In re M.
| Decision Date | 10 August 2010 |
| Docket Number | No. 4–08–0435.,4–08–0435. |
| Citation | 941 N.E.2d 903,403 Ill.App.3d 667,347 Ill.Dec. 34 |
| Parties | In re AUSTIN M., a Minor,The People of the State of Illinois, Petitioner–Appellee,v.Austin M., Respondent–Appellant. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Michael J. Pelletier, Gary R. Peterson, and Jacqueline L. Bullard (argued), all of State Appellate Defender's Office, of Springfield, for appellant.
Matthew Fitton, State's Attorney, of Paxton (Patrick Delfino, Robert J. Biderman, and Luke McNeill (argued), all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.Bruce Boyer, of Loyola Civitas Child Law Center, Simmie Baer, of Children & Family Justice Center Bluhm Legal Clinic, both of Chicago, Marsha L. Levick and Riya Saha Shah, both of Juvenile Law Center, of Philadelphia, Pennsylvania, Robin Walker Sterling, of National Juvenile Defender Center, of Washington, DC, and Corene Kendrick, of Youth Law Center, of San Francisco, California, for amici curiae.Presiding Justice MYERSCOUGH delivered the opinion of the court:
[403 Ill.App.3d 668 , 347 Ill.Dec. 36] Following a hearing occurring in January and April 2007, the trial court adjudicated respondent, Austin M., delinquent based on misdemeanor criminal sexual abuse (720 ILCS 5/12–15(b) (West 2006)) and sentenced him to 24 months' probation. In February 2008, respondent filed a motion for a new trial, which the court denied in May 2008.
Respondent appeals, arguing (1) he was deprived of effective assistance of counsel when his attorney (a) labored under per se and actual conflicts of interest, (b) failed to challenge hearsay statements at trial, (c) failed to cross-examine three primary witnesses, and (d) failed to file a motion to suppress respondent's statement to police; (2) he was deprived of his right to counsel when his attorney served as both guardian ad litem and defense counsel; and (3) the State failed to prove him guilty beyond a reasonable doubt. We disagree and affirm.
I. BACKGROUND
In July 2005, respondent (born September 6, 1989) lived with his parents (the Ms); two older sisters, Ab.M., and J.M.; two older brothers, C.M. and An.M.; and one younger brother, R.M. (born October 1, 1990). An.M. was the Ms' biological child, and the other children were adopted when they were very young and are not biologically related to each other.
The following year, respondent's parents took in three male foster children, J.L. (born December 10, 1993); D.L. (born May 24, 1996); and W.C. (born September 16, 2000). In July 2006, Sheree Foley, a Department of Child and Family Services (DCFS) investigator, received a hot-line tip that respondent and R.M. engaged in “inappropriate sexual behavior” with D.L. Foley informed the police, and the State later charged both respondent and R.M. with misdemeanor criminal sexual abuse (720 ILCS 5/12–15(b) (West 2006)) based on “numerous occasions” occurring between July 14, 2005, and July 14, 2006, and involving sexual penetration and additional sexual conduct with D.L., J.L., and each other. A. Pretrial Proceedings
Respondent and R.M.'s parents hired attorney Anthony Novak to represent both children. In September 2006, the trial court held a pretrial hearing, at which it informed the boys' parents as follows:
The parents indicated they had no questions regarding the proceedings.
B. Respondent and R.M.'s Adjudicatory Hearing
In January and April 2007, the trial court conducted a joint adjudicatory hearing as to respondent and R.M. Prior to the start of the hearing, attorney Novak noted as follows:
“We have three witnesses that are children, [W.C., J.L., and D.L.], and I have agreed with [the State's Attorney] that I am going to not oppose their testimony being presented by way of [videotape.] Judge, a couple of [videotapes were] made in July, and one [was] made in October.
* * * I want to make it clear; my clients have consistently denied the allegations that are being made by these complaints * * *.
Nevertheless, this is a juvenile hearing. I have talked this over pretty carefully with my clients, as well as with their parents, and I have been a lawyer for nearly 30 years, and I am comfortable with this in this case because [‘]we want to know the truth[’] is ultimately the view of the parents. If something along the nature of these allegations, which are acts of sexual penetration involving children * * *. And I think our[ ] * * * attitude is we have grave doubts these things occurred.
