessed
to the murders. Accordingly, we affirmed the trial court’s denial of the defendant’s motion to
suppress his custodial statements. Morgan, 197 Ill. 2d at 441.
¶ 67 Finally, as in Murdock, 2012 IL 112362, ¶ 44, the instant defendant was “on the older
end of the juvenile scale.” In Murdock, the defendant was 16 years old when he was tried as
an adult and convicted of first degree murder and aggravated battery with a firearm.
Murdock, 2012 IL 112362, ¶ 3. The evidence established that the defendant received poor
grades and had completed only one semester at an alternative high school before trial. On
appeal, he argued that the trial court erred by denying his motion to suppress his statement as
involuntary. Murdock, 2012 IL 112362, ¶ 28.
¶ 68 We concluded that the youth officer actively worked against the defendant’s interests and
that no other concerned adult was available to him prior to and during questioning. Murdock,
2012 IL 112362, ¶¶ 50-51. Nonetheless, after examining the totality of the circumstances, we
affirmed the trial court’s determination that his confession was voluntary and admissible. In
reaching that conclusion, we looked at the defendant’s lack of prior police contact, his
demeanor and degree of understanding during questioning, his physical condition, his
opportunities for food, drink, and bathroom use, and the absence of any coercion, physical or
mental abuse, or promises or trickery by the police. Murdock, 2012 IL 112362, ¶ 55.
¶ 69 Notably, the length of the defendant’s detention and interview in Murdock were both
considerably longer than those of defendant in this case. Murdock was detained for six to
seven hours and questioned for three hours, with the interview concluding before “the very
early morning hours.” Murdock, 2012 IL 112362, ¶ 47. Here, defendant was taken into
custody at 8:30 p.m., and signed his statement at 11:15 p.m., after just 45 minutes of
questioning.
¶ 70 Our decisions in G.O., Morgan, and Murdock are highly instructive in this case, and we
are not persuaded by defendant’s attempts to distinguish Murdock and G.O. on their facts. He
contends that Murdock is distinguishable because there it was “clear” that the juvenile’s
grandfather, who was at the police station, never requested to speak with him and the police
officer testified contact would have been permitted if a request had been made. Here, the
police allegedly questioned defendant “with full knowledge that no concerned adult would
even know” he had been taken into custody, contributing to the coercive atmosphere present
during questioning.
¶ 71 We reject defendant’s argument for two reasons. First, Detective Kaminski testified that
he was informed prior to the start of questioning that Director Kehoe had already given
permission for the interview, and the trial court found his testimony to be highly credible.
Thus, Kaminski would have reasonably believed a concerned adult had been notified and
chose not to speak with defendant before questioning. Under those circumstances, the police
could not have leveraged any possible advantage from withholding notice to a concerned
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adult during questioning. Second, defendant’s argument is logically inconsistent. The
coercive effect of the lack of contact between a minor defendant and a concerned adult prior
to questioning is the same regardless of whether it resulted from the failure of a concerned
adult who was actually present at the police station to request contact, as in Murdock, or a
lack of notice to any concerned adult at all, as defendant alleges here. Under either set of
circumstances, the juvenile would still be subject to questioning without the benefit of a
concerned adult’s experience and insight.
¶ 72 Defendant also attempts to distinguish Murdock because in that case the court had the
advantage of a videotape of the defendant’s confession. That videotape contradicted his
claims at his suppression hearing that the police promised he could go home if he confessed
and that he was tired and scared. Here, defendant’s confession was not videotaped. When
asked about the absence of a video recording in this case, the interviewing officer testified
that the police department’s policy was to videotape statements only in homicide cases.
While the trial court’s review of the parties’ demeanor and the actual conversation that took
place in Murdock was undoubtedly a factor in determining whether his confession was
voluntary, no mandate to record defendant’s statement in this case existed, and we decline to
impose one judicially. We conclude the absence of a video record here is a neutral factor that
cannot support defendant’s claim that his statement was involuntary.
¶ 73 Defendant also asserts that G.O. is distinguishable from this case for a similar reason. He
maintains that here the police prevented him from speaking to a concerned adult by starting
the interview only minutes after leaving messages for Director Kehoe and defendant’s
caseworker. We reject this argument for the same reasons we rejected defendant’s similar
contention about Murdock. Supra ¶ 71. Furthermore, we have already held that the police
complied with their statutory duty of notification. Supra ¶ 48. Having fulfilled that duty, the
police were under no obligation to delay the start of defendant’s interview.
¶ 74 Next, defendant attempts to distinguish G.O. because the juvenile in that case performed
well in school while this defendant’s motion to suppress alleged that he was “a special
education student with limited reading comprehension and comprehension skills.” No
evidence of defendant’s allegedly deficient reading and comprehension skills was offered,
however, at the motion hearing. In addition, we defer, as we must under this record, to the
trial court’s conclusion that defendant understood his rights and possessed sufficient maturity
and intellectual ability to make a valid statement.
¶ 75 Indeed, the record shows he was astute enough to tell the police initially that the victim
had instigated the single act of consensual oral sex that he admitted took place. This
deliberate attempt to avoid culpability belies any claim that he was confused by the
questioning, intimidated by the authority figures, or unable to understand the serious nature
and consequences of the interview process.
¶ 76 Defendant next argues that, unlike in G.O., the police tricked and deceived him during
questioning. While deception is not per se unlawful, it can contribute to the coerciveness of
the interrogation and weigh against a finding of voluntariness. G.O., 191 Ill. 2d at 54-55.
Defendant asserts that his confession was made immediately after Detective Atamian told
him the police would check video surveillance footage from businesses in the vicinity of the
assault for discrepancies in his story even though the officer did not know at that time
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whether any footage was available. He adds that even if the officer’s statements were
technically true, they amounted to trickery designed to induce him to confess.
¶ 77 Defendant does not dispute that the examining officer never said incriminating footage
had actually been recovered, and the police looked later, unsuccessfully, for surveillance
cameras in the area. While the mere prospect that video footage revealing inaccuracies in his
statement could be recovered likely influenced defendant’s decision to renounce his initial
story, that result is consistent with the underlying purpose of any interrogation, i.e., to elicit
the truth. The officer’s statement accurately informed defendant of what the police would be
doing to verify his account. Therefore, we decline defendant’s invitation to deem the
interviewing officer’s utterly truthful statement to be “trickery.” Overall, we conclude that
the factual distinctions defendant alleges exist between this case and G.O. are insignificant.
¶ 78 The appellate court, however, relied on defendant’s youth and inexperience, as well as its
view that the police did not do enough to contact a concerned adult and that Detective
Kaminski’s actions conflicted with his role as a youth officer, to conclude that the trial court
erred in denying defendant’s motion to suppress because it was involuntary. After
considering the totality of the circumstances surrounding defendant’s confession, as well as
our prior decisions in G.O., Morgan, and Murdock that upheld the admissibility of statements
under substantially similar conditions, we hold the appellate court erroneously reversed the
trial court’s denial of defendant’s motion to suppress his statement.
¶ 79 B. Ineffective Assistance of Counsel
¶ 80 As an alternative basis to uphold the appellate court’s finding that the trial court erred in
denying his suppression motion, defendant argues in his cross-appeal that his trial counsel
failed to provide him with effective legal assistance. He contends that by not offering
evidence of his diminished mental capacity at the suppression hearing to support the bare
claim in his motion to suppress that he was “a special education student with limited reading
comprehension and comprehension skills,” counsel violated defendant’s right to effective
assistance. He asserts that counsel’s knowledge of his limited intellectual functioning and
longstanding mental health issues was demonstrated by counsel’s request for a pretrial fitness
hearing and subsequent review of the examining psychiatrist’s report.
¶ 81 To establish ineffective assistance of counsel, a defendant must satisfy the two-prong
Strickland test, demonstrating that: (1) counsel’s performance was objectively unreasonable
compared to prevailing professional standards; and (2) there is a “ ‘reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’ ” People v. Domagala, 2013 IL 113688, ¶ 36 (quoting Strickland v. Washington,
466 U.S. 668, 694 (1984)). Satisfying the prejudice prong necessitates a showing of actual
prejudice, not simply speculation that defendant may have been prejudiced. People v. Bew,
228 Ill. 2d 122, 128-29 (2008). Furthermore, a “reasonable probability” is defined as a
showing sufficient to undermine confidence in the outcome, rendering the result unreliable or
fundamentally unfair. People v. Evans, 209 Ill. 2d 194, 220 (2004). When reviewing a ruling
on a motion to suppress, overcoming the prejudice prong requires the defendant to show a
reasonable probability both that: (1) the suppression motion would have been granted; and
(2) the trial outcome would have been different if the evidence had been suppressed. Bew,
228 Ill. 2d at 128-29. Because we may properly resolve claims of ineffective assistance after
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examining only the prejudice prong (People v. Hale, 2013 IL 113140, ¶ 17), we begin here
by examining defendant’s allegations of prejudice.
¶ 82 Defendant claims that his lengthy mental health history and limited intellectual capacity
made him more susceptible to subtle police intimidation and coercion and that the evidence
of his mental functioning would have weighed heavily in his favor in evaluating the
voluntariness of his confession. If that evidence had been offered during the suppression
hearing, defendant asserts that the outcome would have been different and his motion would
have been granted, establishing prejudice.
¶ 83 Even if we accept defendant’s contention that the trial court would have suppressed his
statement in light of the additional evidence, he has still failed to demonstrate a reasonable
probability that the outcome of the entire trial would have changed, resulting in his acquittal.
See Bew, 228 Ill. 2d at 128-29 (requiring a reasonable probability of different outcomes at
both the suppression hearing and the trial). Disregarding any evidence related to defendant’s
statement, the trial evidence consists predominantly of the conflicting accounts offered by
defendant and the victim, along with physical evidence of her injuries and the damage to her
GPS and the treatment facility’s van. At its core, the 25-year-old victim testified that she was
assigned by her employer to pick defendant up in the van and return him to the center after a
weekend visit with his family. After starting back to the facility with defendant, she
described being frightened and physically overwhelmed by the much larger defendant, who
forced her to exit the highway and park the van in a vacant parking lot. Although she
repeatedly tried to escape, defendant was able to grab and restrain her, sometimes choking
her into compliance. She was forcibly subjected to two brief nonconsensual oral sex acts, as
well as to nonconsensual sexual intercourse, that lasted between 30 and 45 seconds. At the
end of the assault, defendant apologized and said he had not intended to hurt her. After
stating she would not tell anyone what had happened, she was allowed to drive the van back
to the residential treatment facility. Once defendant was locked inside his unit, she
immediately reported the assault to a co-worker, collapsing and sobbing, and the police were
called.
