People v. Jett

2/18/98                        NO. 5-95-0546

                                  IN THE

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,)  Appeal from the
                                    )  Circuit Court of
     Plaintiff-Appellee,            )  Madison County.
                                    )
v.                                  )  No. 93-CF-1595
                                    )
KAREEM JETT,                        )  Honorable
                                    )  Edward C. Ferguson,
     Defendant-Appellant.           )  Judge, presiding.
_________________________________________________________________

     JUDGE CHAPMAN delivered the opinion of the court:

     Fifteen-year-old Kareem Jett was tried before a jury on 
charges of first-degree murder, attempted murder, home invasion,
and armed robbery.  One of the most incriminating pieces of
evidence against defendant was the statement he made shortly after
his arrest.  Defendant was convicted and was sentenced to a 50-year
prison term for the murder of 87-year-old Irwin Dollinger, a
consecutive 25-year prison term for the attempted murder of Bernice
Boda, and two concurrent 10-year prison terms for armed robbery and
home invasion.  
     On his appeal defendant raises the following issues:  (1)
whether the court erred in denying his motion to suppress, (2)
whether he is entitled to a new sentencing hearing, and (3) whether
his sentence should be reduced.  We affirm.
     At trial, 68-year-old Bernice Boda testified that on October
7, 1993, she went to the senior citizens' center with her friend
Irwin Dollinger, who was 87 years old.  Around 10 o'clock that
evening they went back to her house.  As they were entering, two
young males forced their way into the house.  Boda took the
telephone off the hook to try to call for help.  One of the young
men took the telephone and struck her in the head with it.  The
other young man beat Dollinger.  Boda was knocked down,  was kicked
in the ribs, and was attacked with a knife.  Her attacker tried to
cut her throat.  Boda lost consciousness, but when she regained
consciousness, she was able to reach the telephone and call an
operator.  Boda could not identify her attackers.  She had to have
four surgeries to correct her many injuries.
     Boda testified that Dollinger told the offenders:  "Please
don't hurt us.  We're old people.  You can take anything we've got,
but don't hurt us."  The offender who had attacked Dollinger
responded by hitting him in the stomach and knocking the air out of
him.  Meanwhile, Boda fell to the ground, and the other offender
kicked her hard in the ribs.  At some point, one of the offenders
broke a vase over her head.
     Boda testified that one of the offenders pulled out a steak
knife and tried to cut her throat.  Boda tried to kick him in the
groin, and he said, "You're a spunky old bitch."  He then cut her
throat and she lost consciousness.  Dollinger's throat was cut as
well.  The offenders then took Boda's purse and Dollinger's wallet
and car keys.  They drove away in Dollinger's car.  
     Neurosurgeon Mark Eichler testified that Bernice Boda had open
cuts to her head, as well as the cut throat.  She had multiple
facial fractures, including a fracture of the maxillary sinus and
orbital blowout fractures.  In addition, she had numerous injuries
below the neck, including fractured ribs.  Her most serious injury
was a subdural hematoma, or bleeding on the brain, which caused
damage to brain tissue.  As a result of her injuries, Boda had
major surgery four different times.  Even after surgery, she
suffered from mental confusion, severe headaches, and a lack of
strength.
     Pathologist Charles Short performed the autopsy on Irwin
Dollinger.  His examination revealed blows that were consistent
with having been administered with a cylindrical object or a piece
of concrete.  Dollinger suffered swollen eyes, a cut ear, a broken
sternum, a large neck wound, seven cuts on the scalp, and a
fractured skull.  The cause of death was blunt trauma to the head.
     In defendant's second videotaped statement made to the police
after his arrest, he admitted that he hit Dollinger on the head
with a brick.  Also, in that statement defendant admitted to having
possession of a pole used to beat Dollinger.  Both defendant's
statement and his codefendant's statement describe that it was
defendant's accomplice who cut Boda's throat.  Thus, the evidence
suggests that defendant fatally injured Dollinger while his
accomplice was attacking Boda.  The evidence also indicates that
defendant injured both victims while he was in the house.  A
shoeprint from defendant's shoe was found on Boda's slacks.  At
sentencing, defendant admitted to helping to both beat Dollinger
and stomp Boda.
