People v. Martin ( 1996 )


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  • 5th Division
    November 27, 1996.
    No. 1-94-3937
    THE PEOPLE OF THE SATTE OF ILLINOIS,)
    )   APPEAL FROM THE CIRCUIT
    Plaintiff-Appellee,       )   COURT OF COOK COUNTY
    )
    v.                             )
    )   HONORABLE JOHN E.
    SHERARD MARTIN,                     )   MORRISSEY AND ARTHUR
    )   ROSENBLUM, JUDGES
    Defendant-Appellant.      )   PRESIDING.
    )
    JUSTICE GORDON delivered the opinion of the court:
    Defendant, Sherard Martin, appeals from the order of the
    juvenile division of Circuit Court of Cook County transferring
    him to the criminal division for trial as an adult on the charge
    of first degree murder.  After the transfer, the defendant was
    convicted of that charge and was sentenced to a 25-year term of
    imprisonment in the Illinois Department of Corrections.  The
    defendant appeals from the transfer order and contends that, if
    the transfer order is reversed, his conviction in the criminal
    court should be reversed and the case remanded for a new transfer
    hearing.
    On June 17, 1992, the defendant, who was 14 years old, was
    arrested for the murder of Fred Harper.  In accordance with
    section 5-4(3) of the Illinois Juvenile Court Act of 1987 (the
    Juvenile Court Act) (705 ILCS 405/5-4(3) (1992)), the State moved
    for entry of an order permitting prosecution of the defendant as
    an adult.
    At the hearing on the transfer motion, the testimony of the
    State's witnesses revealed that on May 9, 1992 nineteen-year-old
    Fred Harper, the victim, and Vascoe Zinnerman, his friend, saw a
    car parked outside Zinnerman's house with its windows broken.  As
    Harper and Zinnerman made inquiries as to who had broken the
    windows, they encountered four youths, one of whom was the
    defendant.  The defendant and Harper had "exchanged words"
    earlier that day.  As the defendant approached Harper, Harper
    pulled a beer bottle from a trash can and held the bottle at his
    side.  Words were exchanged and Harper dropped the beer bottle
    and turned to walk away.  Thereafter, Zinnerman saw one of the
    youths hand a gun to another of the youths.  He grabbed Harper
    and began to run.  The youth holding the gun fired it striking
    Harper in his back as he was walking away.  Harper died on June
    10, 1992 as a result of the injuries he sustained from the
    shooting.  Zinnerman identified the defendant in a line-up as the
    person who fired the gun.
    On June 17, 1992, the defendant was questioned by the police
    and confessed to shooting Harper.  In his written statement
    prepared at the police station, the defendant stated that he
    encountered Harper and Zinnerman at approximately 8 p.m. on the
    night of the shooting.  At that time, Harper and Zinnerman were
    riding their bicycles.  Harper accused the defendant of calling
    him a "hype" (a slang for drug dealer), threatened to beat the
    defendant up and then rode away.  Thereafter, the defendant and
    his friend, Reginald, went to a garage and the defendant
    retrieved a ".38 special."  The defendant stated that later that
    evening he, Reginald and two additional friends walked toward a
    McDonald's restaurant and passed Zinnerman's house and the car
    with the broken windows.  While they were at the McDonald's
    restaurant, Harper came into the restaurant, looked at them and
    left.  When the defendant and his friends left the restaurant,
    Harper and Zinnerman were walking about 20 feet away.  Harper
    took a bottle from a garbage can and put it under his jacket.
    When Harper and Zinnerman were about 6 or 7 feet away, they
    turned and stood in front of the defendant and his friends.  The
    defendant stated that Harper accused  him of breaking the car
    windows but he denied that he had and pulled out his gun, holding
    it at his side.  Zinnerman walked away while Harper continued to
    stand there for about a minute or two.  After Harper turned to
    walk away and was about 15 or 16 feet away, the defendant shot
    him.
    Irene Porter, the probation officer assigned to the
    defendant in November 1991, after he had been adjudicated a
    delinquent based upon the commission of a theft, was called by
    the State and testified that in 1991 she conducted a social
    investigation of defendant's family, maintained almost monthly
    contact with the defendant, and provided him with "minimum"
    counseling consistent with her limited abilities and training.
    (Porter had been a probation officer for thirteen years and had
    two years of training in family therapy.)  Porter also had
    several conversations with defendant's mother and made calls to
    defendant's school.  The mother gave no negative reports; and the
    defendant was attending school regularly but was maintaining a
    "D" average.
    Porter testified that in 1991 the defendant had "three
    station adjustments" for two batteries and a disorderly conduct
    offense and one court referral for theft of an automobile.