¶ 84 Photographs taken several hours after the incident and testimony from the police officer
who initially interviewed the victim and the treating emergency room physician confirmed
that she was visibly upset and exhibited fresh bruises on her left thigh, wrist, elbow, and
waist or hip. The police officer also recalled seeing a red mark on the side of her neck that
did not photograph well several hours after the attack. In addition, a large area of dirt on the
driver’s side of the van was smeared and a smudged handprint was discovered near the
sliding door, consistent with the victim’s story that defendant caught her by her coat hood
after she escaped from the van and pushed her against its side before shoving her inside
again. Also consistent with E.C.’s account, her frayed GPS cord was found in the parking lot
where the assault took place. Finally, the van’s visor was recovered from the floor of the
vehicle, ripped from its hinge, consistent with a struggle.
¶ 85 For his part, defendant’s testimony differed in nearly every respect. He stated that before
this incident he had recognized the victim as a facility staff member and that she had taken
him to a movie he had earned as a behavioral reward a few days before the incident. On the
day of the assault, he claimed it was E.C. who chose to exit the highway and park in the
vacant lot. She then asked defendant to get into the backseat of the van, and she exited the
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vehicle merely to get into the backseat with him. She unzipped defendant’s pants and
proceeded to perform oral sex for three or four minutes before saying it was time to return to
the facility and telling him she would not say anything about the events if he did not. He
denied engaging in any other sexual activity with her. He then returned to the front seat
through the middle aisle of the van while the victim exited the vehicle and re-entered through
the driver’s side door. At some point, she mentioned to defendant that it was her birthday.
After returning to the treatment facility, defendant relaxed in the dayroom until he was
escorted to the lobby by his therapist and Director Kehoe, where he was handcuffed and
taken into custody before being driven to the police station. Defendant expressly denied the
details of the assault related in the victim’s testimony.
¶ 86 On cross-examination, defendant indicated E.C. made up the allegations. He denied ever
getting out of the van or struggling with her while parked in the vacant lot. He had no
explanation for the multiple fresh bruises on the victim’s body within hours of the assault or
the damage to the van and the GPS.
¶ 87 Although credibility is generally a question for the trier of fact (People v. Wheeler, 226
Ill. 2d 92, 114-15 (2007)), here the physical evidence strongly corroborated E.C.’s testimony.
The details of her account were entirely consistent with the physical evidence of a violent
assault, while defendant’s account could not be reconciled with that evidence. Given the
overwhelming evidence corroborating the victim’s testimony and weighing against
defendant’s account, we are not persuaded that it is reasonably probable that a jury would
have acquitted defendant even in the absence of any reference to his confession at trial. The
reasonably probable impact of counsel’s alleged error is not sufficient to undermine our
confidence in the outcome of the trial. Therefore, defendant has failed to establish the
prejudice prong of the Strickland test, and we reject his claim that defense counsel provided
constitutionally ineffective assistance. See Hale, 2013 IL 113140, ¶ 17 (noting that claims of
ineffective assistance of counsel may be decided on the Strickland prejudice prong alone).
Because the appellate court erred in holding defendant’s motion to suppress his statement
should have been granted, we reverse that portion of its judgment and affirm the trial court’s
denial of defendant’s motion.
¶ 88 C. Constitutionality of the Mandatory Transfer Statute
¶ 89 In his cross-appeal, defendant argues that the mandatory transfer provision of the
Juvenile Court Act of 1987 (705 ILCS 405/5-130 (West 2008)), automatically transferring
certain minors from the jurisdiction of the juvenile court to the adult criminal court, is
constitutionally invalid. More specifically, he contends that the automatic transfer statute,
either alone or in conjunction with Illinois’s mandatory consecutive sentencing scheme (730
ILCS 5/5-8-4(a)(ii) (West 2008)) and “Truth in Sentencing” rules requiring him to serve at
least 85% of his sentence (730 ILCS 5/3-6-3(a)(2)(ii) (West 2008)), is unconstitutional.
These provisions purportedly do not take into account the inherent differences between
juveniles and adults, including juveniles’ reduced culpability and greater ability to change.
Therefore, defendant argues that the provisions are fatally “flawed,” violating the federal and
state due process clauses (U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, § 2), the cruel
and unusual punishment clause of the eighth amendment of the federal constitution (U.S.
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Const., amend. VIII), and the proportionate penalties clause of the Illinois Constitution (Ill.
Const. 1970, art. I, § 11).
¶ 90 Constitutional challenges carry the heavy burden of successfully rebutting the strong
judicial presumption that statutes are constitutional. In addition, courts have a duty to uphold
the constitutionality of a statute whenever reasonably possible, resolving any doubts in favor
of its validity. We review the constitutionality of any statute de novo. People v. Dabbs, 239
Ill. 2d 277, 291 (2010).
¶ 91 Here, the automatic transfer statute requires juveniles who are at least 15 years old and
charged with one of the enumerated crimes to be prosecuted in adult criminal court rather
than in juvenile court. The specified crimes are first degree murder, aggravated battery with a
firearm, when the minor has personally discharged the firearm, armed robbery committed
with a firearm, aggravated vehicular hijacking committed with a firearm, and aggravated
criminal sexual assault. 705 ILCS 405/5-130 (West 2008). Because defendant was 15 years
old when he was charged with aggravated criminal sexual assault, the provision required him
to be automatically transferred to criminal court for trial and, if convicted, sentenced as an
adult.
¶ 92 1. The Due Process Claim
¶ 93 We first address defendant’s due process claim. As both parties recognize, this court
rejected a similar claim challenging the predecessor to section 5-130 in People v. J.S., 103 Ill.
2d 395 (1984). In that consolidated case, the three defendants were each 16 years old when
the offenses were committed, and they were automatically transferred to criminal court under
the statute. The trial court in each case found the transfer statute unconstitutional, and on
direct appeal to this court, the defendants argued it violated both procedural and substantive
due process. J.S., 103 Ill. 2d at 402.
¶ 94 In rejecting that claim, this court distinguished Kent v. United States, 383 U.S. 541
(1966), where the United States Supreme Court invalidated a District of Columbia statute
allowing minors to be tried as adults, potentially exposing some of them to the death penalty
or life imprisonment, if the trial court determined that juvenile court jurisdiction should be
waived after a “full investigation.” Kent, 383 U.S. at 547. The Court held that due process
was violated because the statute did not provide sufficient guidance in deciding when waiver
was proper, permitting potentially arbitrary rulings, and because the statute did not provide
juveniles with a hearing before that determination was made. Kent, 383 U.S. at 561-62. We
concluded in J.S. that Illinois’s automatic transfer statute did not suffer from the same failing
because it required all 15- and 16-year-olds charged with the listed offenses to be transferred
to criminal court, thus eliminating the potential for the use of unguided discretion in the
juvenile court that was found to be unconstitutional by the Supreme Court. J.S., 103 Ill. 2d at
405. Applying a similar rationale in People v. P.H., 145 Ill. 2d 209, 236 (1991), we also
rejected a juvenile defendant’s due process challenge to the “gang-transfer” provisions of the
transfer statute.
¶ 95 Furthermore, this court again upheld the automatic transfer statute against a due process
challenge in People v. M.A., 124 Ill. 2d 135, 147 (1988). In that case, the juvenile defendant’s
challenge was based on the legislature’s 1985 statutory amendment of the transfer provision,
adding unlawful use of weapons on school grounds to the list of eligible offenses. M.A., 124
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Ill. 2d at 138. We concluded that the legislature did not act irrationally or arbitrarily or
contravene the purpose of the Juvenile Court Act of 1987 in amending the statute and upheld
the constitutional validity of the amended statute. M.A., 124 Ill. 2d at 145-46.
¶ 96 Here, however, defendant asserts that J.S. is no longer valid law in light of the United
States Supreme Court’s subsequent rulings in Roper v. Simmons, 543 U.S. 551 (2005),
Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 567 U.S. ___, 132 S. Ct.
2455 (2012). Defendant argues that this court’s reliance on the absence of any statutory
judicial discretion in J.S. to uphold the transfer statute supports his allegation of a due
process violation in this case because those Supreme Court decisions emphasized a need to
recognize the unique characteristics of youthful offenders that is inconsistent with an
automatic transfer.
¶ 97 As previously discussed, in J.S., the defendant unsuccessfully attempted to support his
due process argument by distinguishing the Supreme Court’s due process analysis in Kent.
J.S., 103 Ill. 2d at 404-05. In contrast, here defendant is attempting to support his due process
argument by relying on the Supreme Court’s eighth amendment analysis in Roper, Graham,
and Miller. Defendant’s constitutional argument is crafted from incongruous components.
Although both the Supreme Court and defendant have emphasized the distinctive nature of
juveniles, the applicable constitutional standards differ considerably between due process and
eighth amendment analyses. A ruling on a specific flavor of constitutional claim may not
justify a similar ruling brought pursuant to another constitutional provision. See People v.
Davis, 2014 IL 115595, ¶ 45 (finding the juvenile defendant’s sentence violated the eighth
amendment but declining to consider his state due process and proportionate penalties
challenges). In other words, a constitutional challenge raised under one theory cannot be
supported by decisional law based purely on another provision. United States v. Lanier, 520
U.S. 259, 272 n.7 (1997). Accordingly, we reject defendant’s reliance on the Supreme
Court’s eighth amendment case law to support his procedural and substantive due process
claims.
¶ 98 Moreover, this court has recently had the opportunity to examine the effect of the
Supreme Court’s analyses in Roper, Graham, and Miller in a due process challenge raised by
the defendant in Davis, 2014 IL 115595, ¶ 30. As in this case, the defendant in Davis relied
heavily on the “special status” of juveniles acknowledged by the Supreme Court. As we
noted, however, this court recognized the special characteristics and vulnerabilities of
juvenile offenders several years earlier, substantially anticipating the Supreme Court’s view
in our extensive discussion in People v. Miller, 202 Ill. 2d 328 (2002) (hereinafter, Leon
Miller). Davis, 2014 IL 115595, ¶ 45. We concluded in Davis that res judicata precluded our
reconsideration of whether due process was violated by the imposition of a natural life
sentence on the 14-year-old defendant even in the aftermath of Roper, Graham, and Miller,
and we find no more persuasive basis here to reconsider our decision to uphold the transfer
statute in the face of a due process challenge in J.S.