     Turning to defendant's first issue, the denial of his motion
to suppress, we note that defendant makes several arguments. 
First, defendant argues that reasonable efforts were not made to
contact his parents after he was arrested.  Defendant contends that
given this violation of section 5-6 of the Juvenile Court Act of
1987 (705 ILCS 405/5-6 (West 1996)), his statement must be
suppressed.  
     Under section 5-6(2), a law enforcement officer who takes into
custody a minor who he believes is delinquent "shall ***
immediately make a reasonable attempt to notify the parent or other
person legally responsible for the minor's care ***."  705 ILCS
405/5-6(2).  Although a violation of section 5-6 of the Juvenile
Court Act of 1987 is a factor in determining whether the
defendant's statement should be suppressed, a failure to comply
with this section does not require the exclusion of the minor's
statement.  People v. Denton, 256 Ill. App. 3d 403, 405, 628 N.E.2d 900, 902 (1993); People v. Pace, 225 Ill. App. 3d 415, 429, 587 N.E.2d 1257, 1267 (1992).   
     In this case, the police detectives arrested defendant at his
high school at approximately 1:30 p.m.  The police informed the
high school principal that defendant was coming with them.  The
principal told the detectives that he would notify defendant's
parents.  The principal testified that he did in fact contact
defendant's mother's place of employment, but she was not there. 
He testified that he left a message at her work that he needed her
to return his call about something that was important regarding
defendant.  His call was not returned.
     Officer David Bradford testified that he was one of the
officers who arrested defendant at the high school, transported him
back to the police station, and interviewed him.  Officer Bradford
is an investigating officer as well as a juvenile officer.  He
testified that defendant was given pizza and soda to eat.  He
testified that defendant was repeatedly informed of his rights and
that those rights were explained to him.  Defendant was also
repeatedly asked if he wanted counsel or if he wanted to speak with
his parents.  Bradford testified that defendant adamantly refused
the offer and said that he especially did not want to speak with
his mother.  Bradford testified that during this time, attempts
were being made to contact defendant's parents.  Bradford testified
that he learned that State agent Manis finally contacted
defendant's mother at 7 p.m.  
     State Police Agent Brian Latham testified that he was present
during defendant's questioning, and at no time did defendant ask to
see anyone or to have anyone else present.
     The minor's mother, Karitta Jett, testified that although she
was out of her office during the afternoon, her staff would have
contacted her had there been any messages.  Karitta Jett testified
that her office did not advise her of any messages.  Karitta also
testified that her home answering machine was on, but no message
was left that day.  Karitta testified that she was not contacted by
the police until 7 p.m.  She further testified that upon arriving
at the police station, she requested three or four times to see her
son but was not permitted to see him until around 9 p.m.  
     Defendant testified that the officers never told him that he
could see his mother or father.  Defendant also testified that when
he was told his mother was at the station, he advised the officers
that he did not want to see his mother because he feared she would
become upset.  
     The Juvenile Court Act of 1987 requires the authorities to
make a reasonable attempt to notify a minor's parents immediately
upon his arrest.  705 ILCS 405/5-6 (West 1996).  Officer Bradford
was a juvenile officer who accompanied defendant during his arrest
and interrogation.  Defendant was given food and drink, and he did
not complain that he was hungry or tired during questioning.  The
police took defendant to the station around 1:30 p.m. and claim
that he gave his first statement at around 3:30 p.m.  Karitta Jett
received actual notice of her son's arrest within six hours, and
the testimony of the high school principal and Officer Bradford
indicates that efforts were made to notify her earlier.  Although
Karitta Jett testified that she was not allowed to see her son
immediately upon her arrival at the station, defendant testified
that when told his mother was there, he refused to see her. 
Considering the totality of the circumstances, we cannot find that
the trial court erred in denying defendant's motion to suppress
based on the failure to timely notify his parents.  
