People v. Martin

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.