¶ 99 2. The Eighth Amendment and Proportionate Penalties Claims
¶ 100 Defendant more properly relies on the decisions in Roper, Graham, and Miller to support
his constitutional challenge to the Illinois automatic transfer statute under the federal cruel
and unusual punishment clause (U.S. Const., amend. VIII) and our state proportionate
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penalties clause (Ill. Const. 1970, art. I, § 11). He contends that those decisions require a
finding that the transfer statute, either alone or in conjunction with Illinois’s mandatory
consecutive sentencing scheme (730 ILCS 5/5-8-4(a)(ii) (West 2008)) and “Truth in
Sentencing” rules (730 ILCS 5/3-6-3(a)(2)(ii) (West 2008) (requiring defendant to serve 85%
of his sentence)), are fatally flawed because they do not take juveniles’ distinctive
characteristics into account. Defendant asserts that the challenged statutes fail to recognize
modern scientific research showing that youths are different from adults in three ways.
Research shows that juveniles differ from adults because they are: (1) more impulsive; (2)
more vulnerable to negative influences and outside pressure; and (3) possess a less well
formed character, making their actions less indicative of irreversible depravity. Miller, 567
U.S. at ___, 132 S. Ct. at 2464. In recognition of those findings, the Supreme Court has
concluded that juveniles “are constitutionally different from adults for purposes of
sentencing.” Miller, 567 U.S. at ___, 132 S. Ct. at 2464. Defendant argues that, therefore, the
Supreme Court has extended two death penalty case rules to juveniles in non-capital cases:
(1) categorically disallowing application of the same harsh sentencing standards as adults
because they are inconsistent with evolving standards of decency; and (2) requiring
individualized sentences for juveniles because “death is different” and so are minors. Miller,
567 U.S. at ___, ___, ___, ___, ___, 132 S. Ct. at 2460, 2463-64, 2467, 2470, 2475.
¶ 101 We begin our review by examining the relevant constitutional language. The eighth
amendment protects defendants against cruel and unusual punishment, while the Illinois
proportionate penalties clause similarly bars the imposition of unreasonable sentences,
stating that “[a]ll penalties shall be determined both according to the seriousness of the
offense and with the objective of restoring the offender to useful citizenship” (Ill. Const.
1970, art. I, § 11). Under the definition of the plain language used, neither clause applies
unless a punishment or penalty has been imposed.
¶ 102 To support his claim that the transfer statute is covered by the eighth amendment and the
proportionate penalties clause because it is punitive rather than procedural, defendant
analogizes to ex post facto cases where transfer statutes have been deemed to be inherently
punitive because they ultimately resulted in the imposition of harsher sentences on juveniles.
United States v. Juvenile Male, 819 F.2d 468, 471 (4th Cir. 1987). We are not persuaded by
defendant’s line of reasoning.
¶ 103 Just as due process cases cannot be resolved based solely on eighth amendment analyses,
neither can eighth amendment issues be disposed of based solely on the rationale and
standards applied in ex post facto cases. See Lanier, 520 U.S. at 272 n.7 (explaining that a
constitutional attack based on one provision cannot be supported by decisions relying strictly
on another provision). Defendant’s challenge is raised pursuant to the eighth amendment and
Illinois’s proportionate penalties clause. It does not implicate ex post facto law, and, in any
event, this court is not bound by decisions cited by defendant (People v. Clemons, 2012 IL
107821, ¶ 32).
¶ 104 We also reject defendant’s assertion that the transfer statute effectively functions as a
sentencing statute, particularly when applied with mandatory consecutive sentencing and
“truth in sentencing” provisions. As this court has repeatedly explained, access to juvenile
courts is not a constitutional right because the Illinois juvenile justice system is a creature of
legislation. M.A., 124 Ill. 2d at 141; J.S., 103 Ill. 2d at 402. Whether a defendant is tried in
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juvenile or criminal court is purely a matter of procedure. City of Urbana v. Andrew N.B., 211
Ill. 2d 456, 486 (2004) (Freeman, J., dissenting); P.H., 145 Ill. 2d at 222. Even if we accept
the assertion that a juvenile who is convicted in criminal court is always subject to a lengthier
sentencing range and harsher prison conditions than if he had been adjudicated in juvenile
court, defendant cites nothing that can convert a purely procedural statute into a punitive one.
¶ 105 This court has previously concluded that the purpose of the transfer statute is to protect
the public from the most common violent crimes, not to punish a defendant. In enacting the
automatic transfer statute, the legislature has reasonably deemed criminal court to be the
proper trial setting for a limited group of older juveniles charged with at least one of five
serious named felonies. J.S., 103 Ill. 2d at 403-04. Because we decline to second-guess the
validity of the legislature’s judgment (P.H., 145 Ill. 2d at 233), defendant has not convinced
us to disregard our long held view that the transfer statute is purely procedural and now
construe it to be punitive. As we stated in M.A., 124 Ill. 2d at 146, “The differences in
treatment created by the statute in question is not in the penalty provided for different
offenses.” The mere possibility that a defendant may receive a potentially harsher sentence if
he is convicted in criminal court logically cannot change the underlying nature of a statute
delineating the legislature’s determination that criminal court is the most appropriate trial
setting in his case. We reject the connection between the transfer statute and the imposition
of harsher punishment alleged by defendant as simply too attenuated to be persuasive.
¶ 106 Therefore, in the absence of actual punishment imposed by the transfer statute,
defendant’s eighth amendment challenge cannot stand. See Ingraham v. Wright, 430 U.S.
651, 671 n.40 (1977). Because the Illinois proportionate penalties clause is co-extensive with
the eighth amendment’s cruel and unusual punishment clause (In re Rodney H., 223 Ill. 2d
510, 518 (2006)), we also reject defendant’s challenge under our state constitution.
¶ 107 Finally, defendant suggests that, at a minimum, the combination of the transfer statute
and the applicable sentencing provisions is unconstitutional as applied to non-homicide
offenders because they are “categorically less deserving of the most serious forms of
punishment than are murderers.” Graham, 560 U.S. at 69. Because defendant did not kill or
intend to kill, he claims he has a “twice diminished moral culpability” and does not deserve
the most severe punishments. Graham, 560 U.S. at 69. Defendant asserts that youthfulness
must be considered whenever “a harsh adult sentence” is given to a minor because juveniles’
distinctive traits are not crime-specific, citing Miller, 567 U.S. at ___, 132 S. Ct. at 2465. In
support, defendant also cites Leon Miller, 202 Ill. 2d at 340-41, where this court found the
imposition of a mandatory life sentence on a 15-year-old convicted of two counts of first
degree murder based on accountability after an automatic transfer to adult court
unconstitutional because the youth’s age and personal culpability were never considered.
¶ 108 Here, defendant was sentenced to 12 years in prison on each of three counts of
aggravated criminal sexual assault. The sentences were required to be served consecutively
(730 ILCS 5/5-8-4(a)(ii) (West 2008)), and defendant was statutorily mandated to serve at
least 85% of his total prison term (730 ILCS 5/3-6-3(a)(2)(ii) (West 2008)), or 30 years, 7
months. Although lengthy, that term is not comparable to either the death penalty or “ ‘the
second most severe penalty permitted by law,’ ” life in prison without parole (Graham, 560
U.S. at 69 (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J.,
concurring in part and concurring in the judgment, joined by O’Connor and Souter, JJ.))).
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The Supreme Court has clearly distinguished the latter sentences from any others, noting
both the uniqueness of the “ ‘severity and irrevocability’ ” of the death penalty and the
“characteristics with death sentences that are shared by no other sentences” besides life
without parole. Graham, 560 U.S. at 69 (quoting Gregg v. Georgia, 428 U.S. 153, 187 (1976)
(joint opinion of Stewart, Powell, and Stevens, JJ.)). The Supreme Court has also instructed
that “[a] State is not required to guarantee eventual freedom to a juvenile offender convicted
of a nonhomicide crime,” but only to give those offenders “some meaningful opportunity to
obtain release based on demonstrated maturity and rehabilitation,” expressly leaving the
specific mechanism and means to each state. Graham, 560 U.S. at 75. Most recently, in
Miller the Court reiterated the Graham rationale and emphasized the “unprecedented” nature
of the Court’s expansion of its categorical ban to the imposition of life without parole for
juveniles in nonhomicide cases. Miller, 567 U.S. at ___, 132 S. Ct. at 2466.
¶ 109 Similarly, this court has unanimously declined to expand the narrow rule in Graham to
all juveniles sentenced to life without parole for homicides. Davis, 2014 IL 115595,
¶¶ 48-49. Although defendant relies on Leon Miller, that decision is inapposite. There, we
described the minor defendant as “the least culpable offender imaginable,” having been
convicted of two murders solely on the theory of accountability. Nonetheless, he was subject
to mandatory life in prison with no possibility of parole. Leon Miller, 202 Ill. 2d at 341. In
our ruling, we focused on the particular harshness and obvious lack of proportionality of that
sentence in light of the unique facts of the case. We expressly:
“agree[d] with defendant that a mandatory sentence of natural life in prison with no
possibility of parole grossly distorts the factual realities of the case and does not
accurately represent defendant’s personal culpability such that it shocks the moral
sense of the community. This moral sense is particularly true, as in the case before us,
where a 15-year-old with one minute to contemplate his decision to participate in the
incident and stood as a lookout during the shooting, but never handled a gun, is
subject to life imprisonment with no possibility of parole—the same sentence
applicable to the actual shooter.” Leon Miller, 202 Ill. 2d at 341.
Nonetheless, we refrained from barring the imposition of a life sentence on any juvenile
offender, denying any implication “that a sentence of life imprisonment for a juvenile
offender convicted under a theory of accountability is never appropriate.” As we explained,
“[i]t is certainly possible to contemplate a situation where a juvenile offender actively
participated in the planning of a crime resulting in the death of two or more individuals, such
that a sentence of natural life imprisonment without the possibility of parole is appropriate.”
Leon Miller, 202 Ill. 2d at 341.
¶ 110 Accordingly, both this court and the United States Supreme Court have closely limited
the application of the rationale expressed in Roper, Graham, and Miller, invoking it only in
the context of the most severe of all criminal penalties. A prison term totalling 36 years for a
juvenile who personally committed three counts of aggravated criminal sexual assault does
not fall into that category. We decline defendant’s invitation to extend the Supreme Court’s
eighth amendment rationale to the facts of this case.