    Porter identified a social report she prepared dated June 26,
    1992; a supplemental report dictated January 20, 1993; and a
    supplemental report and addendum dictated June 8, 1993 which she
    prepared for purposes of the instant hearing.   Porter testified
    that before she prepared her third report she had become aware of
    seventeen rule violations committed by the defendant while he was
    at the juvenile detention center.
    Porter acknowledged that in her first report, she noted that
    the defendant had no remorse after shooting Harper and was only
    concerned as to when he would be released.  That report contained
    no expressed preference as to whether the defendant should remain
    in the juvenile correctional system.  Porter's second report
    contained the recommendation that the defendant remain in the
    juvenile system.  That recommendation was based upon defendant's
    admission to her of only two rule violations.  At that time, she
    felt that the defendant was responding to the "intervention of
    the detention center" by the teachers, social workers and other
    people who were there to address his needs.  After Porter became
    aware of the seventeen rule violations, she prepared a third
    report because she saw the development of a pattern of behavior.
    In that report Porter recommended that the defendant be tried as
    an adult.
    On cross-examination, Porter stated that she was not trained
    to provided intensive counseling for severe conduct disorders or
    other psychological problems.  In her opinion, based upon her
    discussions with the defendant and four conversations with
    defendant's mother, the defendant's earlier problems were not
    severe enough to warrant that type of counseling.  She stated
    that her first conversation with defendant's mother lasted over
    an hour and the remaining three lasted about ten minutes each.
    She also stated that, when she met with the defendant, he was
    polite and cooperative.  When asked about defendant's behavior at
    the detention center, Porter stated that she received positive
    reports from defendant's teachers and that his performance
    improved at the center over a period of time.
    When questioned about the reports she prepared, Porter
    testified that when she prepared the first report, she was aware
    of the services offered by the juvenile and adult systems but was
    unsure as to which one would best meet the defendant's needs.
    She further stated that, after reviewing the rule violation
    reports and after talking with school personnel at the detention
    center, she became aware of other facets to the defendant's
    personality.  That information combined with a review of
    defendant's legal history, led her to change her recommendation
    in favor of transfer.  She admitted that she never talked to any
    of the people who issued the rule violations and never determined
    whether the violations actually occurred.  Porter knew that if
    the defendant were convicted by the juvenile court he could only
    be detained until he was twenty-one years old whereas if he was
    convicted in the adult system he could be sentenced to twenty
    years in the penitentiary.
    "Nonpublishable material omitted under Supreme Court Rule 23."
    Doctor Derrick I. Miller, a psychiatrist whose expertise in
    the area of child and adolescent psychiatry was stipulated to by
    the State, testified concerning his experience in studying,
    diagnosing and treating delinquent and anti-social adolescents.
    Miller testified that he interviewed the defendant on four
    occasions for a total of approximately four hours; interviewed
    the defendant's mother for approximately one hour; and read
    various police and social worker reports concerning the
    defendant.  Miller also visited the St. Charles Youth Center, a
    correctional facility operated by the juvenile division of the
    Illinois Department of Corrections.
    Miller opined that the defendant was treatable because he
    was able to make trusting relationships with people and that the
    St. Charles facility would provide an appropriate treatment
    program for the defendant.  Miller stated that that facility
    could meet the defendant's need to identify with positive male
    role models.  In Miller's opinion, the defendant would need to be
    treated for about two years.
    Miller stated that his determination that the defendant was
    treatable was influenced by the fact that the defendant did not
    enjoy violence and did not intend to kill Harper.  According to
    Miller, the defendant intended to shoot Harper in the buttocks to
    frighten him and prevent future conduct.  That action was a
    learned response, learned within defendant's family environment
    such as when defendant's mother shot and killed her abusive
    boyfriend.  Miller stated that when he interviewed the defendant,
    the defendant indicated that the hospital was responsible for
    Harper's death.  Miller stated that the defendant could learn a
    more effective technique for handling fear during his detention.
    With respect to the defendant's commission of disciplinary
    violations at the detention center, Miller surmised that the
    commission of those violations would not mean that the defendant
    was not amenable to treatment.  Miller stated that the violations
    occurred because the defendant, in seeking male relationships,
    would test the attendants to see how they would handle him when
    he was being difficult.  According to Miller, the defendant would
    respect and admire the attendant if the attendant handled him
    well.  Miller also testified that the defendant was very educable
    and that the defendant was positive about his schooling at the
    detention center.  In Miller's opinion, the defendant would lose
    motivation if he knew he would be transferred to the adult
    system.
    On cross-examination, Miller testified that he had not
    visited or had any experience with the adult division of the
    Department of Corrections.  He admitted that there were
    educational and vocational programs at adult facilities but could
    not answer the question as to whether there would be any
    differences in the treatment of the defendant at the juvenile
    division facilities as opposed to the adult division facilities.
