In re Austin M. ( 2010 )

NO. 4-08-0435 Filed 8/10/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: AUSTIN M., a Minor, ) Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
Petitioner-Appellee, ) Ford County
v. ) No. 06JD17
AUSTIN M., )
Respondent-Appellant. ) Honorable
) Stephen R. Pacey,
) Judge Presiding.
_________________________________________________________________
PRESIDING JUSTICE MYERSCOUGH delivered the opinion of
the court:
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
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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:
"Mr. Novak is entering an appearance for your
sons only. So, he represents them and does
not represent you. He represents what's in
the best interest of these [m]inors, which
may or may not be what the [m]inors or the
parents think is in their best interests."
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
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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
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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
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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
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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
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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.
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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, respon-
dent 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 "suck his dick" after D.L. asked if he could
"do things to him." After respondent made this statement,
respondent's father ended the interview and told police he
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wanted an attorney.
Following respondent's interview, Sergeant Yates
accompanied Foley to the Child Advocacy Center (CAC) in Urbana,
where Foley interviewed D.L. and W.C. Although present at CAC,
Sergeant Yates was not involved with any questioning. Prior to
the hearing, he reviewed the videotapes and audiotapes of both
D.L.'s and W.C.'s interviews as well as a later interview with
J.L. in October 2006, at which Sergeant Yates was not present.
The State admitted the tapes into evidence as exhibit Nos. 1, 2,
and 3.
b. Testimony of Investigator Foley
Next, the State offered testimony from DCFS investiga-
tor Sheree Foley. Foley testified she "had extensive training"
and experience as a forensic interviewer for sexual abuse. In
July 2006, Foley received a hot-line report that respondent and
R.M. sexually abused D.L. At the time of the allegation, D.L.
lived with his grandmother, but his removal from the Ms' home
was not connected to any allegations of sexual abuse. Upon
receiving the hot-line report, Foley contacted the Paxton police
department. She and the police agreed to bring the two foster
children remaining in the Ms' home, J.L. and W.C., in for ques-
tioning.
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Foley picked the boys up and interviewed them at the
police station. Once Foley "had information from the boys that
sexual abuse *** did occur in the home," police brought in
respondent and R.M. for questioning. Foley sat in on respon-
dent's and R.M.'s interviews but did not question either. Foley
observed R.M. was "scared and nervous" and maintained he did not
partake in any inappropriate sexual conduct. During respon-
dent's interview, respondent told police he allowed D.L. to
"suck his dick." Respondent's father then cut off D.L. and
terminated the interview.
Following respondent's statements, Foley made arrange-
ments to remove W.C. and J.L. from foster placement with the Ms
and conduct further interviews with the boys at CAC. Foley
interviewed W.C. in July 2006. Foley waited until October 2006
to conduct an in-depth interview with J.L. because "he was very
closed [off] and wasn't going to talk [in July 2006]."
Foley learned through another DCFS caseworker that
D.L. had a history of inappropriate sexual behavior toward his
cousins and had been sexually abused himself prior to living
with the Ms. She also discovered through her interview with
J.L. at CAC that he too had a history of being sexually abused.
On cross-examination, Foley attested that prior to the
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July 2006 hot-line tip, two unfounded reports of abuse were made
on D.L.'s behalf.
c. Videotaped Interview of D.L.
On July 15, 2006, Foley conducted a videotaped inter-
view with D.L. at CAC, which was admitted into evidence as
People's exhibit No. 1. During his interview, D.L. told Foley
that he saw respondent and R.M. "humping" or "having sex" with
their sisters, J.M. and Ab.M., in their bedrooms.
D.L. also stated that respondent and R.M. frequently
babysat the younger children. While babysitting, both boys
frequently came into D.L.'s room, undressed, and threatened to
"kill" D.L. if he did not "suck their dicks." D.L. initially
refused but eventually agreed to do so. This happened multiple
times. D.L. stated he would suck until "white stuff" came out
and afterward he would spit it out. Previously, when D.L. was
younger, he saw his biological mother do the same to his uncle.
D.L. also told Foley respondent and R.M. forced J.L.
to perform oral sex on them and W.C. to "jack off" in front of
them. This occurred in D.L., J.L., and W.C.'s shared bedroom,
in respondent and R.M.'s shared bedroom, and in the family van.
Initially, D.L. stated he saw J.L. perform oral sex "just once"
but later said it happened frequently.
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According to D.L., his foster parents and one of his
foster sisters hit him repeatedly, and on several occasions,
R.M. "stuck his dick in [D.L.'s] butt," which hurt D.L. Occa-
sionally, R.M. and respondent wore condoms, and on one occasion,
R.M. forced D.L. to put a condom on him.