The boys deny [this] occurred, but I think the parents and I agree with—I think with [the State's Attorney] as well that if such acts happened, then it needs to stop. An intervention is not appropriate by way of government to help these boys if such things happened. * * * I have a duty to these boys, nobody else. * * * [W]e are seeking the truth[,] * * * the same as the [c]ourt and the same as the prosecutor * * *. And I am comfortable with proceeding by way of the [videotape] as opposed to requiring these young children to come into [c]ourt at this hearing * * *. We are giving up our right to confront these witnesses in [c]ourt.
* * *
And on the other hand, [the State's Attorney] is giving up the ability to have live testimony[,] which tends to be more persuasive than [videotape].”
Attorney Novak further explained his representation of both clients, stating as follows:
“[O]rdinarily, if this were an adult case * * *[,] it is extremely rare I would contest a hearing attempting to represent two individual clients that deserve the benefit of individual representation, separate consideration, and the allegations are kind of—they are pretty widespread.
We are talking about a year's period of time and * * * different possible alleged acts of different kinds. Nevertheless, I think [at] a juvenile hearing where it is a misdemeanor allegation, where it is a [j]udge proceeding as opposed to a [j]ury proceeding, I am fully capable of handling this, and * * * I don't view such a proceeding as adversarial as it might be if it were an adult proceeding.”
Thereafter, the court informed the boys and their parents of the following:
“[T]here are several things now that you are basically agreeing that there will not be any objection to or complaint about or any issue raised at a later date. In effect, you are waiving any claim of error or objection in three different areas now. * * * [Y]ou will not be able to complain about the timeliness of this hearing because you have on a couple of occasions waived or given up the right to claim that it wasn't timely held. * * *
Second, you are now given the right to cross-examine or ask questions of these three witnesses who appear by [videotape]. * * * [Y]ou have an absolute right to confront and cross-examine or ask questions of all the witnesses. * * *
And third, you are giving up the right to make any objections about the fact that Mr. Novak is representing both of the [m]inor [r]espondents that somehow this was a conflict or that he didn't adequately represent both of them or one person was better represented than the other or that the defense of one is that the other did it * * *.”
The court asked the parents, respondent, and R.M. if they understood “those three areas,” and all responded individually in the affirmative. When asked by the court if attorney Novak discussed the above with respondent and his brother, Novak stated, “I am not sure I explained about the interest between the two.” The court then explained the concept of conflict of interest to respondent and R.M., after which both indicated they understood. Novak also told the court that in exchange for permitting admission of the videotaped interviews, the State's Attorney agreed to pursue probation with sexual-abuse treatment rather than commitment to the Department of Juvenile Justice. The court asked the boys' parents if they understood the compromise but did not ask if respondent or R.M. also understood.
The trial court then began the hearing, wherein the parties presented the following evidence.
1. The State's Evidence
a. Testimony of Sergeant Yates
Sergeant Robert Yates testified he worked as a sergeant with the Paxton police department. In July 2006, he received information from DCFS investigator Foley pertaining to a possible criminal sexual assault of D.L. According to the DCFS report, two of the foster parents' children—respondent, then age 16, and R.M., then age 15—were the alleged perpetrators. When DCFS received the report, D.L. no longer lived with the Ms, but two younger foster children, W.C. and J.L., continued to live at the Ms' home.
Sergeant Yates and Foley brought W.C. and J.L. to the Paxton police station for questioning. Although Sergeant Yates did not remain in the room with the children during the questioning, Foley later provided him with information she obtained during the interviews.
Following W.C.'s and J.L.'s interviews, Sergeant Yates phoned the Ms, and they agreed to bring respondent and R.M. to the station for questioning. First, Sergeant Yates questioned R.M. in front of R.M.'s father, Foley, and the Paxton police chief. R.M. appeared “extremely nervous,” avoided eye contact, and repeatedly denied touching anyone inappropriately.
Next, Sergeant Yates interviewed respondent. Sergeant Yates testified that Foley, the police chief, and respondent's father remained in the interrogation room. Initially, respondent denied partaking in any inappropriate touching. Sergeant Yates and others present during the interview told respondent several times they “had received information otherwise.” “[A]t some point,” respondent told police that he observed J.L. having sexual contact with the family dog. Respondent then admitted allowing D.L. to ...
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