¶ 111 We do, however, share the concern expressed in both the Supreme Court’s recent case
law and the dissent in this case over the absence of any judicial discretion in Illinois’s
automatic transfer provision. While modern research has recognized the effect that the
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unique qualities and characteristics of youth may have on juveniles’ judgment and actions
(see, e.g., Roper, 543 U.S. at 569-70; infra ¶ 156), the automatic transfer provision does not.
Indeed, the mandatory nature of that statute denies this reality. Accordingly, we strongly urge
the General Assembly to review the automatic transfer provision based on the current
scientific and sociological evidence indicating a need for the exercise of judicial discretion in
determining the appropriate setting for the proceedings in these juvenile cases.
¶ 112 D. The Illinois Rape Shield Law
¶ 113 After reversing defendant’s convictions and remanding the cause for a new trial, the
appellate court considered whether the trial court properly denied defendant’s request to
introduce evidence of the victim’s sexual history under an exception to the Illinois rape
shield statute (725 ILCS 5/115-7 (West 2008)). Following the rationale in People v. Anthony
Roy W., 324 Ill. App. 3d 181 (2001), the court held that the exclusion of evidence that the
victim had engaged in sexual intercourse with someone other than defendant in the days prior
to the assault was an abuse of the trial court’s discretion. Consequently, the court directed the
trial court to admit the evidence on retrial. 2012 IL App (1st) 101573, ¶ 49 (modified upon
denial of rehearing Sept. 26, 2012).
¶ 114 In examining evidentiary rulings, we apply a deferential standard of review, considering
only whether they were an abuse of the trial court’s discretion. To establish an abuse of
discretion, defendant must persuade us that the trial court’s decision to exclude the evidence
was “arbitrary, fanciful or unreasonable or where no reasonable man would take the view
adopted by the trial court.” (Internal quotation marks omitted.) People v. Santos, 211 Ill. 2d
395, 401 (2004). We have previously noted the “absolute” nature of the rape shield bar,
subject only to two narrow statutory exceptions for “evidence concerning the past sexual
conduct of the alleged victim [or corroborating witness] *** with the accused” and evidence
that is “constitutionally required to be admitted.” (Internal quotation marks omitted.) Santos,
211 Ill. 2d at 401. See also 725 ILCS 5/115-7(a) (West 2008).
¶ 115 Here, the State’s argument against admission of the evidence relies on the similarities
between this case and Santos, while defendant claims that this case more closely resembles
Anthony. We find neither case to be dispositive here because both are factually
distinguishable.
¶ 116 The true core of defendant’s argument is based on dicta in People v. Sandoval, 135 Ill. 2d
159, 185 (1990), stating that one “extraordinary circumstance[ ]” potentially satisfying the
constitutional requirement exception to the rape shield statute is an offer of evidence
providing an alternative explanation for the victim’s observed injuries. Here, the injury at
issue was noted by the victim’s examining physician, who testified that she had “some”
cervical redness that was “consistent with sexual intercourse.” In a sidebar, defense counsel
requested permission “to go into whether or not sperm was found in [the victim’s] vagina,
which would otherwise be protected by the rape shield, but [defendant] has a constitutional
right, I think, to bring out that evidence when there’s an inference that she had recent sexual
intercourse and he’s denying that he had sexual intercourse with her, and she had sexual
intercourse, apparently, with someone else within 72 hours, knowing how far—that’s about
how long sperm lasts.”
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¶ 117 In ruling on the request, the trial judge noted that the physician testified to the presence of
some redness but “did not say it was the result of a rape. He did not even trace it back to this
incident.” The trial court added that “[i]t would be different *** if we were in a situation if
he said he found some injury that was consistent with forced sexual act within the last few
hours. Then we’d be in a different ballpark, so I think based on how he’s described it and
how he described the significance or insignificance of that finding to this jury. Respectfully
your request is denied.” The appellate court, however, reversed that ruling and permitted
defendant, “on retrial, if the State introduces any evidence of [the victim’s] physical
condition to show that she had intercourse within a day or two of the medical examination.”
2012 IL App (1st) 101573, ¶ 49 (modified upon denial of rehearing Sept. 26, 2012).
¶ 118 Before this court, the State argues that defendant failed to provide adequate support for
his request to admit the evidence under the rape shield exception to create an appealable
issue (People v. Maxwell, 2011 IL App (4th) 100434, ¶¶ 76-87; People v. Grant, 232 Ill. App.
3d 93, 103-05 (1992)). We agree in light of the important purpose underlying the rape shield
statute, namely “to prevent the defendant from harassing and humiliating the prosecutrix at
trial with evidence of *** specific acts of sexual conduct with persons other than the
defendant” (Sandoval, 135 Ill. 2d at 180). To preserve a claim on appeal, a party is required
to make “considerably detailed and specific” offers of proof after a denial of a request to
admit evidence if the substance of the witness’s answer is unclear. See People v. Peeples, 155
Ill. 2d 422, 457 (1993).
¶ 119 Here, the only support offered for defense counsel’s proffered evidence was his
speculation that the victim’s cervical inflammation occurred three days before the assault
because sperm could persist for 72 hours. No medical testimony was offered to back up
counsel’s bare assertion, and counsel did not take the opportunity to ask the examining
physician, or any other expert, questions about the general persistence of cervical
inflammation that could have provided a sufficiently detailed offer of proof.
¶ 120 Although defendant asserts the futility of asking additional questions because the
examining physician had already testified that he could not tell when the injury occurred, our
review of the record contradicts defendant’s position. On cross-examination, the examining
physician was asked, “You don’t know exactly when [the cervical inflammation] occurred; is
that correct, sir?” The physician responded, “I don’t know when that occurred.” Contrary to
defendant’s contention, the physician’s response did not establish that he had a medical
opinion on whether the redness could have persisted for three days. The question asked only
if the witness could tell “exactly when” the inflammation occurred.
¶ 121 This distinction was not lost on defense counsel, who later used the inconclusive nature
of the physician’s testimony to establish his theory of the case during closing arguments.
Defense counsel asserted that the cervical redness:
“could be caused by anything. It could be a rash. I don’t know. The doctor says
there’s a redness in the cervix, and it could be caused by consensual or nonconsensual
sex. Consensual or nonconsensual sex, when? The doctor didn’t say. Within the last
three hours, within the last ten hours, the last three days, the last four days? How does
that prove he had sex with her? It doesn’t. It’s meaningless.”
¶ 122 During his closing argument, counsel also noted the absence of any DNA from
defendant, arguing “the greatest meaning of anything in this case is no DNA. Don’t let them
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kid you about that. They can find DNA from saliva on a chicken bone that’s six months old
after you chew on it. There’s no DNA in this case. And according to them, he’s all over her.
He’s all over her. She can’t move.” After reviewing the testimony elicited from the witnesses
and defense counsel’s closing argument, we conclude that, as in Sandoval, the trial court’s
exclusion of the evidence of the victim’s sexual history did not prevent defendant from
presenting the jury with his theory of the case. Sandoval, 135 Ill. 2d at 181.
¶ 123 Before this court, defendant also argues that the medical sources cited in the State’s brief
indicate cervical inflammation could, in fact, last three days. It was, however, defense
counsel’s burden to provide a sufficiently detailed offer of proof at trial, not months or years
later on appeal. See People v. Canulli, 341 Ill. App. 3d 361, 367-68 (2003) (stating that
appellate review is limited to the record on appeal). When reviewing an evidentiary ruling for
an abuse of discretion, common sense dictates that we evaluate the exercise of that discretion
in light of the evidence actually before the trial judge. Without a sufficient offer of proof, the
trial court could not have known if any witness would have testified that the victim’s cervical
redness could have persisted for three days or the possible underlying basis for that opinion.
Because defendant did not provide a sufficient offer of proof, defendant’s claim that the trial
court erred in denying his evidentiary request is not subject to review. See Peeples, 155 Ill.
2d at 457-58 (explaining courts’ inability to review appeal when an offer of proof is not
“considerably detailed and specific,” leaving the substance and basis of the witness’s
testimony unclear). Therefore, we reject the portion of the appellate court opinion instructing
the trial court to admit on remand the evidence requested by defendant.
¶ 124 E. The Excessive Sentence Claim
¶ 125 Lastly, because this court declined to grant defendant relief from his convictions or
sentence on another basis, he asks that this cause be remanded to the appellate court for
initial consideration of his excessive-sentence claim. The appellate court did not reach that
issue in its prior judgment, and we agree with defendant that it should decide that question on
remand from this court.
¶ 126 III. CONCLUSION
¶ 127 For the reasons stated, we conclude that the police made a reasonable attempt to contact a
concerned adult on behalf of the juvenile defendant, as required by section 5-405(2) of the
Juvenile Court Act of 1987 (705 ILCS 405/5-405(2) (West 2008)), the youth officer’s
conduct was not improper, and the trial court did not err by admitting defendant’s inculpatory
statement. We also conclude that defendant failed to establish the prejudice necessary to
show that defense counsel provided ineffective assistance during the hearing on the motion to
suppress defendant’s statement. We reject defendant’s constitutional challenges to Illinois’s
mandatory juvenile transfer provision (705 ILCS 405/5-130 (West 2008)). Finally, we
determine that, contrary to dicta in the appellate court judgment, the trial court properly
applied the Illinois rape shield statute (725 ILCS 5/115-7(a) (West 2008)) to deny
defendant’s request to introduce evidence of the victim’s sexual history. Accordingly, we
reverse the appellate court judgment. We remand the cause to the appellate court for
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consideration of defendant’s claim that his sentence is excessive.
¶ 128 Appellate court judgment reversed.
¶ 129 Cause remanded.
¶ 130 JUSTICE THEIS, dissenting:
¶ 131 I join my colleagues in parts II.A., II.B., II.C.1, II.D., and II.E. of the majority opinion. I
do not join them in part II.C.2. I believe that the excluded jurisdiction provision, or automatic
transfer statute, of the Juvenile Court Act of 1987 (705 ILCS 405/5-130 (West 2008))
violates the eighth amendment of the United States Constitution (U.S. Const., amend. VIII)
and article I, section 11 of the Illinois Constitution (Ill. Const. 1970, art. I, § 11).