    He admitted that when investigating defendant's rule violations
    the only person he talked to was the defendant.
    Upon questioning from the court, Miller stated that at the
    time of the shooting and at the time of the transfer hearing the
    defendant was "amoral."  Miller stated that the defendant had
    some degree of control over his actions, that he knew what he was
    doing at the time of the shooting, and that he used violence to
    deter Harper from returning.
    "Nonpublishable material omitted under Supreme Court Rule
    23."
    At the conclusion of the transfer hearing, the trial court
    granted the State's petition to transfer prosecution of the
    defendant to the criminal division.  The court's ruling was
    prefaced by an extensive review of the evidence and testimony
    which comprised thirty-one pages of the record.  The defendant
    challenges several comments which will be discussed below as they
    relate to the issues raised.
    On appeal, the defendant argues that the trial court's order
    granting the State's motion to transfer should be reversed for
    the following reasons:  (1) he was denied a fair and impartial
    hearing because the trial court was prejudiced against
    psychiatric expert testimony and failed to recuse himself because
    of that prejudice; (2) the trial court improperly relied upon
    evidence outside the record; and (3) the trial court's
    determination in favor of transfer was an abuse of discretion.
    The waiver of jurisdiction by a juvenile court is a critical
    action that determines important statutory rights of a juvenile
    and, as such, must be occur within the limits of due process and
    within applicable statutory guidelines.  People v. Clark, 
    119 Ill. 2d 1
    , 
    518 N.E.2d 138
     (1987) citing Kent v. United States,
    
    383 U.S. 541
    , 
    86 S. Ct. 1045
    , 
    16 L. Ed. 2d 84
     (1966).  In
    Illinois, the transfer determination is discretionary with the
    juvenile court based upon its consideration of seven factors
    enumerated in section 5-4 of the Juvenile Court Act.  705 ILCS
    405/5-4 (West 1992).  See Clark, 
    119 Ill. 2d 1
    , 
    518 N.E.2d 138
    ;
    People v. Newell, 
    135 Ill. App. 3d 417
    , 
    481 N.E.2d 1238
     (1985).
    Those factors, which balance the rehabilitative interests of the
    alleged juvenile offender against society's interest in
    protection from criminal victimization (Clark, 
    119 Ill. 2d 1
    , 
    518 N.E.2d 138
    ), include:  (1) whether there is sufficient evidence
    upon which a grand jury may be expected to return an indictment;
    (2) whether there is evidence that the alleged offense was
    committed in an aggressive and premeditated manner; (3) the age
    of the minor; (4) the previous history of the minor; (5) the
    treatment and rehabilitation of the minor; (6) whether the best
    interest of the minor and the security of the public may require
    that the minor continue in the custody or under supervision for a
    period extending beyond his minority; and (7) whether the minor
    possessed a deadly weapon when committing the alleged offense.
    705 ILCS 405/5-4 (West 1992).  No one factor is determinative nor
    is each factor required to be given equal weight.  Newell, 
    135 Ill. App. 3d 417
    , 
    481 N.E.2d 1238
    ; People v. Thomas, 
    94 Ill. App. 3d 895
    , 
    419 N.E.2d 480
     (1981).  The State need only present
    sufficient evidence to persuade the court that transfer is
    warranted in light of these statutory criteria.  People v.
    Taylor, 
    76 Ill. 2d 289
    , 
    391 N.E.2d 366
     (1979).  Where the record
    shows that the juvenile court considered all of the factors and
    that its determination was not an abuse of discretion, the
    court's ruling will be affirmed on appeal.  Clark, 
    119 Ill. 2d 1
    ,
    
    518 N.E.2d 138
    ; Newell, 
    135 Ill. App. 3d 417
    , 
    481 N.E.2d 1238
    .
    The defendant first argues that he was denied a fair,
    impartial and unbiased transfer hearing based upon certain
    statements made by the trial judge which the defendant contends
    evidenced a prejudice against psychiatric experts.  In support of
    this argument, the defendant excerpts the following statements
    made by the trial judge occurring on one and one-half pages of
    the record:
    "There is a recent book called "Once Upon a Time".  I
    may be bringing evidence, in my opinion, which maybe I
    shouldn't.  In that book the woman remembered her
    father killed her best friend twenty years before; a
    psychiatric theory now called exhumed [sic] memory.
    You remember a fact that you were raped by your father
    or something like that.
    But American courts have characteristically
    referred to psychiatrists and psychologists to tell
    jurists what they ought to decide.  The results have
    been an industry of hired guns.  Hired guns with
    degrees who can be counted on to render their signature
    without undue attention to the problem at hand.
    Three habitual witnesses have, therefore, found
    ample employment, contradicting one another.  There is
    an epidemic of psychiatrists and psychologists which
    hasn't prevented anyone with a credential and an ax to
    grind from hurrying to the courtroom to describe under
    oath his pet conception of mental functioning, as if it
    established a scientific fact.