D.L. never told his foster parents of R.M.'s and
respondent's behavior because they "didn't care."
d. Videotaped Interview of W.C.
Foley also interviewed W.C. at CAC on July 15, 2006.
The State admitted the video of the interview as exhibit No. 3.
The video reveals W.C. initially said nothing about
sexual abuse occurring within the Ms' home but further question-
ing revealed that W.C. told Foley he observed respondent touch
J.L.'s and R.M.'s "pee pees." W.C. elaborated that respondent
touched R.M. "for a long time," moving his hand "up and down."
In doing so, respondent made R.M. "pee," which W.C. said was
"yellow and white" in color. Although this occurred in another
room, W.C. could see it from his bedroom.
W.C. further stated respondent touched J.L.'s penis
while lying naked atop J.L.'s bed. On a separate occasion, J.L.
and respondent took their pants off to allow the family dog to
"lick their boot[ies]."
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Finally, W.C. discussed C.M., the Ms' adult son. W.C.
alleged that C.M. took his pants down in front of W.C. to show
J.M. "the hair on his pee pee." W.C. also stated C.M. licked
W.C.'s penis.
e. Videotaped Interview of J.L.
On October 27, 2006, Foley interviewed J.L. at CAC,
the video of which was admitted as People's exhibit No. 2. J.L.
told Foley D.L. would use the family dog for sexual purposes,
taking the dog upstairs to a private room and allowing the dog
to lick him. J.L. told Foley he "didn't remember" anything
suspect occurring between respondent and D.L. However, after
additional questioning from Foley, J.L. recalled walking in on
D.L. "suck[ing] on [respondent's] penis." This happened "more
than one time."
J.L. initially stated that he never saw anyone else
acting inappropriately but after further questioning admitted he
saw respondent attempt to touch J.M.'s vagina over her clothing
and that J.M. would "smack" respondent away. J.L. also admitted
R.M. and respondent would ask him to "suck on [their] dick[s]"
but J.L. "always refused." Respondent frequently tried to grab
J.L.'s penis and threatened to "cut it off" with his
pocketknife. At one point, J.L. saw D.L. "suck on [R.M.'s]
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dick" while respondent recorded them on a video camera. He also
saw R.M. stick his penis "up [D.L.]'s butt" while in J.L.'s
bedroom. Respondent tried to do the same to J.L., but J.L.
"wouldn't let him." This sort of behavior happened "every day."
No one ever told the foster parents what was happening
in the home. J.L. opined that the children remained silent
about the inappropriate sexual behavior because the Ms did
nothing when the children told on each other for hitting. He
also stated the Ms told the children they would "beat them" if
"they told."
2. Respondent and R.M.'s Evidence
After playing the three videotaped interviews, the
State rested. Novak made a motion for a directed finding, which
the trial court denied, and presented the following evidence.
a. Testimony of An.M.
An.M. is the 22-year-old biological son of the Ms and
the brother of respondent and R.M. At the time of the incidents
in question, An.M. lived at home with the Ms. An.M.'s bedroom
was on the second floor, next to the stairwell leading up to the
bedroom in the attic shared by respondent and R.M. The foster
children's bedroom was on the second floor. Although the Ms did
not allow the younger children to go upstairs to the attic, the
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children occasionally did so to play pool or watch television.
When this happened, An.M. would go up and tell them to return
downstairs.
On cross-examination, An.M. stated he spent most
weekdays away from home at the University of Illinois, where he
was a student. "[A]bout one evening a week," he would stay at
school until around 8 p.m., but usually he arrived home around 4
p.m. When he was at school, An.M. admitted he did not know what
went on at home. He further stated although his parents made a
rule that no one could go into someone else's room without
asking first, the rooms were not locked. An.M. rejected the
State's suggestions that R.M. and respondent associated fre-
quently with D.L., J.L., and W.C.
b. Testimony of Ab.M.
Ab.M. is the Ms' 19-year-old adopted daughter and
sister of respondent and R.M. She lived at the Ms' home until
January 2006, moved out, and then returned in May 2006.
Ab.M. denied having any sexual contact with respondent
and R.M. However, one morning, she awoke to D.L. standing over
her bed, watching her. On several occasions, she caught D.L.
and J.L. in the bathroom together naked.
During cross-examination, Ab.M. denied that her sis-
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ter, J.M., had a sexual relationship with respondent. She
stated W.C. previously lied on "several accounts" but could not
pinpoint exactly when. She also admitted she did not want
respondent and R.M. to get in trouble.
c. Testimony of Mrs. M.