¶ 132 The eighth amendment, applicable to the states through the fourteenth amendment (see
Furman v. Georgia, 408 U.S. 238, 239 (1972) (per curiam)), forbids “cruel and unusual
punishment.” Article I, section 11 requires, “All penalties shall be determined both according
to the seriousness of the offense and with the objective of restoring the offender to useful
citizenship.” Ill. Const. 1970, art. I, § 11. The first part of our constitutional clause is related
to its federal counterpart (see People v. McDonald, 168 Ill. 2d 420, 455-56 (1995); People v.
Clemons, 2012 IL 107821, ¶ 40), and both concern punishment or penalties. According to the
majority, the plain language of those clauses essentially decides this case. The majority
asserts that because “neither clause applies unless a punishment or penalty has been
imposed” (supra ¶ 101), and “the purpose of the transfer statute is to protect the public from
the most common violent crimes, not to punish” (supra ¶ 105), the defendant’s eighth
amendment challenge fails. The majority’s approach is ostensibly based upon a brief
statement in People v. J.S., 103 Ill. 2d 395, 404 (1984), where the court sketched, and
accepted as reasonable, the State’s offer of a possible rationale for the statute. The majority’s
approach also tracks that of the appellate court in a string of recent cases. See, e.g., People v.
Jackson, 2012 IL App (1st) 100398, ¶ 24 (“The automatic transfer provision does not dictate
any form of punishment as that term is used throughout criminal statutes.”); People v. Salas,
2011 IL App (1st) 091880, ¶ 68.
¶ 133 In my view, that approach is overly simplistic, and elevates form over substance. The
automatic transfer statute may indeed protect the public, but it does so by mandatorily
placing juveniles in criminal court based only on their offenses, and thereby exposing them
to vastly higher adult sentences and, in effect, punishing them. “[T]he true impact and
frequently articulated goal of transfer proceedings” is “to subject the juvenile offender to the
harsher sentencing scheme only available in the adult justice system.” Jenny E. Carroll,
Rethinking the Constitutional Criminal Procedure of Juvenile Transfer Hearings: Apprendi,
Adult Punishment, and Adult Process, 61 Hastings L.J. 175, 180-81 (2009); see People v.
P.H., 145 Ill. 2d 209, 231 (1991) (asserting that the purpose of the “gang transfer” provision
of the Juvenile Court Act of 1987 is decreasing the level of gang violence “by increasing the
likelihood of criminal prosecution and sentencing”).
¶ 134 “ ‘Adult time for adult crimes’ became the rallying cry for politicians across the country,
leading to changes in the law in almost every jurisdiction between 1992 and 1999. These
laws extended adult court jurisdiction over youths by lowering the age requirement for adult
court prosecution, expanding the range of offenses which could subject a juvenile to adult
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prosecution, and shifting the decision over who remains in juvenile court and who goes to the
criminal court from judges to prosecutors or legislators.” Steven A. Drizin & Greg Luloff,
Are Juvenile Courts a Breeding Ground for Wrongful Convictions?, 34 N. Ky. L. Rev. 257,
265 (2007).
¶ 135 At the leading edge of that wave of such laws, our original automatic transfer statute, and
the precursor to section 5-130, was enacted in 1982. See Ill. Rev. Stat. 1982, ch. 37,
¶ 702-7(6)(a) (recodified as Ill. Rev. Stat. 1991, ch. 37, ¶ 805-4(6)(a)). There were spirited
debates in both houses of the General Assembly. These debates are highly relevant in
divining the purpose behind the statute. See People v. Adams, 144 Ill. 2d 381, 387 (1991).
They leave little doubt that legislators—both supporters of the bill and supporters of the
amendments—considered the statute to be punitive.
¶ 136 In the Senate, Senator Dawn Clark Netsch offered an amendment to the bill that
ultimately became the automatic transfer statute. Senator Netsch’s amendment did not
disagree with “the basic premise that there are a number of juveniles who are violent
offenders, and who ought not to be subjected, if you will, to the juvenile court system but
ought to be a part of the regular criminal court system.” 82d Ill. Gen. Assem., Senate
Proceedings, May 26, 1982, at 34. Instead, the amendment would have substituted automatic
transfers for certain violent felonies with automatic hearings before juvenile court judges,
who would exercise discretion in deciding where a juvenile would be tried. Id. She stated,
“[P]hilosophically, it seems to me that there ought to be some review by the presiding
juvenile judge and that is what this amendment is intended to offer as an option.” Id. at 35.
¶ 137 Senator Bowers, speaking against an amendment, suggested, “if you want to call them
juveniles, and if you want to pretend they’re juveniles, that’s fine, but under today’s society
and today’s societal acts that these people are committing, I don’t think they ought to be
treated that way.” Id. at 38. Senator Collins, speaking for an amendment, stated, “I, for one,
do not want to coddle criminals … hardened criminals, and I do realize the necessity for us to
try and do something about *** those youths who get away under disguise of being youth,
and who commit[ ] serious and hideous crime.” Id. at 40. Also in support of an amendment,
Senator DeAngelis talked about perceptions: “In this particular instance, with the way the bill
is right now, it’s perceived that this is going to offer greater punishment to the juvenile[s]
because they have committed a more severe crime.” Id. at 43. And Senator Netsch, in
closing, insisted that the amendment was not “soft-on-crime.” Id. at 44.
¶ 138 The debate in the House of Representatives was longer and, at times, more emotional.
Representative Getty offered an amendment similar to Senator Netsch’s amendment, which
would have created a rebuttable presumption in favor of transfer, but would also have given
juvenile court judges some discretion over transfer decisions. 82d Ill. Gen. Assem., House
Proceedings, June 23, 1982, at 138.
¶ 139 Representative Daniels, speaking against an amendment to the bill, offered an example:
“ ‘If a fifteen-year-old is convicted of murder under the Juvenile Act, the max
sentence he can get is a period of six years, and with good time off, he’ll serve three
years’ time for a murder—three years’ time. *** I recall a conversation that I had
with [then-Cook County State’s Attorney] Rich[ard] Daley last year, *** and he said
to me, *** “crime sure is a real problem in this country today, but the crime that I fear
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the most is the crime that’s being committed today by the juveniles ***”.’ ” Id. at
142-43.
¶ 140 Representative Johnson had similar thoughts:
“ ‘[J]uvenile justice, juvenile crime, is an absolute joke in Illinois and around the
country. *** The purpose of this Bill *** is to say to the people of Illinois, and we
hope the same example is followed nation-wide, that the victims of a juvenile rapist,
armed robber or murderer are just as victimized as if the fortuitous situation
[occurred] where the perpetrator of the crime was eighteen years of age. It’s an
absolute necessity that we have a mandatory transfer. *** [O]nce charged, a rapist, an
armed robber, a murderer and so forth, ought to be charged as an adult and tried as an
adult, and handled, except for incarceration purposes, through the adult criminal
justice system ***.’ ” Id. at 144-45.
¶ 141 Representative Kosinski, speaking against an amendment, had “ ‘little sympathy for some
juveniles today, who through sophistication of the media *** and the education of their
peers—are hiding behind the realities of our law. I think it’s abominable that we permit this
to occur, and on that basis, I feel we should have an extremely strong Bill’ ” with automatic
transfers, and not automatic hearings. Id. at 145. Representative Stearney, also speaking
against an amendment, was more stark in his comments:
“ ‘A young person, a 15 or 16 year old *** values no life whatsoever; he’ll take my
life simply to get a few dollars. That is the person that we must take off the streets. If
we’re going to have a semblance of organized society in the large metropolitan areas
of this state, we’ve got to remove the juvenile offender, that person that is committing
serious crimes ***.’ ” Id. at 148-49.
¶ 142 Representative Bullock echoed that theme, which he called a “law and order issue,”
stating:
“ ‘I’m going to vote to take kids like that off the street before they hurt my kid and
someone’s else’s kid. And I think that if a kid, 15 year old, takes a shotgun and goes
out and robs someone, that he ought to be treated the same way we treat an adult; and
that’s to put him in jail, throw the key away, and we won’t have to worry about that
menace any more.’ ” Id. at 150-51.
¶ 143 Representative Ewell also touched upon that, but in the context of prison space:
“ ‘In fact, if you have to triple the space, you’ll triple the space in order to eliminate
this heinous crime. *** Murder, rape, armed robbery, and deviate sexual assault are
indeed acts that ought to be transferred automatically, so the message would go, not
to the people who are dead and not to the victims, but to the people who commit these
heinous offenses.’ ” Id. at 153-54.
¶ 144 And Representative Bowman, speaking for a fiscal note on the bill, noted that the
proponents of the bill asserted that it would send many more juveniles into the criminal
justice system: “ ‘They are the ones who are suggesting this is going to keep more criminals
off the street.’ ” Id. at 162.
¶ 145 In the final debate on the bill, Representative Frederick mentioned that Representative
Getty’s amendment would have “ ‘allowed a modicum of individualization, rather than carte
blanche transfer of all juveniles involved in very serious crime.’ ” But she insisted that all
House members still “ ‘want to see juveniles who commit serious adult crimes such as
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murder and rape *** brought to justice.’ ” 82d Ill. Gen. Assem., House Proceedings, June 24,
1982, at 70.
¶ 146 Representative Bullock spoke in favor of the bill:
“ ‘[W]hat we’re talking about in this legislation is providing once and for all a clear
statement of intent and a clear statement of principle to the victims of crime, not only
in Cook County, but in the State of Illinois. *** And what we say in effect is that
those individuals who are street-wise juveniles should be given the same type of
consideration before a bar of justice, of an adult who is street-wise and happens not to
be a juvenile. *** We are not going to allow *** street-wise juveniles to enter into
these acts and not be punished accordingly.’ ” Id. at 71-72.
¶ 147 Representative Reilly agreed, focusing on the main point of the bill—automatic transfer:
“ ‘A kid, fifteen, sixteen years old who’s committed a murder, who’s committed a rape,
who’s committed a very serious crime, is not a kid in the sense that we ought to be concerned
about that.’ ” Id. at 73.
¶ 148 Representative Currie summarized the intent of the bill’s sponsors, who were “ ‘selling
this as a measure that will get tough on juvenile crime.’ ” Id. at 74. And Representative
Henry explained his vote like this:
“ ‘I’m amazed at those who are against this Bill. I would like to know how many
youngsters in their districts are committing murder, raping *** senior citizens,
robbing the poor, and *** dealing dope in their communities. I would just like to
know, because I’m sick and tired of bleeding hearts telling me, and telling some of
my friends what we can and we cannot support. I would like to take some of those
juveniles, those tough juveniles, and transport them all to their districts and let them
deal with them.’ ” Id. at 79.