     Defendant next argues that the trial court erroneously
considered his alleged criminal history in determining whether or
not to suppress his statement.  In its order denying the motion to
suppress, the trial court stated, "This defendant was on probation
and could be said to have been through the process to some extent
and at least dealt with the police."  Defendant argues that the
court considered his statement to be voluntary because the court
erroneously believed he was on probation and was knowledgeable of
the criminal justice system.  
     Although it is undisputed that defendant was not on probation
at the time of the suppression hearing, he had previously been
arrested on a shoplifting charge and was placed on probation.  He
also had a previous curfew violation.  Although the trial court
refers to defendant as being on probation, it is evident that the
trial court's concern is with the fact that defendant "could be
said to have been through the process to some extent and at least
dealt with the police."  Whether or not defendant was on probation
at the time of the suppression hearing was not the pivotal factor
in considering whether or not defendant's statement was voluntary. 
Rather, the court's concern was whether or not defendant had
previous dealings with the police and was to some extent
knowledgeable about the system.  It is undisputed that defendant
had been arrested for shoplifting and received probation.  Thus, we
cannot find that the trial court's erroneous belief that defendant
was on probation at the time of the hearing resulted in a denial of
due process.  
     Defendant next argues that the trial court erroneously applied
adult standards in considering his motion to suppress his
statement.  Defendant contends that the Juvenile Court Act of 1987
(705 ILCS 405/1-1 et seq. (West 1996)) requires that the trial
court apply heightened scrutiny in favor of minors in considering
a motion to suppress.  Defendant cites the trial court's error in
People v. Simmons, 60 Ill. 2d 173, 326 N.E.2d 383 (1975), as an
example of the trial court's error in this case.  
     In Simmons, a 16-year-old youth was convicted on two counts of
murder, and in denying the defendant's motion to suppress, the
trial court said: 
     "I suppose the basic question we have to answer here is
     whether or not a boy 16 years old *** should be handled
     differently than an adult in his being advised of his rights. 
     It would be my holding[,] first of all, that he shouldn't be
     handled any differently than an adult."  Simmons, 60 Ill. 2d 
     at 181, 326 N.E.2d  at 387.
The supreme court determined that the trial court did not use the
"special care in scrutinizing the record" required in this case of
a 16-year-old borderline-mentally-retarded boy.  The court held
that because the trial court did not use the proper standard in
ascertaining the voluntariness of a statement made by the defendant
to a polygraph operator, defendant's conviction would be vacated
and the case would be remanded for a determination of the
voluntariness of the statement under proper standards.  Simmons, 60 Ill. 2d  at 181, 326 N.E.2d  at 387.  
     Although the supreme court did refer to the need to use
special care in scrutinizing the record, it held that "whether a
statement was voluntarily given must be determined from the
`totality of the circumstances'."  Simmons, 60 Ill. 2d  at 179, 326 N.E.2d  at 386.  The totality of the circumstances includes the age,
intelligence, experience, and physical condition of the defendant
and the length of interrogation, threats, promises, or physical
coercion, as well as the presence of a parent or youth officer. 
People v. Bernasco, 138 Ill. 2d 349, 562 N.E.2d 958 (1990); People
v. Williams, 275 Ill. App. 3d 249, 655 N.E.2d 1071 (1995).  This
court will reverse a trial court's determination that a confession
is voluntary only if that determination is contrary to the manifest
weight of the evidence.  People v. Denton, 256 Ill. App. 3d 403,
406, 628 N.E.2d 900, 902 (1993). 
     Defendant argues that because of his age and limited
intelligence he did not knowingly and voluntarily waive his rights
before he made a statement to the police.  Although it is
undisputed that defendant was 15 years old and attended special
education courses at the time of his arrest, even a teenager with
low scores on intelligence tests can make a voluntary and
admissible confession to a crime.  See In re W.C., 167 Ill. 2d 307,
657 N.E.2d 908 (1995).  Defendant also argues that his response
during the taking of his statement that he was making the statement
because he "didn't wanna [sic] get in any trouble," clearly shows
that he did not comprehend the magnitude of his statement. 
Defendant contends that despite the purported waiver of his Miranda
rights (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)), his constitutional rights were not knowingly
waived.  