Mrs. M. testified that she has three biological
children--An.M., N.M., and S.M.--all of whom were adults, and
five adopted children--C.M., Ab.M., J.M., R.M., and respondent.
For 19 years, she acted as a foster mother for countless chil-
dren.
Mrs. M. was concerned about the allegations against
respondent and R.M. and wanted to know the truth, not involve
herself in any coverup. After learning of the allegations, Mrs.
M. spoke with respondent and R.M. "many, many times," even
trying to "trick" the boys into saying "something," but both
"always stuck to [saying] this has never happened."
Mrs. M. denied leaving D.L., J.L., and W.C. under
respondent's or R.M.'s supervision. She also denied that re-
spondent and R.M. had pocketknives, reasoning that knives were
banned in the house and had either boy carried a knife, she
would have found it in their pockets while doing laundry.
Mrs. M. further testified she never saw any indication
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of sexual activity involving R.M., respondent, and the other
children but expressed concern about activity between D.L. and
J.L. D.L. had a history of being molested prior to coming to
live with the Ms. After a counseling session, Mrs. M. arrived
to pick up D.L. and found him naked in the parking lot. Mrs. M.
later found D.L. and J.L. in bed together. Although the boys
claimed "nothing was going on," Mrs. M. had D.L. sleep in a
separate room that night under her supervision. Mrs. M. also
corroborated Ab.M.'s testimony that D.L. appeared naked in her
bedroom shortly after arriving to live with the Ms.
After learning of the allegations against respondent
and R.M., Mrs. M. watched the videotapes of Foley's interviews
with J.L., D.L., and W.C. and then checked her home for evidence
of sexual misconduct. Mrs. M. refuted J.L.'s allegation that he
watched respondent videotaping R.M. having oral sex with D.L. by
checking the family's digital video camera and discovering no
recordings of any sexual activity. She further refuted D.L.'s
claims that R.M. forced him to perform oral sex in the family
van, noting that she never left the children alone in the van
because she worried about the boys fighting. She denied D.L.'s
claims that she ever hit him and stated none of the children
ever told her of the alleged sexual abuse occurring within her
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home. Had she received any reports from her children of sexual
activity, she would have reacted "strong[ly]."
On cross-examination, Mrs. M. testified that the boys
were supervised 24 hours a day. She banned all of the children
from going into each other's rooms and strictly enforced this
rule. Although Mrs. M. initially denied any report of sexual
abuse prior to the allegations in the instant case, she later
admitted that when respondent was six, he was accused of sexu-
ally abusing a neighbor child and received a sexual evaluation
in connection with the accusation. Over Novak's hearsay and
relevancy objections, Mrs. M. also acknowledged hearing some
allegations about respondent acting sexually inappropriate with
J.M. and another allegation involving respondent's classmate.
d. Testimony of Mr. M.
Mr. M. testified he was present for respondent's and
R.M.'s July 2006 interviews at the Paxton police station. Mr.
M. described the interview as follows:
"We went into the interview room. *** [Re-
spondent] was asked and then I was asked to
sign a form that was basically his Miranda
rights. Then [the police] started to ask him
about knowing [of] any inappropriate sexual
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behavior that went on in our house, and he
said he didn't know. They asked him that
question several times, and he responded
negatively. *** [One officer] was sitting
across from [respondent.] He asked him if
[D.L.] ever performed oral sex *** on him.
[Respondent] did not respond. Then [the
police captain] who was standing in the cor-
ner of the room yelled at him, [']did [D.L.]
perform oral sex on you[?'] and he still
didn't respond, and at that point I thought
that was abusive, and I asked that the inter-
view end. [The police captain] kept talking,
so I could see that the interview was not
ending. At that point, *** I stated that we
needed a lawyer, and then the interview
ended."
Mr. M. further denied hearing respondent say he had oral sex
with D.L. Mr. M. stated R.M.'s interview was similar in tenor,
with the police captain "ridicul[ing]" R.M. and "basically
call[ing] him a liar." According to Mr. M., both boys never
made any statements involving inappropriate conduct with the
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family dog.
Mr. M. also corroborated Mrs. M.'s testimony about the
lack of pocketknives in the home, the fact the boys were never
alone in the Ms' van, and that none of the children were left
home alone under respondent's or R.M.'s supervision.
At the close of evidence, the trial court took the
matter under advisement.
C. The Trial Court's Ruling
In August 2007, the trial court issued a written
ruling in which it denied the State's delinquency petition as to
correspondent R.M. but found respondent guilty of criminal
sexual abuse (720 ILCS 5/12-15(b) (West 2006)) and adjudicated
him delinquent. The court explained the five-month delay in its
decision by noting it "ha[d] both procrastinated and struggled
evaluating the credibility of witnesses *** and reaching a final
decision. [The court] ha[d] reviewed its trial notes and the
[videotaped interviews] multiple times."
