In re Interest of W.J.

                                                  FOURTH DIVISION
                                                  FILED: 9/30/96










No. 1-95-1577

IN THE INTEREST OF W.J., a minor,       )    APPEAL FROM THE
PEOPLE OF THE STATE OF ILLINOIS,        )    CIRCUIT COURT OF
                                        )    COOK COUNTY
                    Plaintiff-Appellant,)    
                                        )
          v.                            )    HONORABLE
                                        )    JOHN ROGERS,
W.J., a minor,                          )    JUDGE PRESIDING.
                                        )
                    Respondent-Appellee.)

     PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:
     The State filed a petition for adjudication of wardship
against the minor respondent, W.J.  A detention hearing was held
pursuant to section 5-10 of the Juvenile Court Act (("Act") 705
ILCS 405/5-10 (West 1994)), after which the trial court found
probable cause to believe that the respondent was a delinquent
minor.  The State then moved to transfer the respondent's case for
prosecution under the criminal laws pursuant to section 5-4(3.3) of
the Act (705 ILCS 405/5-4(3.3) (West 1994)), but the court denied
the transfer motion on the basis that the State failed to make the
required showing of probable cause.  The State now appeals from
this ruling, raising the following issues: (1) whether the court
erred in interpreting section 5-4(3.3)(a) to require a new hearing
and determination of probable cause even though the State had
already established probable cause for purposes of the respondent's
detention proceeding; (2) whether the court erred in concluding,
based upon principles of fundamental fairness, that it could not
consider the transcript of the detention hearing as proof of
probable cause at the transfer proceeding.
     An amended petition (petition) was filed on April 3, 1995,
charging the sixteen-year-old respondent with aggravated battery
and aggravated discharge of a firearm resulting from a double
shooting.  In conjunction with the petition, the State filed a
section 5-4(3.3) motion seeking to transfer the respondent for
prosecution as an adult under the criminal laws.
     Also on April 3, 1995, the matter proceeded to a section 5-10
detention hearing.  705 ILCS 405/5-10 (West 1994).  Section 5-10
hearings must be held within 36 hours after the minor is taken into
custody (705 ILCS 405/5-9 (West 1994)), and encompass the
following: 
    "At the appearance of the minor before the court at the
    detention or shelter care hearing, all witnesses present
    shall be examined before the court in relation to any
    matter connected with the allegations made in the petition. 
    No hearing may be held unless the minor is represented by
    counsel.
     (1) If the court finds that there is not probable
    cause to believe that the minor is a delinquent minor it
    shall release the minor and dismiss the petition.
     (2) If the court finds that there is probable cause to
    believe that the minor is a delinquent minor, the minor,
    his or her parent, guardian, custodian and other persons
    able to give relevant testimony shall be examined before
    the court. *** If the court finds that it is a matter of
    immediate and urgent necessity *** that the minor be
    detained ***, the court may prescribe detention or shelter
    care ***."  (Emphasis added.) 705 ILCS 405/5-10 (West
    1994).  
     At the detention hearing, the State presented evidence tending
to prove the allegations in the petition.  Following arguments, the
court found that the State had established probable cause under
section 5-10.  The court also found an immediate and urgent
necessity to hold the respondent in custody pending his
adjudicatory hearing. 
     On April 18, 1995, a hearing was held on the State's motion to
transfer the respondent for prosecution as an adult.  Section 5-
4(3.3)(a) of the Act provides as follows:
    "If the State's Attorney files a motion *** to permit
    prosecution under the criminal laws and the petition
    alleges the commission by a minor 15 years of age or older
    of*** (ii) aggravated discharge of a firearm***, and, if
    the juvenile judge designated to hear and determine motions
    to transfer *** determines that there is probable cause to
    believe that the allegations in the petition and motion are
    true, there is a rebuttable presumption that the minor is
    not a fit and proper subject to be dealt with under the
    [Act], and that, except as provided in paragraph (b), the
    case should be transferred to the criminal court."
    (Emphasis added.)  705 ILCS 405/5-4(3.3)(a) (West 1994).
     Section 3.3(b) states that the judge shall then enter an order
permitting prosecution under the criminal laws, unless he finds
that the minor would be amenable to care, treatment, and training
programs available through the juvenile court.  This decision is
based upon an evaluation of seven enumerated factors, including the
criminal history and sophistication of the minor, his age, and the
gravity of his alleged offense.  705 ILCS 405/5-4(3.3)(b) (West
1994). 