    When the State's Attorney is here and here and
    here, they may not know as much as we do.  That's
    what's pointed out in this very well written treatise.
    It says In Broad Daylight, that's the name, it points
    out their effectiveness with a jury has more to do with
    their charisma.
    The less educated juror was fully as qualified to
    guess what was going on in the witnesses mind as the
    most expert witness money could buy."  S.R. 878-80
    The defendant argues that these comments demonstrate the
    preexistence of strong personal prejudice against psychiatric
    expert testimony and that the trial judge could not fairly
    evaluate and weigh the testimony of his expert witness, Doctor
    Miller.  The defendant further contends that because of his
    prejudice, the trial judge should have recused himself when he
    became aware that psychiatric testimony would be presented.
    According to the defendant, the judge's failure to recuse himself
    sua sponte violated Canon 3(C)(1)(a) of the Illinois Code of
    Judicial Conduct (113 Ill. 2d R. 63(C)(1)(a) (1986)) and amounted
    to reversible error.  See People v. Austin, 
    116 Ill. App. 3d 95
    ,
    
    451 N.E.2d 593
     (1983) (violation of judicial canon may result in
    reversible error).
    Comments which prejudge the credibility of a class of
    witnesses without regard to the individual credibility of each
    witness and which dismiss as unworthy any body of expertise
    otherwise recognized as providing admissible probative evidence
    are egregious and should be condemned.  However, remarks of this
    nature should be viewed in context and should be evaluated in
    terms of trial judge's specific reaction to the witnesses
    involved in the particular case.  See People v. Hannon, 
    48 Ill. 2d 462
    , 
    273 N.E.2d 9
     (1971) (when evaluating bias based upon
    judge's comment, reviewing court will review entire context of
    comment).  In that respect, and in context, we note that the
    judge's comments highlighted by the defendant in the instant case
    occurred on less than two pages of the thirty-one-page oral
    pronouncement.  We also note that the judge's use of the words
    "hired guns" and "habitual witnesses" was not directed
    specifically at defendant's psychiatric witness, Doctor Miller.
    They were made in the context of the judge's reference to two
    books he had read, the appropriateness of which will be discussed
    below, that apparently discussed the use of expert witnesses such
    as psychiatrists and psychologists in trials.  The judge's
    reference to those books was brief and appears to be the judge's
    interpretation of the authors' opinions of expert testimony.
    When viewed in context, there is no compelling indication in the
    record that the trial judge shared the authors' beliefs or that
    the judge failed to consider the psychiatric testimony offered by
    the defendant.  In point of fact, the judge's comments appear to
    be directed towards demonstrating, perhaps, under the
    circumstances, inappropriately, an awareness of some forensic
    literature dealing with the subject rather than any personal
    prejudgment or belief.
    Our conclusion that the conduct of the trial judge was not
    sufficient to establish judicial bias against defendant's
    witness, Doctor Miller, is supported by the fact that immediately
    preceding the comments excerpted by the defendant the judge
    stated the following:
    "Now we pick up Dr. Miller.  I find him imminently
    [sic] qualified.  He works for Northwestern Clinic.  I
    think he was honest in what he said and I accept what
    he said."  S.R. 878
    Moreover, at the conclusion of the remarks excerpted by the
    defendant, the judge stated:
    "So, I don't discount what Dr. Miller said, but I want
    to point out some of the things he did say.  Some of
    the things I think was [sic] right on the button."