     The greatest care must be taken to assure that a juvenile's
incriminating statement was not the product of ignorance of rights
or of adolescent fantasy, fright, or despair.  In re W.C., 167 Ill. 2d 307, 328, 657 N.E.2d 908, 919.  Officer Bradford testified that
he advised defendant of his Miranda rights in the assistant
principal's office at the high school.  Defendant was taken to an
interview room at the mayor's office and was again warned of his
rights.  Officer Bradford testified that defendant read back those
rights to the detectives and signed a written waiver.  Officer
Bradford also testified that defendant was given pizza and soda and
was repeatedly asked if he wanted to speak with counsel or his
parents.  Bradford testified that defendant refused to speak with
his parents, saying that he especially did not want to talk with
his mother.  
     The trial judge was able to view defendant's demeanor during
the taking of his statement, as the statement was videotaped.  The
trial judge found that defendant knowingly, willingly, and clearly
waived his rights.  We have considered the issues raised by the
defendant and have reviewed the record and cannot find that the
trial court's determination was against the manifest weight of the
evidence.  
     The next issue on appeal is whether defendant is entitled to
a new sentencing hearing because the court erroneously considered
the hearsay statement of a nontestifying codefendant in determining
the sentence.  Defendant argues that codefendant Townser's
statement was unreliable hearsay and should not have been admitted
at defendant's sentencing hearing.
     Defendant cites the supreme court cases of People v. Turner,
128 Ill. 2d 540, 539 N.E.2d 1196 (1989), and People v. Rogers, 123 Ill. 2d 487, 528 N.E.2d 667 (1988), for the proposition that
hearsay statements by codefendants are presumptively suspect and
are not admissible at sentencing hearings.  It is true that on the
facts of those cases hearsay statements by codefendants were not
admissible at death penalty hearings.  Turner, 128 Ill. 2d 540, 539 N.E.2d 1196; Rogers, 123 Ill. 2d 487, 528 N.E.2d 667.  But the
supreme court did not hold that all such statements were
inadmissible.
     Rogers held that in the sentencing hearing the confessions of
an accomplice which incriminate the defendant are presumptively
unreliable and should not be admitted into evidence unless
sufficient indicia of reliability exist to overcome the
presumption.  Rogers required a new sentencing hearing when the
jury was allowed to hear the taped confessions of two codefendants. 
The court found that there was a strong presumption of
unreliability given the timing of the confessions, the relationship
of the accomplices, and the highly prejudicial confession that the
defendant initiated the idea for the killing.  Rogers, 123 Ill. 2d 
at 520, 528 N.E.2d  at 683.
     In Turner, 128 Ill. 2d  at 566, 539 N.E.2d  at 1207, the court
reiterated the general rule that hearsay testimony which meets the
relevance and reliability test is admissible at the sentencing
hearing.  However, the court remanded the case for a new sentencing
hearing because the court did not believe that there were
sufficient indicia of reliability to overcome the presumption that
the codefendant's confession was unreliable.  Turner, 128 Ill. 2d 
at 573, 539 N.E.2d  at 1210.  In particular, the court found that
the confession was not sufficiently reliable because the
codefendant's confession minimized his role in the rape and murder
at the expense of the defendant and further did not refer to the
planning of the crime with the defendant.  Turner, 128 Ill. 2d  at
572, 539 N.E.2d  at 1210.  In the case at bar, the trial court
allowed Investigator Bradford to testify at the sentencing hearing
to the hearsay statement of codefendant Townser in which Townser
confessed to his own role in the murder and implicated defendant. 
Investigator Bradford testified that Townser told him that he had
kicked both Irwin Dollinger and Bernice Boda.  Townser admitted
that he was the one who cut Boda's throat.  He also admitted that
he held Dollinger's head while defendant cut Dollinger's throat. 
Townser said that defendant had also kicked both victims and had
hit Dollinger with a brick and a stick.  According to Townser, the
incident began because defendant wanted to take Dollinger's car.  
     The ordinary rules of evidence which govern at trial are
relaxed during the sentencing hearing.  People v. Blanck, 263 Ill.