     In its transfer motion, the State enumerated the charges
against the respondent and noted that the court had entered a
finding of probable cause at the detention hearing.  As its sole
evidence in support of these charges, the State presented a
certified copy of the transcript of the detention hearing.  The
respondent stipulated to the transcript as a true representation of
the detention proceedings, but then moved for a directed finding on
the basis that the State failed to prove probable cause for
purposes of transfer under section 5-4(3.3).  The trial court
denied the transfer motion, concluding that although the State had
demonstrated probable cause for purposes of the detention hearing,
it would be "fundamentally unfair" to consider this proof as
sufficient for purposes of a section 5-4(3.3) transfer motion.
     On appeal, the State first contends that the court erred in
interpreting the Act to require a separate probable cause hearing
for the transfer motion where the court had already found probable
cause at the respondent's detention hearing.  According to the
State, the probable cause requirements under sections 5-4(3.3) and
5-10 are predicated upon the same conduct, and a finding under
section 5-10 should be binding upon the transfer judge and
automatically trigger the rebuttable presumption of transfer under
section 5-4(3.3).  The respondent maintains that section 5-4(3.3)
requires a separate and independent hearing and determination of
probable cause, and that a new hearing is warranted because the
rights at stake in transfer proceedings are far greater than those
in a detention hearing.  
     In construing a statute, the first step is to examine the
plain and ordinary meaning of the statutory language.  People v.
Scharlau, 141 Ill. 2d 180, 193, 565 N.E.2d 1319 (1990).  We
consider this in light of the objective the legislation sought to
accomplish and the evils it aimed to remedy.  Scharlau, 141 Ill. 2d 
at 192, citing City of Springfield v. Board of Election
Commissioners, 105 Ill. 2d 336, 340-41, 473 N.E.2d 1313 (1985). 
The court must construe the statute as a whole and avoid
interpretations that would render any word or paragraph
meaningless.  Collins v. Board of Trustees of the Firemen's Annuity
& Benefit Fund, 155 Ill. 2d 103, 111, 610 N.E.2d 1250 (1993).  We
presume that in enacting a new law, the legislature was aware of
the construction the courts previously placed upon certain terms
and phrases within the statute.  See In re May 1991 Will County
Grand Jury, 152 Ill. 2d 381, 388, 604 N.E.2d 929 (1992).   
     The State's position on this point must be rejected, because
the plain language of the Act mandates that a separate probable
cause hearing be held for motions to transfer.  Section 5-4(3.3)(a)
specifies that the probable cause decision must be made by "the
juvenile judge designated to hear and determine motions to transfer
***."  See also 705 ILCS 405/5-4(3)(a) (West 1994) (requiring
hearing by designated transfer judge in conjunction with
investigation).  Only after this judge finds probable cause does
the rebuttable presumption in favor of transfer apply.
     Additionally, the judge designated to hear the transfer motion
must determine whether "there is probable cause to believe that the
allegations in the petition and motion are true."  705 ILCS 405/5-
4(3.3)(a).  By contrast, a judge in a detention hearing merely
ascertains whether there is probable cause to believe the minor is
a delinquent minor (705 ILCS 405/5-10(1) (West 1994)).  A
"delinquent minor" can be anyone who has violated or attempted to
violate the law before age 17. (705 ILCS 405/5-3(1) (West 1994).) 
We presume that in drafting the Act, the legislature was aware of
this variation in the language of the two sections, and that this
variation was intentional.
     The State's position also contravenes the rule that a judge is
not bound by a prior finding in a case where the finding is purely
interlocutory.  See Balciunas v. Duff, 94 Ill. 2d 176, 446 N.E.2d 242 (1983).  A determination of probable cause under section 5-10
is non-final in nature (see generally In re J.N., 91 Ill. 2d 122,
435 N.E.2d 473 (1982); In re Gomez, 100 Ill. App. 3d 299, 426 N.E.2d 1084 (1981)), and thus it cannot bind the judge in the
subsequent transfer proceeding.  In the absence of express
legislative intent to deviate from this well-established principle,
we must reject the State's contention that the transfer judge
should be bound by a prior probable cause determination.