    S.R. 880
    Thereafter, in discussing Miller's testimony, the judge stated
    that he agreed with Miller's testimony that the defendant's home
    was disruptive and dysfunctional; that the defendant associated
    with excessive violence and was under stress; that the defendant
    lacked a male role model; that the defendant chose to shoot
    Harper and the shooting was a correctional action taken by the
    defendant against Harper; and that the defendant had no respect
    for authority.  The trial judge's impartiality and open-
    mindedness toward Miller also was demonstrated by the fact that
    the trial judge personally directed numerous questions to Miller
    during the transfer hearing.  The judge asked Miller about the
    defendant's lack of and need for a male role model; whether
    defendant's transfer to the adult system would impede his
    progress and cause a loss of motivation; whether the defendant
    would get a sense of accountability if he were sent to the adult
    system; whether the juvenile or adult penal systems in Illinois
    followed programs of treatment similar to the successful programs
    conducted by Miller; whether Miller could predict that in three
    years the defendant would be a normal, contributing member in
    society; whether Miller had evaluated any juvenile facility other
    than the one located in St. Charles; whether the defendant was
    able to link his shooting of Harper with Harper's death; whether
    the defendant's use of violence when he was under stress could be
    corrected within three years; and whether at the time of the
    shooting and at the time of trial the defendant was amoral or
    immoral.  See People v. Blanck, 
    263 Ill. App. 3d 224
    , 
    635 N.E.2d 1356
     (1994) (isolated comment by trial judge did not establish
    actual prejudice or that trial judge would be unable to act
    fairly); McClelland v. McClelland, 
    231 Ill. App. 3d 214
    , 
    595 N.E.2d 1131
     (1992) (viewing record as a whole, cumulative effect
    of inappropriate remarks by trial judge did not deprive
    petitioner of fair trial or constitute reversible error); In re
    Marriage of Tisckos, 
    161 Ill. App. 3d 302
    , 
    514 N.E.2d 523
     (1987)
    (on review of record as a whole, trial judge's improper comment
    was made in passing and was not reflective of bias requiring
    reversal).  Cf. People v. Eckert, 
    194 Ill. App. 3d 667
    , 
    551 N.E.2d 820
     (1990) (defendant denied fair trial where repeated
    expressions of hostility against defense counsel by court and
    where improper restrictions placed on counsel during cross-
    examination).  Thus, when the judge's comments and actions
    throughout the course of the transfer hearing are viewed in their
    entirety, we cannot say that the judge was biased or prejudiced
    against psychiatric experts as a whole or against defendant's
    expert, Doctor Miller, specifically, such that the defendant was
    denied a fair and impartial transfer hearing.  Because we find
    that, when viewed in context, we are unable to conclude that the
    trial judge exhibited a predisposed bias, we correspondingly
    cannot conclude that there was a violation of any judicial cannon
    resulting from the judge's failure to sua sponte recuse himself.
    The defendant next argues that the trial court improperly
    relied upon evidence outside the record, namely, the two books
    mentioned above, and whether the trial judge improperly
    speculated as to the length of time that the defendant would
    serve if convicted as an adult or if adjudicated as a juvenile.
    It is well settled that a trial court's deliberations are
    limited to the record made before him during the course of trial,
    and the trial court cannot make a determination based upon its
    private investigation or knowledge untested by cross-examination
    or rules of evidence.  E.g., People v. Wallenberg, 
    24 Ill. 2d 350
    , 
    181 N.E.2d 143
     (1962); People v. Gilbert, 
    68 Ill. 2d 252
    ,
    
    369 N.E.2d 849
     (1977); In re Marriage of Pleasant, 
    256 Ill. App. 3d 742
    , 
    628 N.E.2d 633
     (1993).  It is also well settled that when
    the trial court is the trier of fact every presumption will be
    accorded that the judge considered only admissible evidence and
    disregarded inadmissible evidence in reaching his conclusion.
    Wallenberg, 
    24 Ill. 2d 350
    , 
    181 N.E.2d 143
    ; Gilbert, 
    68 Ill. 2d 252
    , 
    369 N.E.2d 849
    .  In the instant case we do not believe that
    this presumption was rebutted by the record before us.  See
    Gilbert, 
    68 Ill. 2d 252
    , 
    369 N.E.2d 849
    .  Here, all that the
    record shows with respect to the two books is that the trial
    judge made a reference to them in a little more than one page of
    a thirty-one page pronouncement in the record.  The judge
    prefaced his citation to the books with a statement that he found
    Doctor Miller to be "eminently" qualified and acknowledged that
    "[he] may be bringing in evidence *** which maybe [he]
    shouldn't."  The judge concluded his reference to the books by
    stating that he was not "discounting" Doctor Miller's testimony.
    That the judge was not biased against Miller is further supported
    by the record which is replete with questions posed by the judge
    to Miller which show an attempt by the judge to understand
    Miller's testimony and its ramifications.
    Moreover, as will be discussed below, the trial judge made
    his determination in favor of transfer after making extensive
    findings with respect to the seven statutory factors delineated
    in section 5-4 of the Juvenile Court Act.  It is the court's
    extensive review of the evidence as it related to the transfer
    statute and the court's focus on that evidence rather than on the
    authors' opinions in the two books that distinguishes this case
    from the cases cited by the defendant.  In those cases, i.e.,
    People v. McMiller, 
    410 Ill. 338
    , 
    102 N.E.2d 128
     (1951); People
    v. Cooper, 
    398 Ill. 468
    , 
    75 N.E.2d 885
     (1947); Pleasant, 
    256 Ill. App. 3d 742
    , 
    628 N.E.2d 633
     (1993); and Patton v. Armstrong, 
    6 Ill. App. 3d 998
    , 
    286 N.E.2d 351
     (1972), the trial judges'
    recorded statements clearly indicated that they had considered
    matters dehors the record and relied upon those matters in
    reaching their decisions.