App. 3d 224, 234, 635 N.E.2d 1356, 1364 (1994).  The only
requirement for admission is that the evidence be reliable and
relevant as determined by the trial court within its sound
discretion.  Blanck, 263 Ill. App. 3d at 234, 635 N.E.2d  at 1364. 
Hearsay evidence is not per se inadmissible; a hearsay objection
affects the weight rather than the admissibility of the evidence. 
People v. Spears, 221 Ill. App. 3d 430, 437, 582 N.E.2d 227, 231
(1991).  Hearsay evidence may be found to be relevant, reliable,
and admissible when it is corroborated by other evidence.  People
v. Hudson, 157 Ill. 2d 401, 450, 626 N.E.2d 161, 182 (1993).  It
has long been held that a sentencing judge will be given wide
latitude in his discretionary determination of the types and
sources of evidence that may be admitted to assist him in
determining the kind and extent of punishment to be imposed within
the statutory limits.  People v. Brumley, 229 Ill. App. 3d 16, 20,
593 N.E.2d 660, 663 (1992).  
     Townser's statement was clearly against his penal interest. 
He admitted to cutting Boda's throat and helping to cut Dollinger's
throat.  In addition, what Townser said about defendant was
corroborated by the physical evidence and by defendant's own
statements and testimony.  One of the shoeprints found on Boda's
pants was consistent with defendant's shoes and inconsistent with
Townser's.  Defendant admitted to hitting Dollinger with a brick
and admitted to handling the stick used to beat Dollinger. 
Dollinger's blood was found on defendant's shoes, and defendant's
fingerprints were found inside Dollinger's car.  Also, defendant
testified at sentencing that he hit Dollinger and stomped on Boda. 
Thus, the physical evidence and defendant's own testimony
corroborated Townser's confession.  We believe there are sufficient
indicia of reliability to overcome the presumption that the
codefendant's confession is unreliable.  Courts may consider at the
sentencing hearing hearsay that is reliable and relevant.   Blanck,
263 Ill. App. 3d at 234, 635 N.E.2d  at 1364.  The trial court found
Townser's statement to Investigator Bradford to be reliable and
relevant to the sentencing of defendant.  The reliability of
Townser's statement is supported by the fact that it was made
against Townser's penal interest.  In addition, the statement is
corroborated by other evidence.  We find, therefore, that the trial
court did not abuse its discretion in considering the hearsay
statement at sentencing.  
     The final issue on appeal is whether defendant's sentence
should be reduced.  Defendant was sentenced to 50 years'
imprisonment for Dollinger's murder, and 25 years' imprisonment for
the attempted first-degree murder of Boda.  Defendant argues that
this sentence is an abuse of discretion because of his youth,
immaturity, lack of education, and lack of a prior record and
because it is disproportionate to the sentence given to his 18-
year-old codefendant.  
     A sentence passed within the available range of penalties is
reviewed on the abuse-of-discretion standard.  People v. Steffens,
131 Ill. App. 3d 141, 151, 475 N.E.2d 606, 615 (1985).  In this
case, the court could have sentenced defendant to a 100-year
extended prison term for committing crimes against victims over 60
years of age.  See 730 ILCS 5/5-8-2, 5-5-3.2(b) (West 1994).  The
court did not do this.  Defendant is eligible for day-for-day good-
time credit; therefore, his time in prison may be reduced to 25
years' imprisonment for the murder of Dollinger and 12« years'
imprisonment for attempted murder.  See 730 ILCS 5/3-6-3(a)(2)
(West 1994).  Thus, he may be released after serving 37« years'
imprisonment.  The court sentenced defendant to terms that are
lower than the maximum authorized by law.
     Defendant also complains that Townser received a lesser
sentence than he did.  Defendant's situation is not comparable to
Townser's because Townser pled guilty.  Generally, there is nothing
wrong with the disparity between the sentences imposed on a
defendant who pleads guilty and a defendant who does not.  People
v. Cooper, 239 Ill. App. 3d 336, 363, 606 N.E.2d 705, 725 (1992). 
Given the record before us, we cannot find that the trial court
abused its discretion in sentencing defendant.  The judgment of the
trial court is affirmed.

     Affirmed.  

     WELCH, P.J., and MAAG, J., concur.