     On the other hand, where the State has already tendered
relevant, reliable proof of the allegations in the petition during
the detention hearing, we see no reason to require that it repeat
the same process before the transfer judge.  Instead, where the
State elects to offer the transcript of the prior hearing as all or
part of its direct evidence of probable cause in the transfer
hearing, the transfer judge must have discretion to admit the
transcript or to take judicial notice of the prior proceedings. 
Our courts have recognized the critical nature of transfer
proceedings to the minor respondent (see, e.g., People v. Clark,
119 Ill. 2d 1, 11, 518 N.E.2d 138 (1987), citing Kent v. United
States, 383 U.S. 541, 556, 16 L. Ed. 2d 84, 94, 86 S. Ct. 1045,
1055 (1966)), and held that the proceedings must measure up to the
essentials of due process and be conducted with "fundamental
fairness."  In re S.R.H., 96 Ill. 2d 138, 144, 449 N.E.2d 129
(1983), citing In re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967).  However, the salient feature of the transfer hearing
is that, analogous to the preliminary or detention hearing, it does
not result in a determination of guilt or innocence.  People v.
Taylor, 76 Ill. 2d 289, 302, 391 N.E.2d 366 (1979); see also People
v. P.H., 145 Ill. 2d 209, 227-28, 582 N.E.2d 700 (1991); People v.
Cooks, 271 Ill. App. 3d 25, 39, 648 N.E.2d 190 (1995).  As such,
the requisite due process safeguards need not rise to the level
mandated in a criminal or adjudicatory proceeding.  P.H, 145 Ill. 2d  at 227; Taylor, 76 Ill. 2d  at 303; see also Gerstein v. Pugh,
420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975).  Like the
preliminary hearing, transfer proceedings may be based upon hearsay
evidence (In re R.T., 271 Ill. App. 3d 673, 648 N.E.2d 1043 (1995);
Cooks, 271 Ill. App. 3d at 39; see also In re S.I., 234 Ill. App.
3d 707, 600 N.E.2d 889 (1992)), as the accused in a preliminary
proceeding has no right to confront witnesses against him.  See
People v. Blackman, 91 Ill. App. 3d 130, 132, 414 N.E.2d 246
(1980); S.I., 234 Ill. App. 3d 707.  Considering these principles,
the supreme court in Taylor sanctioned the use of "documentary or
testimonial evidence of a reliable nature" as an appropriate method
of proof at transfer hearings and as consistent with the mandate of
fundamental fairness.  Taylor, 76 Ill. 2d  at 305; see also People
v. Stocks, 93 Ill. App. 3d 439, 417 N.E.2d 1080 (1981). 
     The State contends that the trial judge erred in ruling that
fundamental fairness absolutely barred his consideration of the
detention hearing transcript.  As its case in chief at the transfer
proceeding, the State offered a stipulated copy of the transcript
of the detention hearing.  The court summarily rejected the State's
proffered evidence on the basis that it was fundamentally unfair to
consider it as proof of probable cause under section 5-4(3.3).
     We disagree.  In our view, the detention hearing transcript is
"documentary or testimonial evidence" as contemplated in Taylor,
and should be treated as such.  If the transfer judge determines
that the transcript is authentic and comprised of relevant and
reliable evidence, he should admit it into evidence in a transfer
proceeding.  Of course, the weight to be given this evidence is a
matter peculiarly within the province of the trial court.  Further,
the determination of whether or not it constitutes prima facie
proof of probable cause would be a matter of trial court discretion
and not subject to reversal unless the court's determination was an
abuse of discretion.  See Taylor, 76 Ill. 2d  at 300-01.
     At a detention proceeding, the minor respondent must be
represented by counsel (see 705 ILCS 405/5-10 (West 1994)), and is
afforded an opportunity to fully cross examine the State's
witnesses.  At a transfer hearing where the State relies in whole
or part upon the transcript of a detention hearing, the respondent
should be allowed to re-subpoena any State witnesses for further
cross-examination if he deems it necessary (see Stocks, 93 Ill.
App. 3d at 446), and may also present any newly-acquired evidence
disproving the allegations in the petition.  The respondent has the
benefit of the time following the detention hearing to further
confer with counsel and undertake an investigation of the case
against him.  In the event the State sought a transfer hearing on
the same date as the detention hearing, the respondent should be
allowed a continuance for the transfer proceeding to permit time to
prepare his case.  At the same time, there should be nothing
precluding the respondent from waiving his right to present further
evidence beyond that offered at the detention proceeding.