    We also reject defendant's contention that the trial court
    improperly considered speculative evidence regarding the length
    of time that the defendant would serve if convicted as an adult
    or if adjudicated as a juvenile.
    In the instant case the court estimated that the time the
    defendant would serve if he were tried and convicted as an adult
    would be the minimum twenty-year term of imprisonment.  See 730
    ILCS 5/5-8-1(a)(1) (West 1992).  The court further stated that
    the defendant could earn twelve and one-half years of credit,
    based upon good conduct and educational credits, such that he
    would serve only seven and one-half years.  See 730 ILCS 5/3-6-
    3(2) (West 1992).  The court compared that figure to the time the
    defendant could be held within the juvenile system, which was
    until his twenty-first birthday, a period of six years.
    One of the factors to be considered by the court in making a
    transfer determination is whether the best interest of the minor
    and the security of the public may require that the minor
    continue in custody or under supervision for a period extending
    beyond his minority.  705 ILCS 405/5-4(2)(b)(vi) (West 1992).
    That factor requires a balancing of the competing interests of
    the minor and society and recognizes that it may be necessary to
    incarcerate the minor beyond his minority.  People v. Clark, 
    119 Ill. 2d 1
    , 
    518 N.E.2d 138
     (1987).  As stated in Clark, 
    119 Ill. 2d at 15
    , 
    518 N.E.2d at 144
    , that "balancing calls for
    consideration of which penalty [incarceration to age 21 under the
    juvenile system or incarceration under the Criminal Code (720
    ILCS 5/1-1 et seq. (West 1992)] would best serve both of the
    interests at stake."  In performing that balancing, the court
    must consider the range of penalties under both systems.
    The defendant concedes that the trial court could consider
    the range of sentence that the minor could receive if convicted
    in the adult system.  The defendant also concedes that the
    parties stipulated that, if convicted of first degree murder as
    an adult, the defendant would face a mandatory sentence of
    between twenty and sixty years in prison.  See 730 ILCS 5/5-8-
    1(a)(1) (West 1992).  The defendant argues, however, that the
    court engaged in speculation in presuming that, if convicted as
    an adult, the defendant would be sentenced to the minimum twenty-
    year term of imprisonment and that the defendant would receive
    credits for good conduct to reduce the time he would actually
    serve.  We disagree.
    There is no compelling indication from the record that the
    court ignored the possibility that the defendant could receive a
    sentence greater than twenty years if tried as an adult.  In
    order to determine whether the penalty under the Juvenile Court
    Act or the penalty under the Criminal Code would best serve both
    the competing interests of the minor and society (see Clark, 
    119 Ill. 2d at 15
    , 
    518 N.E.2d at 144
    ), the trial court was required
    to consider the interplay between the relevant sentencing
    statutes and to extrapolate from that based upon the evidence
    before him.  Admittedly, the penalty to be imposed upon the
    defendant under the Criminal Code was not definitive because it
    would be discretionary with the sentencing judge after trial and
    conviction.  The juvenile court judge was well aware of that fact
    because he continuously prefaced its calculations in this regard
    by using the word "if".  It would seem that, in order to compare
    the statutory penalties, the judge should not be precluded from
    considering which sentence was more likely provided the judge
    does not confuse likelihood with certainty.  Here, based upon the
    nature of the crime and the defendant's background, the court
    suggested that a twenty-year term of imprisonment was a more
    reasonable sentence under the Criminal Code.  (In point of fact,
    that possibility was very close to the twenty-five year sentence
    actually imposed.)
    We note that the defendant has cited no case which prohibits
    a judge from considering the more likely sentence within the
    statutory range based upon the nature of the crime and other
    relevant facts such as the defendant's background and record.
    The only case cited by the defendant is People v. Gilbert, 
    68 Ill. 2d 252
    , 
    369 N.E.2d 849
     (1977) which held that it is improper
    for a trial judge to conduct experiments or private
    investigations to produce evidence not introduced at trial.  No
    experiment or investigation was conducted independently by the
    juvenile court judge in the instant case.
    When considering defendant's potential sentence under the
    Criminal Code, the court also was free to take into account the
    defendant's ability to earn good conduct credits that would
    reduce his time served.  That consideration was not speculative
    since good conduct credits are statutorily mandated (see 730 ILCS
    5/3-6-3(2) (West 1992)) and since the good behavior for earning
    those credits is within the defendant's control.  Although the
    judge could not predict how the defendant would conduct himself
    while incarcerated, he could consider that the defendant, through
    his conduct, would reduce his sentence.
    In performing the required balancing, the court is mandated
    to compare the potential lengths of sentence as an adult with the
    limited range of sentence under the Juvenile Act which would
    compel defendant's release upon his reaching the age of majority.