¶ 149 Even after its initial enactment, the punitive focus of the automatic transfer statute
remained unchanged. In the debates surrounding the bill that later became Public Act 91-15,
which added aggravated battery with a firearm on or around school property to the list of
enumerated offenses excluded from juvenile court jurisdiction, the House sponsor,
Representative Schmitz, agreed with Representative Turner that its purpose was to obtain
“very meaningful” and “strict” prosecution—essentially, to “get tough on crime” and
juveniles who use or bring guns to school. 91st Ill. Gen. Assem., House Proceedings, May 4,
1999, at 13-14. Representative Turner even queried why anyone “ ‘would not be totally
supportive of transferring these kinds of cases to the adult court where they can be reckoned
with on a harsh basis because they should be dealt with on a harsh basis.’ ” Id. at 14. Further,
a bill like the one that became Public Act 98-61, which left all automatic transfers in place,
“ ‘is not, in fact, soft on crime.’ ” 98th Ill. Gen. Assem., House Proceedings, April 16, 2013,
at 48 (statements of Representative Currie).
¶ 150 These euphemisms indisputably mean punishment, and, in the minds of the legislators on
either side of the proverbial aisle, so do automatic transfers. Other courts have recognized
this for years. Defendant relies upon United States v. Juvenile Male, 819 F.2d 468 (4th Cir.
1987). There, a 15-year-old juvenile was charged with three murders on a Marine base. At
the time of the offenses, the federal Juvenile Delinquency Act did not allow the government
to prosecute minors as adults. Congress then amended the statute to provide for transfers. The
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federal district court determined that the amended statute could be applied retroactively
because it was a procedural change in the law.
¶ 151 The federal circuit court disagreed, holding that the amended statute could not be applied
retroactively because it plainly imposed greater, more burdensome, and more onerous
punishment by exposing the juvenile to a much more severe sentence. Id. at 470. The court
explained:
“The 1984 amendment is ‘procedural’ only in the most superficial, formal sense, in
that it authorizes the government to move to ‘transfer’ the juvenile to the district court
for trial as an adult. Such a ‘transfer’ is no mere change in venue ***; it is instead a
means by which to impose on certain juveniles the harsher sentences applicable to
adults. The significance of the ‘transfer’ is not that the transferred defendant must
appear in a different court, the district court, and defend himself according to the
procedural rules of the district court instead of those of a juvenile court. Rather, its
significance is that the transferred defendant is suddenly subject to much more severe
punishment. Only by closing one’s eyes to the actual effect of the transfer can one
label this radical increase in the applicable punishment a procedural change.” Id. at
471.
¶ 152 Accord Helton v. Fauver, 930 F.2d 1040, 1045 (3d Cir. 1991) (holding that “it is
indisputable that [the defendant’s] punishment was increased as a result of the waiver of
juvenile court jurisdiction”); Saucedo v. Superior Court, 946 P.2d 908, 911 (Ariz. Ct. App.
1997).
¶ 153 The majority rejects defendant’s line of reasoning, but not on its merits. The majority has
chosen to remain blind to the true effect of automatic transfers on the grounds that that effect
was observed in ex post facto clause cases. But the holdings in those cases are not so easily
cabined, and their reasoning is persuasive. The key is not whether the defendant here has
raised an ex post facto clause challenge to the automatic transfer statute, but whether that
provision is punitive. In my view, it is.
¶ 154 That conclusion, however, does not end the inquiry. What makes the automatic transfer
statute unconstitutional is not that it is punishment, but that it runs afoul of “evolving
standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S.
86, 100-01 (1958) (plurality op.). Here is where Roper v. Simmons, 543 U.S. 551 (2005),
Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 567 U.S. ___, 132 S. Ct.
2455 (2012), enter our conversation. Those cases have incrementally led to a general rule that
“youth matters,” so statutes with mandatory sentencing consequences for juveniles that fail to
account for their diminished culpability and individual characteristics are constitutionally
infirm. See id. at ___, 132 S. Ct. at 2471. That rule, I believe, dictates the proper outcome of
this case.
¶ 155 In Roper, the Supreme Court considered whether the eighth amendment prohibited
capital sentences for juveniles who commit murder. The Court stated that the cruel and
unusual punishment clause, like other expansive language of the constitution, “must be
interpreted according to its text, by considering history, tradition, and precedent.” Roper, 543
U.S. at 560. To do so, the Court reiterated that it must refer to “ ‘the evolving standards of
decency that mark the progress of a maturing society’ to determine which punishments are so
disproportionate as to be cruel and unusual.” Id. at 561 (quoting Trop, 356 U.S. at 100-01).
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According to the Court, the beginning point of the analysis is “a review of objective indicia
of consensus, as expressed in particular by the enactments of legislatures” regarding the
challenged punishment, followed by an exercise of independent judgment as to whether that
punishment is indeed disproportionate. Id. at 564.
¶ 156 The Supreme Court determined that there was a national consensus against capital
sentences for juveniles, shown by the fact that 30 states prohibited the juvenile death penalty,
and the other 20 states practiced it infrequently. Id. at 564-67. The Court then turned to the
other part of its analysis: its own judgment about the proportionality of capital sentences for
juveniles. Capital sentences should be reserved for those offenders whose extreme culpability
warrants such a sanction (id. at 568), but “[t]hree general differences between juveniles under
18 and adults demonstrate that juvenile offenders cannot with reliability be classified among
the worst offenders” (id. at 569).
“First, as any parent knows and as the scientific and sociological studies *** tend to
confirm, ‘[a] lack of maturity and an underdeveloped sense of responsibility are
found in youth more often than in adults and are more understandable among the
young. These qualities often result in impetuous and ill-considered actions and
decisions.’ Johnson [v. Texas, 509 U.S. 350, 367 (1993)]; see also Eddings [v.
Oklahoma, 455 U.S. 104, 115-16 (1982)] (‘Even the normal 16-year-old customarily
lacks the maturity of an adult’). It has been noted that ‘adolescents are
overrepresented statistically in virtually every category of reckless behavior.’ Arnett,
Reckless Behavior in Adolescence: A Developmental Perspective, 12 Developmental
Rev. 339 (1992). ***
The second area of difference is that juveniles are more vulnerable or susceptible
to negative influences and outside pressures, including peer pressure. Eddings, [455
U.S.] at 115 (‘[Y]outh is more than a chronological fact. It is a time and condition of
life when a person may be most susceptible to influence and to psychological
damage’). This is explained in part by the prevailing circumstance that juveniles have
less control, or less experience with control, over their own environment. See
Steinberg & Scott, Less Guilty by Reason of Adolescence: Developmental
Immaturity, Diminished Responsibility, and the Juvenile Death Penalty, 58 Am.
Psychologist 1009, 1014 (2003) *** (‘[A]s legal minors, [juveniles] lack the freedom
that adults have to extricate themselves from a criminogenic setting’).
The third broad difference is that the character of a juvenile is not as well formed
as that of an adult. The personality traits of juveniles are more transitory, less fixed.
See generally E. Erikson, Identity: Youth and Crisis (1968).” Roper, 543 U.S. at
569-70.
¶ 157 According to the Court, these differences militate against any conclusion that juveniles
fall among the worst offenders, and their “diminished culpability” means the penological
justifications for the death penalty—retribution and deterrence—apply to them with less
force. Id. at 570-71. As for retribution, the Court noted that if most adult murderers are not
culpable enough to receive capital sentences, juvenile murderers certainly are not:
“Retribution is not proportional if the law’s most severe penalty is imposed on one whose
culpability or blameworthiness is diminished, to a substantial degree, by reason of youth and
immaturity.” Id. at 571. As for deterrence, the Court noted that it remains unclear whether the
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death penalty factors into the calculus of juvenile murders: “[T]he absence of evidence of
deterrent effect is of special concern because the same characteristics that render juveniles
less culpable than adults suggest as well that juveniles will be less susceptible to deterrence.”
Id.
¶ 158 In Graham, the Court considered whether the eighth amendment prohibited
life-without-parole sentences for juveniles who commit nonhomicide offenses. The Court
stated that its eighth amendment jurisprudence could be broken into two groups: cases
involving specific challenges to term-of-years sentences, and cases involving general
challenges to the propriety of certain sentences for certain offenders. Graham, 560 U.S. at
59. The second group has typically concerned the death penalty. Id. at 60. In that context, the
Court has outlawed capital sentences for defendants guilty of nonhomicide offenses, as well
as for defendants who fall into certain categories, including juveniles. Id. at 61 (citing Roper,
543 U.S. 551). The analysis used in the cases adopting categorical bans on capital sentences
has two steps: The Court initially considers objective indicia of society’s standards, as
expressed in legislation across the country regarding such sentences, then it exercises its own
independent judgment about the constitutionality of such sentences. Id.
¶ 159 The Court found only a mild consensus against life-without-parole sentences for
juveniles guilty of nonhomicide offenses, but noted that it faced a similar situation more than
20 years earlier in Thompson v. Oklahoma, 487 U.S. 815 (1988) (plurality op.), where it
concluded that capital sentences for juveniles under age 16 violated the cruel and unusual
punishment clause. Graham, 560 U.S. at 66. There, and relevant to the case before us, a
plurality of the Court stated that the fact that many states considered juveniles between ages
15 and 18 old enough to be tried in criminal court did not mean those states had made a
judgment about what sentences those juveniles should receive. Id. (quoting Thompson, 487
U.S. at 826 n.24). The Court stated:
“Many States have chosen to move away from juvenile court systems and to allow
juveniles to be transferred to, or charged directly in, adult court under certain
circumstances. Once in adult court, a juvenile offender may receive the same sentence
as would be given to an adult offender, including a life without parole sentence. But
the fact that transfer and direct charging laws make life without parole possible for
some juvenile nonhomicide offenders does not justify a judgment that many States
intended to subject such offenders to life without parole sentences.
*** [T]he statutory eligibility of a juvenile offender for life without parole does
not indicate that the penalty has been endorsed through deliberate, express, and full
legislative consideration.” Graham, 560 U.S. at 66-67.