     We are aware of decisions in the first and third divisions of
this district requiring that probable cause for a transfer motion
be proven without resort to transcripts from prior detention
proceedings.  In re R.L., Nos. 1-95-0991, 1-95-1308 and 1-95-1578
(Consolidated)(Ill. App. June 26, 1996); In re J.E., No. 1-95-1271
(Ill. App. July 15, 1996).  The concern of these courts was the
critical nature of the transfer proceedings and the fact that at
detention hearings, held within 36 hours from arrest, respondents
often have not had sufficient time to meaningfully confer with
counsel, investigate the alleged charge, and obtain witnesses to
rebut the State's case.  Thus, they should not be bound by the
evidence presented at these hearings. 
     While we share the concerns expressed in these opinions, we
see no real benefit to requiring the rote repetition of proof
already offered; rather, the minor may be assured a fair transfer
proceeding if he is allowed to recall State witnesses for further
cross-examination where necessary, and to present any new evidence
in his own defense.  "The doctrine of judicial notice of evidence
taken in the same case before the same judge is one of common
sense."  Stocks, 93 Ill. App. 3d at 445-46.  Such practice,
together with the requirement that the court clearly articulate the
reasons for its determination to transfer or not, sufficiently
comports with the requirement of fundamental fairness.
     Based upon the above analysis, the trial court's refusal to
consider the transcript as a matter of law was error.  Accordingly,
we reverse and remand this case for a transfer hearing consistent
with the opinions expressed in this case. 
     Reversed and remanded.
     CAHILL, J., specially concurs.
     THEIS, J., dissents.
1-95-1577    In re W.J.
filed 9/30/96


JUSTICE THEIS, dissenting:

     The issue before us today is not one of first impression, as the
courts in In re R.L., Nos. 1-95-0991, 1-95-1308, 1-95-1578 (3rd Div.,
June 26, 1996) (___ Ill. App. 3d ___, 668 N.E.2d 70), and In re J.E.,
No. 1-95-1271 (1st Div., July 15, 1996) (___ Ill. App. 3d ___, 668
N.E.2d 1052) have interpreted the transfer statute as requiring a
proceeding independent of the detention proceeding.  The majority
embrace this statutory analysis, rejecting the State's argument that a
determination of probable cause in the detention hearing constitutes
probable cause in the transfer hearing, and I concur with this portion
of the majority's opinion.  However, the majority then hold the
detention hearing transcript may be admissible to prove probable cause
in the transfer hearing.  Such a conclusion erodes the concept of
independence envisioned by the statute.  Because this ruling creates a
cumbersome proceeding in the name of the rules of evidence, and because
such a rule fails to comport with notions of fundamental fairness, I
respectfully dissent.
     The United States Supreme Court has stated that due process and
fair treatment are required in juvenile court proceedings.  Kent v.
United States, 383 U.S. 541, 16 L. Ed. 2d 84, 86 S. Ct. 1045 (1966).  In
juvenile proceedings, fundamental fairness is the applicable due process
standard.  McKeiver v. Pennsylvania, 403 U.S. 528, 29 L. Ed. 2d 647, 91 S. Ct. 1976 (1971).
     The Illinois Supreme Court has further stated that, because a
juvenile transfer hearing is not an adjudicatory proceeding, reliable
hearsay evidence may be admissible in a transfer hearing to prove
probable cause.  People v. Taylor, 76 Ill. 2d 289, 391 N.E.2d 366
(1979).  The majority rely upon the holding in Taylor to support their
position that documentary evidence of a reliable nature is admissible
even though it contains hearsay.  However, Taylor recognizes that "[t]o
determine what specific procedural safeguards fundamental fairness
requires in the context of a particular proceeding, one must understand
the nature of the proceeding."  76 Ill. 2d  at 302, 391 N.E.2d  at 372.  

     Under the statute before the court in Taylor (Ill. Rev. Stat. 1975,
ch. 37, par. 702-7(3)), the court was required to consider equally
weighted factors in determining whether the juvenile should be
transferred.  76 Ill. 2d  at 297, 391 N.E.2d  at 370.  Whether the grand
jury might return an indictment was only one factor among several the
court weighed.  The court noted that the admission of a juvenile's
social record containing hearsay was critical, as the judge "`does not
simply deal with a specific factual incident *** but rather *** must
consider the juvenile's past, his future, his mind, and his acts and
then balance these factors ***. "  Taylor, 76 Ill. 2d  at 304-05, 391 N.E.2d  at 373, quoting In re F.R.W., 61 Wis. 2d 193, 210, 212 N.E.2d 130, 139 (1973), quoting Miller v. Quatsoe, 332 F. Supp. 1269, 1275
(E.D. Wis. 1971).  While the Taylor court was concerned with affording
the court a complete view of the juvenile in allowing the documentary
hearsay evidence, the statute before us today proscribes a dramatically
different proceeding.  