    Based upon these considerations, the trial court concluded that
    the defendant could not be rehabilitated within the period of
    time he could be detained within the juvenile court system and
    that the interests of society and the minor required that the
    minor continue in custody for a period extending beyond his
    minority.  See In Interest of L.J., 
    274 Ill. App. 3d 977
    , 
    654 N.E.2d 671
     (1995) (comparing penalties and determining that best
    interest of minor and society required that minor be tried as
    adult); People v. Booth, 
    265 Ill. App. 3d 462
    , 
    637 N.E.2d 580
    (1994) (court found society would not be protected if juvenile
    incarcerated under the Juvenile Court Act).
    Defendant's final argument on appeal is that the trial
    court's order granting the State's motion to transfer was an
    abuse of discretion.  We disagree.
    The record in the instant case shows that the trial court
    conducted a full hearing and rendered its decision after
    examining the seven factors specified in section 5-4 of the
    Juvenile Court Act.  With respect to those factors, the court
    specifically found that:  (1) there was sufficient evidence upon
    which the grand jury could indict the defendant; (2) the
    defendant did not act in self-defense but, rather, committed the
    offense in an aggressive and premeditated manner as evidenced by
    the fact that he retrieved the gun prior to the incident and shot
    the victim as he walked away and without provocation; (3) the
    defendant was within the statutory age requirement; (4) the
    defendant had a history of violence when rebuffed; and (5) the
    defendant possessed a deadly weapon when committing the alleged
    offense.  With respect to the final two factors, whether juvenile
    facilities were available for treatment and rehabilitation and
    whether the best interest of the minor and the security of the
    public required that the defendant remain in the custody for a
    period extending beyond his minority, the court made extensive
    remarks.  The court cited to Irene Porter's testimony and
    reports, her belief that the defendant has a propensity toward
    violence, and her final recommendation in favor of transfer.  The
    court discussed the testimony of Doctor Miller, who was found to
    be "imminently [sic] qualified" and "honest," concerning
    defendant's dysfunctional and disruptive home life, lack of a
    male role model, and lack of remorse based upon a belief that he
    shot Harper but that the hospital caused Harper's death.  The
    court noted Miller's testimony that the defendant's actions were
    committed by choice and designed to punish Harper for a wrong
    Harper had committed against the defendant.  The court disagreed,
    however, with Miller's estimation that the defendant could be
    rehabilitated after two years of treatment in the juvenile
    division particularly since Miller did not know what counseling
    the defendant would receive or whether the defendant would be
    cooperative.
    In addition, the court noted its personal observations of
    the defendant and the lack of any expression of emotion or
    remorse shown by him.  The court stated that the defendant's face
    was "impassive" and that he was "amoral," perhaps because he was
    not "exposed to any love and tenderness and kindness."  The court
    stated, "I don't believe that the juvenile court has facilities
    necessary to treat him and correct him.  ***  He needs long
    treatment."
    The court then discussed the testimony of the remaining
    witnesses including defendant's four witnesses who had contact
    with him while he was held in the juvenile detention center, who
    stated that the defendant was a good student, had not been a
    disciplinary problem, and could be rehabilitated in the juvenile
    system.  In that regard, the court noted that those various
    witnesses were not psychiatrists and had limited knowledge of
    defendant's rule violations.
    Finally, the court discussed the evidence offered with
    respect to the differences in juvenile and adult correctional
    facilities finding that the education provided in both types of
    facilities was the same; that vocational training was available
    in both; and that counseling and medical treatment were available
    in both, acknowledging, though, that those services were more
    limited in the adult system.  The court concluded by comparing
    the time the defendant would serve if incarcerated under the
    Criminal Code and if incarcerated under the Juvenile Court Act.
    Based upon these specific considerations, it is clear that
    the trial court weighed the last two transfer factors,
    availability of facilities for treatment and rehabilitation and
    the interests of the minor and society, as he had weighed the
    other five factors, in favor of transfer.  In that regard, the
    court was free to give greater weight to the testimony of Irene
    Porter, defendant's juvenile probation officer, who had had the
    longest affiliation with the defendant, who discussed defendant's
    propensity toward violence and who recommended transfer, rather
    than to Miller's expert testimony that the defendant's violent
    nature could be corrected in the juvenile system in two years.
    See People v. Liggett, 
    90 Ill. App. 3d 663
    , 
    413 N.E.2d 534
     (1980)
    (court is not required to accept opinion of expert concerning
    psychological prognosis of defendant).  In reaching its decision
    in favor of transfer, the court also could consider the fact that
    Miller had only visited the St. Charles juvenile facility and had
    no familiarity with the other juvenile facilities or any of the
    adult correction facilities.