¶ 160 The Court then turned to its own task of interpreting the eighth amendment. That task
requires consideration of the culpability of the offenders in light of their crimes and
characteristics, the severity of the sentence, and the sentence’s relation to “legitimate
penological goals,” including retribution, deterrence, incapacitation, and rehabilitation. Id. at
67, 71. The Court returned to Roper, and reiterated that juveniles have less culpability than
adults: they generally display a lack of maturity and an underdeveloped sense of
responsibility, making them more vulnerable to negative influences and outside pressures. Id.
at 68 (discussing Roper). Juveniles should not be absolved of their transgressions, but they
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are not as morally reprehensible, and, consequently, not as deserving of the most severe
punishments. Id. (quoting Thompson, 487 U.S. at 835). The Court emphasized:
“[D]evelopments in psychology and brain science continue to show fundamental
differences between juvenile and adult minds. For example, parts of the brain
involved in behavior control continue to mature through late adolescence. [Citations.]
Juveniles are more capable of change than are adults, and their actions are less likely
to be evidence of ‘irretrievably depraved character’ than are the actions of adults.
Roper, 543 U.S., at 570. It remains true that ‘[f]rom a moral standpoint it would be
misguided to equate the failings of a minor with those of an adult, for a greater
possibility exists that a minor’s character deficiencies will be reformed.’ Ibid.” Id.
The Court also observed that a life-without-parole sentence is the second most severe penalty
permitted by law. Id. at 69.
¶ 161 Turning to penological goals, the Court stated that retribution could not support
life-without-parole sentences for juveniles: The case for retribution is just not as strong with
a minor as with an adult. Id. at 71 (quoting Roper, 543 U.S. at 571). The Court further stated
that deterrence could not support such a sentence because juveniles are less likely to consider
possible punishment when making decisions due to their impulsiveness and impetuosity. Id.
at 72. Regarding incapacitation, the Court stated, “To justify life without parole on the
assumption that the juvenile offender forever will be a danger to society requires the
sentencer to make a judgment that the juvenile is incorrigible. The characteristics of juveniles
make that judgment questionable.” Id. at 72-73. Stated differently, “ ‘incorrigibility is
inconsistent with youth.’ ” Id. at 73 (quoting Workman v. Commonwealth, 429 S.W.2d 374,
378 (Ky. Ct. App. 1968)). Finally, the Court stated that rehabilitation cannot justify a
life-without-parole sentence because the penalty “forswears altogether the rehabilitative
ideal.” Id. at 74. Such a judgment is not appropriate in light of juveniles’ capacity for change.
Id. They should not be deprived of the opportunity to achieve maturity of judgment and
self-recognition of human worth and potential. Id. at 79. The Court concluded that an
offender’s age is relevant to the eighth amendment, and “criminal procedure laws that fail to
take defendants’ youthfulness into account at all would be flawed.” Id. at 76.
¶ 162 In Miller, the Court considered whether the eighth amendment prohibited mandatory
life-without-parole sentences for juveniles who commit murder. The Court began by
examining two lines of precedent: the categorical ban cases like Roper and Graham, and
capital cases where the Court has required the sentence to consider the characteristics of the
defendant and the circumstances of the offense before imposing the death penalty. According
to the Court, Roper and Graham establish that “children are constitutionally different from
adults for purposes of sentencing.” Miller, 567 U.S. at ___, 132 S. Ct. at 2464. Those cases
relied on three significant gaps between juveniles and adults. First, juveniles lack of maturity
and a developed sense of responsibility. Id. at ___, 132 S. Ct. at 2464 (quoting Roper, 543
U.S. at 569). Second, juveniles are more vulnerable to negative influences, so they lack the
ability to extricate themselves from crime-producing settings. Id. at ___, 132 S. Ct. at 2464.
Third, juveniles lack well formed and fixed characters, and their actions are not indicative of
irretrievable depravity. Id. at ___, 132 S. Ct. at 2464. Those were not only supported by
common sense, but also by social science. Id. at ___, 132 S. Ct. at 2464. The Court noted that
“none of what [Graham] said about children—about their distinctive (and transitory) mental
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traits and environmental vulnerabilities—is crime-specific. *** So Graham’s reasoning
implicates any life-without-parole sentence imposed on a juvenile, even as its categorical bar
relates only to nonhomicide offenses.” Id. at ___, 132 S. Ct. at 2465. In short, “youth
matters” in determining the appropriateness of a life-without-parole sentence. Id. at ___, 132
S. Ct. at 2465.
¶ 163 The Court stated that the mandatory penalty schemes there prevented the sentencer from
taking account of these central considerations:
“By removing youth from the balance—by subjecting a juvenile to the same
life-without-parole sentence applicable to an adult—these laws prohibit a sentencing
authority from assessing whether the law’s harshest term of imprisonment
proportionately punishes a juvenile offender. That contravenes Graham’s (and also
Roper’s) foundational principle: that imposition of a State’s most severe penalties on
juvenile offenders cannot proceed as though they were not children.” Id. at ___, 132
S. Ct. at 2466.
¶ 164 The Court concluded that mandatory life-without-parole sentences for juveniles violate
the eighth amendment (id. at ___, 132 S. Ct. at 2469), but insisted that its holding, while
flowing from its holdings in Roper and Graham, was not a categorical bar like those imposed
there (id. at ___, 132 S. Ct. at 2471). Instead, the Court mandated only that the sentencer
consider an offender’s youth and its attendant characteristics before imposing such a penalty.
Id. at ___, 132 S. Ct. at 2471. By treating every juvenile as an adult, the sentencer “misses
too much,” including the juvenile’s chronological age and immaturity, his family and home
environment, and his degree of participation in the offense, as well as the fact that he might
have been charged and convicted of a lesser offense if not for his own incompetencies—“for
example, his inability to deal with police officers or prosecutors *** or his incapacity to
assist his own attorneys.” Id. at ___, 132 S. Ct. at 2468.
¶ 165 The Court rejected the states’ arguments that a national consensus in favor of mandatory
life-without-parole sentences for juveniles exists. Id. at ___, 132 S. Ct. at 2471. As it did in
Graham, the Court downplayed the fact that a majority of states allow such sentences. Id. at
___, 132 S. Ct. at 2471. “[S]imply counting them would present a distorted view,” because
most of those states do not have separate penalty provisions for juveniles tried in criminal
court and impose penalties regardless of age. Id. at ___, 132 S. Ct. at 2471. And the presence
of discretion in some states’ transfer statutes does not make the consensus stronger because
many states use mandatory transfer systems:
“Of the 29 relevant jurisdictions, about half place at least some juvenile homicide
offenders in adult court automatically, with no apparent opportunity to seek transfer
to juvenile court. Moreover, several States at times lodge this decision exclusively in
the hands of prosecutors, again with no statutory mechanism for judicial reevaluation.
And those prosecutorial discretion laws are usually silent regarding standards,
protocols, or appropriate considerations for decisionmaking.” (Internal quotation
marks omitted.) Id. at ___, 132 S. Ct. at 2474.
Notably, the Court cited, not approvingly, section 5-130 as one of the automatic transfer
statutes. See id. at ___ n.15, 132 S. Ct. at 2474 n.15.
¶ 166 In those three cases, the Court outlined the proper analysis for reviewing the
constitutionality of the automatic transfer statute under the cruel and unusual punishment
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clause and the proportionate penalties clause. First, the court must consider objective indicia
of society’s standards, as expressed in legislation across the country regarding automatic
transfers. Second, the court must exercise its own independent judgment and consider the
culpability of juveniles subject to that provision, the severity of their sentences due to that
provision, and the legitimate penological goals behind that provision—that is, how well it
serves the state’s interest in the four goals that the Supreme Court has recognized as
legitimate: retribution, deterrence, incapacitation, and rehabilitation. See Graham, 560 U.S.
at 71 (citing Ewing v. California, 538 U.S. 11, 25 (2003) (plurality op.)).
¶ 167 On the first point, society’s standards have changed since 1982, when the General
Assembly first passed the automatic transfer statute. As the Supreme Court stated in Miller,
Illinois is now one of only 14 states with statutes that fail to provide juveniles with an
opportunity to seek transfer back to juvenile court, a fact of which the Supreme Court is
aware. Miller, 567 U.S. at ___ n.15, 132 S. Ct. at 2474 n.15.1 Additionally, the National
Conference of State Legislatures has observed legislative initiatives between 2001 and 2011
that “reflect the trend in states to treat and rehabilitate youth in the juvenile justice system
instead of sending them to the more punitive-oriented adult system.” Sarah A. Brown, Nat’l
Conf. of St. Legislatures, Trends in Juvenile Justice State Legislation: 2001-2011 5 (2012),
available at http://www.ncsl.org/documents/cj/trendsinjuvenilejustice.pdf. See Neelum Arya,
Campaign for Youth Just., State Trends: Legislative Victories From 2005 to 2010 Removing
Youth From the Adult Criminal Justice System 33 (2011), available at http://www.campaign
foryouthjustice.org/documents/CFYJ_State_Trends_Report.pdf (documenting a trend in 10
states to change transfer laws); see also People v. Willis, 2013 IL App (1st) 110233, ¶ 53
(“we see a nationwide trend developing to treat juvenile offenders differently than adult
offenders”).2
¶ 168 On the second point, an exercise of our independent judgment must be informed by
Roper, Graham, and Miller. Regarding culpability, every statement that the Court made
about juveniles, their psychological traits, and their developmental paths applies with as
much force in this case as those. Juveniles, like the defendant, are less culpable than adults.
Compared to adults, they lack maturity and a developed sense of responsibility. See Roper,
543 U.S. at 569; Graham, 560 U.S. at 68; Miller, 567 U.S. at ___, 132 S. Ct. at 2464.
Compared to adults, they are more vulnerable to negative influences and outside pressures
from family and peers, and have little control over their own environments. See Roper, 543
U.S. at 569; Graham, 560 U.S. at 68; Miller, 567 U.S. at ___, 132 S. Ct. at 2464. And
compared to adults, their characters are not well formed, their traits are less fixed, and their
behavior is less indicative of irretrievable depravity or irreparable corruption. Roper, 543
U.S. at 569-70; Graham, 560 U.S. at 68; Miller, 567 U.S. at ___, 132 S. Ct. at 2464.
1
As amici inform us, that number shrinks further in cases involving offenses that correspond with
aggravated criminal sexual assault in Illinois because only ten of those states allow automatic transfers
for such offenses.
2
That trend has reached Illinois. A bill to repeal section 5-130 is currently pending in the Illinois
House of Representatives. See 98th Ill. Gen. Assem., House Bill 4538, 2013 Sess. The bill, introduced
by Representative Nekritz and co-sponsored by seven other legislators, was approved by the House
Judiciary Committee in March, and has been re-referred to the House Rules Committee. Clearly, some
members of the General Assembly see the need for change.