     The newly amended statute provides that once the "court determines
that there is probable cause to believe that the allegations in the
petition and motion are true, there is a rebuttable presumption that the
minor is not a fit and proper subject to be dealt with under the
Juvenile Court Act of 1987 ***."  (Emphasis added.)  705 ILCS 405/5-
4(3.3)(a) (West Supp. 1995).  The unusual procedural position of this
hearing shifts the burden of coming forward with evidence upon the
juvenile.  The juvenile must persuade the court that various social
factors militate against denying him the protections afforded by the
Juvenile Court Act. 
     Rebuttable presumptions shift the burden of proof.  Heiner v.
Donnan, 285 U.S. 312, 76 L. Ed. 772, 52 S. Ct. 358 (1932).  By
definition, such presumptions recognize certain facts in the absence of
further evidence, providing a prima facie case which shifts the burden
to go forward with evidence to the defendant.  See Smith v. Tri-R
Vending, 249 Ill. App. 3d 654, 619 N.E.2d 172 (1993).  The United States
Supreme Court has held that courts traditionally examine both statutory
and common law inferences closely for compliance with due process
standards.  See Mullaney v. Wilbur, 421 U.S. 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975). 
     The scheme envisioned by the majority's opinion creates a process
which is fundamentally unfair to the juvenile offender.  The majority
state that under this scheme, the trial court has the discretion to
admit the transcript from the detention proceeding to establish the
State's position in whole or in part.  However, the majority place an
additional burden upon the juvenile not envisioned by the transfer
statute.  That is, the State's offering of the detention hearing
transcript will require the juvenile to come forward with evidence to
prevent the rebuttable presumption of transfer from arising.  The
statute does not contemplate this additional burden, and fundamental
fairness prevents reading the burden into the statute.
     The majority recognize that new issues often will arise after
defense counsel has had an opportunity to prepare for the transfer
hearing.  While the defense may still recall witnesses who have
previously testified at the detention hearing, many questions are raised
by this procedure.  What if the witnesses are not available for further
cross-examination?  Will the court strike the transcript of their
earlier testimony?  Or, will the burden of going forward with evidence
rest squarely on the defense?  Will the scope of this new hearing be
limited by the evidence adduced at the detention hearing?  How will the
court, charged with the explicit duty to determine whether the
allegations are true, determine the critical issue of credibility when
the witnesses will be presented only for cross-examination without
direct?
     Furthermore, the majority's goal of an expeditious proceeding
rarely will be realized because defense counsel, in the absence of a
stipulation, will surely recall witnesses.  With no answers to these
glaring questions, I cannot support the majority's position. 
     The United States Supreme Court has ruled "the waiver of
jurisdiction is a `critically important  action determining vitally
important statutory rights of the juvenile."  Kent v. United States, 383 U.S. 541, 556, 16 L. Ed. 2d 84, 94, 86 S. Ct. 1045, 1055 (1966).  The
court in Taylor noted the desire to afford juvenile courts with great
latitude in rendering its decisions.  76 Ill. 2d 289, 391 N.E.2d 366. 
While great care is taken to prevent juvenile courts from becoming
overburdened by technical rules and procedures, all proceedings must be
constrained by due process.  "[U]nbridled discretion, however
benevolently motivated, is frequently a poor substitute for principle
and procedure."  In re Gault, 387 U.S. 1, 18, 18 L. Ed. 2d 527, 541, 87 S. Ct. 1428, 1439 (1967).  
     The majority, and the courts in In re R.L. and In re J.E., all
agree that the transfer statute and notions of fairness require a
proceeding which is independent of the detention hearing.  The wisest
course is to allow transfer hearings to go forward as truly independent
proceedings, where the State has the burden to come forward with
evidence and call live witnesses to establish its position.  Considering
the serious nature of the transfer proceeding, particularly in light of
the presumption created under the new statute, fundamental fairness
requires nothing less.  Therefore, I dissent.