    The defendant argues that the court's comment that the
    defendant showed no remorse during the transfer hearing amounted
    to a violation of the defendant's Fifth Amendment right against
    self-incrimination.  In support of this argument, the defendant
    cites to several cases in which reversible error occurred as a
    result of improper comment regarding a defendant's failure to
    testify.  E.g., Lesko v. Lehman, 
    925 F.2d 1527
     (3rd Cir. 1991),
    cert. denied, 
    502 U.S. 898
     (1991); U.S. v. Safirstein, 
    827 F.2d 1380
     (9th Cir. 1987); People v. Ramirez, 
    98 Ill. 2d 439
    , 
    457 N.E.2d 31
     (1983).  Those cases are distinguishable from the case
    at bar because the reprehensible remarks that occurred in them
    were directly related to the defendants' failures to testify
    after they asserted their Fifth Amendment rights.  See Lesko, 
    925 F. 2d 1527
     (improper prosecutorial comment regarding defendant's
    failure to testify on the merits when defendant testified at
    penalty stage); Safirstein, 
    827 F.2d 1380
     (improper enhancement
    of sentence where defendant penalized for exercising privilege
    against self-incrimination and failing to implicate others or
    otherwise admit guilt); Ramirez, 
    98 Ill. 2d 439
    , 
    457 N.E.2d 31
    (improper prosecutorial comment regarding defendant's failure to
    testify during sentencing hearing although defendant testified at
    trial).  Only in Lesko does the comment made by the prosecutor
    during closing argument include a reference to the defendant's
    failure to "say that I'm sorry."  Viewed in its entirety,
    however, that comment was construed by the court to be "a
    condemnation of Lesko's failure to testify about his role in the
    events surrounding the *** homicide."  
    925 F.2d at 1544
    .  Here,
    unlike in the cases cited by the defendant, the remark made by
    the trial judge, that the defendant lacked remorse, cannot be
    construed as implicating the defendant's failure to testify.
    Rather, as is apparent from the remarks set out above, the judge
    was commenting on the defendant's demeanor and lack of affect
    with respect to a crime whose commission the defendant admitted
    to in a writing not challenged on any constitutional grounds.
    See People v. Nelson, 
    92 Ill. App. 3d 35
    , 42, 
    415 N.E.2d 688
    , 694
    (1980) (evidence regarding defendant's demeanor is not within the
    Fifth Amendment privilege); see also Smith v. Estelle, 
    602 F. 2d 694
    , 704 (5th Cir. 1979), aff'd on other grounds, 
    451 U.S. 454
    ,
    
    101 S. Ct. 1866
    , 
    68 L.Ed. 2d 359
     (1981) (suggesting that
    psychiatrist's conclusions concerning defendant's manner or
    deportment, his attention span or facial expressions, are not a
    communicative act protected by the Fifth Amendment).
    Moreover, the judge's observations and conclusions with
    respect to the defendant's affect were corroborated by the
    defendant's own psychiatric expert who testified that the
    defendant was "amoral," consciously chose to shoot Harper after
    Harper had turned to walk away, and was unable to link his act of
    shooting Harper as being the cause of Harper's death.  There is
    no question that defendant's own witness can testify to the
    defendant's amorality based upon his overt communication with the
    defendant.  This is to be distinguished, however, from the
    holding in the Supreme Court case of Estelle v. Smith, 
    451 U.S. 454
    , 
    101 S. Ct. 1866
    , a case cited by the defendant, which
    involved the admission of testimony from a court-appointed
    psychiatrist.  In that case, the psychiatrist sought to testify
    concerning the defendant's lack of remorse or sorrow based not
    upon the psychiatrist's observance of the defendant's demeanor
    but based upon statements the defendant made to the psychiatrist
    during the psychiatric examination.  The Estelle court held that
    the psychiatrist's testimony regarding communicative acts of the
    defendant was inadmissible because the defendant had not been
    admonished before the psychiatric examination that his statements
    could be used against him.  Here, as noted, the court's
    conclusions that the defendant lacked remorse and was "amoral"
    were based upon its own observations of the defendant's demeanor
    during the court proceedings as well as the testimony of the
    defendant's psychiatrist whose observations of the defendant's
    demeanor and communications with the defendant were not subject
    to the constitutional restraints that attach to communications
    with a defendant by court-appointed psychiatrists.
    The defendant's transfer hearing was extensive and
    sufficient evidence to support the court's transfer determination
    was presented.  While there was evidence to support a contrary
    determination, we cannot say that trial court's grant of the
    State's motion to transfer was an abuse of discretion.  See
    Clark, 
    119 Ill. 2d at 19-20
    , 
    518 N.E.2d at
    146-47 for listing of
    cases wherein evidence found sufficient to support trial court's
    transfer determination.
    For the foregoing reasons, the judgment of the circuit court
    of Cook County is affirmed.
    Affirmed.
    COUSINS, Jr. and HOURIHANE, JJ., concur.