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¶ 169 Those decisions rely not only upon common sense, but also social science. Studies have
shown differences in adult and juvenile minds. The transient rashness, proclivity for risk, and
inability to assess consequences that mark the latter both lessen juveniles’ moral culpability
and enhance their prospects for reform. See Roper, 543 U.S. at 570; Graham, 560 U.S. at 68;
Miller, 567 U.S. at ___, 132 S. Ct. at 2464-65.
¶ 170 Regarding sentence severity, Roper, Graham, and Miller are not “crime-specific” (Miller,
567 U.S. at ___, 132 S. Ct. at 2465), but neither are they sentence-specific. Juveniles are less
deserving of harsh punishments (see Roper, 543 U.S. at 569; Graham, 560 U.S. at 68; Miller,
567 U.S. at ___, 132 S. Ct. at 2464), particularly when those punishments are mandatory, and
the legislature has robbed the sentencer of the ability to consider a juvenile’s individual
characteristics in assessing whether such a punishment is proportionate to the offense. Id. at
___, 132 S. Ct. at 2468 (“Graham and Roper and our individualized sentencing cases alike
teach that in imposing a State’s harshest penalties, a sentencer misses too much if he treats
every child as an adult.”). That is what the automatic transfer statute does. The constitutional
infirmity with the statute is not that it exposes juveniles to adult sentences, but that it operates
automatically for those juveniles charged with certain offenses.
¶ 171 I am not suggesting that a categorical ban on all transfers is required. Just as there are
conceivable cases in which a life-without-parole sentence for a juvenile is appropriate (see
Miller, 567 U.S. at ___, 132 S. Ct. at 2469), there are cases in which criminal court is the
proper venue and a sentence under the Unified Code of Corrections is clearly appropriate.
But, after Miller, that determination should be made on an individual basis. In his dissent in
People v. Pacheco, 2013 IL App (4th) 110409, ¶¶ 98-99 (Appleton, J., dissenting), appeal
allowed, No. 116402 (Ill. Sept. 25, 2013), Justice Appleton aptly commented:
“While there are juvenile offenders who may, based on the totality of the
circumstances, be eligible for adult prosecution, an automatic transfer provision based
on age and offense alone, without consideration of the wide variance in the maturity,
sophistication, intelligence, and social adjustment of any particular juvenile offender,
cannot pass constitutional muster. ***
To be sure, our legislature recognized the increase in violent, homicidal crime
committed by juvenile offenders and sought to address that problem. I believe it is the
blanket transfer based on age that is the flaw in the legislature’s response. Such
decisions are better made on the circumstances of the offender as well as the offense.
In that sense, we should look to both the crime and the nature of the criminal.”
(Emphasis in original.)
¶ 172 Additionally, I recognize that the sentences available for the felonies enumerated under
the automatic transfer statute are not as serious as those addressed by the Supreme Court, at
least pursuant to our decision in People v. Davis, 2014 IL 115595 (holding that Miller applies
retroactively). But we should still consider the fact that, if convicted as adults, juveniles are
much more likely not only to receive heavier sentences than they would have in juvenile
court, but also to receive sentences subject to enhancements and other rules. This defendant
is a good example. As a 15-year-old, he was convicted on three counts of aggravated
criminal sexual assault, sentenced to three mandatory consecutive 12-year terms for a total
term of 36 years’ imprisonment, and, under truth-in-sentencing rules, must serve 85% of that
term, or 30.6 years. He will be eligible for release after his 45th birthday, and the prospects
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of him becoming a useful member of society will be greatly diminished. See also People v.
Jenkins, 2013 IL App (1st) 103006-U, appeal allowed, No. 115979 (Ill. Sept. 25, 2013)
(involving an automatic transfer for murder and a 45-year sentence due to a mandatory
firearm add-on and truth-in-sentencing rules); Pacheco, 2013 IL App (4th) 110409, appeal
allowed, No. 116402 (Ill. Sept. 25, 2013) (involving an automatic transfer for murder based
on accountability, and a 30-year sentence with no good-time credit due to truth-in-sentencing
rules); State v. Null, 836 N.W.2d 41, 71 (Iowa 2013) (holding that lengthy term-of-years
sentences are sufficient to trigger “Miller-type protections”); State v. Lyle, No. 11-1339, 2014
WL 3537026 (Iowa Sept. 30, 2014) (holding that mandatory minimum sentences for
juveniles tried in criminal court violate the state constitution’s provision against cruel and
unusual punishment).
¶ 173 As for the four legitimate penological goals, Graham again is instructive. The case for
retribution is not as strong for juveniles. Additionally, as early as 1996, one commentator had
already criticized the inability of Illinois’s transfer provisions to isolate serious offenders, as
well as the ineffectiveness of those provisions in sanctioning offenders. Elizabeth E. Clarke,
A Case for Reinventing Juvenile Transfer, 47 Juv. & Fam. Ct. J. 3, 4 (Nov. 1996). Back then,
automatic transfer provisions resulted in criminal court proceedings against minors “who are,
more often than not, determined not to be dangerous enough to warrant imposition of a
prison term.” Id. at 19. The statistics have remained largely the same, so that now “[t]he
majority of cases automatically transferred end up convicted for lesser offenses, offenses that
could not have triggered transfer.” See Automatic Adult Prosecution of Children in Cook
County, Illinois. 2010-2012 (Juv. Just. Initiative, Evanston, Ill.), Apr. 2014, at 3, available at
http://jjustice.org/wordpress/wp-content/uploads/Automatic-Adult-Prosecution-of-Children-i
n-Cook-County-IL.pdf (hereinafter Automatic Adult Prosecution).
¶ 174 Similarly, the case for deterrence is not as strong for juveniles. As early as 1993, this
court’s own Special Commission on the Administration of Justice (the Solovy Commission)
reported that an increasing number of juveniles were transferred to criminal court in the first
ten years of the automatic transfer regime without a corresponding deterrent effect, but with a
corresponding negative impact on minority children. See Ill. S. Ct. Special Comm’n on the
Admin. of Justice, Final Report Part II (December 1993). The Solovy Commission even
recommended that the General Assembly consider a “waiver back” provision and an
elimination of mandatory minimum sentences for juveniles in automatic transfer cases. Id.
And those conclusions have only gained support. See Patrick Griffin et al., Trying Juveniles
as Adults: An Analysis of State Transfer Laws and Reporting, Juv. Offenders & Victims Nat’l
Rep. Series (Off. of Juv. Just. & Delinq. Prevention, D.C.), Sept. 2011, at 26, available at
https://www.ncjrs.gov/pdffiles1/ojjdp/232434.pdf (“the weight of the evidence suggests that
state transfer laws have little or no tendency to deter would-be juvenile criminals”); Richard
E. Redding, Juvenile Transfer Laws: An Effective Deterrent to Delinquency?, Juv. Just. Bull.
(Off. of Juv. Just. & Delinq. Prevention, D.C.), June 2010, at 4, available at
https://www.ncjrs.gov/pdffiles1/ojjdp/220595.pdf (“the bulk of the empirical evidence
suggests that transfer laws, as currently implemented, probably have little general deterrent
effect on would-be juvenile offenders”).
¶ 175 Regarding incapacitation, incarcerating all juveniles charged with felonies enumerated in
the transfer statute for lengthy adult sentences is little more than a judgment that they will
remain a danger for that entire period, and are essentially incorrigible. Further, the
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rehabilitative services available in juvenile detention are at least as helpful as those in the
adult prison system. A 2007 study by the federal Center for Disease Control shows that
transfer policies generally have had a counter-rehabilitative effect, resulting in increased rates
of recidivism, particularly for violent crime, among juveniles sent to adult court as opposed
to those kept in juvenile court. See Effects on Violence of Laws and Policies Facilitating the
Transfer of Youth From the Juvenile System to the Adult Justice System, Morbidity &
Mortality Wkly. Rep. (Centers for Disease Control & Prevention, Atlanta, Ga.), Nov. 30,
2007, at 9, available at http://www.cdc.gov/mmwr/PDF/rr/rr5609.pdf (“To the extent that
transfer policies are implemented to reduce violent or other criminal behavior, available
evidence indicates that they do more harm than good.”); see also Automatic Adult
Prosecution, at 3 (“More than 30 years’ of studies have consistently demonstrated that
categorical treatment of children as adults prevents rehabilitation and positive development,
fails to protect public safety, and yields profound racial, ethnic and geographic disparities.”).
¶ 176 The majority concludes that the eighth amendment does not apply. The majority is
wrong. Criminal procedure laws that fail to take defendants’ youthfulness into account at all
are flawed. See Graham, 560 U.S. at 76.3 Like the laws involved in Roper, Graham, and
Miller, section 5-130 is mandatory and inflexible. Every juvenile who commits one of the
enumerated offenses is treated like every adult who commits the same offenses. Transfers are
automatic, and the statute contains no mechanism by which a judge can consider
characteristics of juveniles before transferring them to criminal court, where, if convicted,
they face stiffer adult penalties, enhancements, and other rules to extend their time in prison.
To comport with federal and state constitutions, transfer proceedings must take into account
how children are different and how those differences may counsel against sending them to
criminal court. Here, a judge should have been allowed to consider the defendant’s
intelligence, his psychological and developmental issues, his family history and status as a
ward of the State, as well as any other characteristics that would have aided in making such a
determination.
¶ 177 Our state, home of the country’s first juvenile court and once a leader in juvenile justice
reform, should not be a place where we boast of locking up juveniles and throwing away the
key. Illinois should be a place where youth matters, and we work to tailor punishment to fit
the offense and the offender, as required by our federal and state constitutions. For juveniles,
that starts with abolishing automatic transfers.
¶ 178 I respectfully dissent.
3
The majority cites City of Urbana v. Andrew N.B., 211 Ill. 2d 456, 486 (2004) for the proposition that
“[w]hether a defendant is tried in juvenile or criminal court is purely a matter of procedure.” Supra ¶ 104. But,
that proposition comes from Justice Freeman’s dissent. More importantly, the majority ignores the breadth of the
Court’s statement in Graham. If, as the majority indicates, transfer statutes are criminal procedure laws, and if
criminal procedure laws that fail to consider a defendants’ youth are flawed, then, logically, section 5-130, which
operates automatically and gives judges no discretion to factor a juvenile’s age into the transfer decision, is
flawed.
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