In support of its ruling, the trial court made the
following findings: (1) Sergeant Yates's and Investigator
Foley's testimony about why the minors' nervousness was normal
in the context of police questioning and not indicative of
guilt; (2) the Ms' household rule prohibiting the children from
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going into each other's rooms was not unusual; (3) W.C.'s video-
taped testimony lacked credibility because (a) Foley prompted
his answers, (b) his responses were inconsistent regarding the
locations of the incidents he described and whether he witnessed
the incidents personally, (c) he accused C.M. of sexual miscon-
duct, although none of the other children mentioned C.M. as
engaging in such conduct, and (d) he misstated who lived at the
Ms' during the time period in question; (4) J.L.'s videotaped
testimony was "only slightly more credible" because (a) he
"related only sexual misconduct by the *** other two foster
children witnesses," (b) the audio of his interview was of poor
quality, and (c) he only admitted sexual misconduct after
prompting and suggestions from Foley; and (5) D.L.'s videotaped
testimony "was also suspect" in that he claimed (a) respondent
and R.M. had group sex with their sisters, (b) he performed oral
sex on respondent and R.M. "all the time" in their attic bedroom
and D.L.'s own bedroom after they threatened to kill D.L., (c)
he had anal sex with R.M., and (d) Mrs. M. occasionally hit him
"everywhere." The court concluded "this is the classic case
where the State has introduced evidence sufficient to prove that
something probably happened[] but[,] absent an admission, not
proof beyond a reasonable doubt." With respect to respondent,
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the court noted "this is also[] *** a case in which [respon-
dent's] admission has been proved beyond a reasonable doubt and,
together with the State's other evidence, is sufficient to meet
the State's burden."
D. Respondent's Motion for a New Trial
In February 2008, respondent replaced Novak with
Harvey Welch as defense counsel and filed a motion for a new
trial arguing (1) the State failed to prove respondent guilty
beyond a reasonable doubt and (2) respondent received ineffec-
tive assistance of counsel because Novak (a) failed to file a
motion to suppress respondent's July 2006 admission to police
and (b) waived respondent's right to confront witnesses against
him by agreeing to admit videotapes of the alleged victims'
testimony into evidence. After a May 2008 hearing, the trial
court denied respondent's motion and later sentenced respondent
to 24 months' probation.
This appeal followed.
In November 2009, we allowed the Juvenile Law Center,
the Loyola Civitas Law Center, the Children and Family Justice
Center, the Youth Law Center, and the National Juvenile Defender
Center to file a brief as amici curiae on respondent's behalf.
II. ANALYSIS
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On appeal, respondent contends (1) he received inef-
fective assistance of counsel when his attorney (a) labored
under a per se conflict of interest by representing respondent
and his correspondent brother, both of whom were alleged victims
of each other; (b) labored under an actual conflict of interest
based on his relationship with respondent's parents, (c) failed
to challenge hearsay statements at trial, (d) failed to cross-
examine three primary witnesses, and (e) failed to file a motion
to suppress respondent's statement to police; (2) he was de-
prived of right to counsel as guaranteed by section 1-5(1) of
the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-5(1) (West
2006)) and the due-process clauses of the United States and
Illinois Constitutions when his attorney served as both his
guardian ad litem and his defense attorney; and (3) the State
failed to prove him guilty beyond a reasonable doubt. We dis-
agree.
A. Ineffective Assistance of Counsel
Respondent contends he received ineffective assistance
of counsel when Novak (1) labored under a per se conflict of
interest by representing respondent and his correspondent
brother, both of whom were alleged victims of each other; (2)
labored under an actual conflict of interest based on his rela-
- 24 -
tionship with respondent's parents; (3) failed to challenge
hearsay statements at trial; (4) failed to cross-examine three
primary witnesses; and (5) failed to file a motion to suppress
respondent's statement to police.
1. Victim-Based Per Se Conflict of Interest
Respondent contends Novak improperly labored under a
per se conflict of interest by representing both respondent and
R.M. because both were alleged victims of the other.
Whether an attorney labored under a per se conflict of
interest is a question of law, which we review de novo. People
v. Morales, 209 Ill. 2d 340, 345, 808 N.E.2d 510, 512-13 (2004).
A per se conflict of interest arises "[w]hen a defendant's
attorney has a tie to a person or entity that would benefit from
an unfavorable verdict for the defendant," such as the victim of
the defendant's alleged crime. People v. Hernandez, 231 Ill. 2d
134, 142, 146, 896 N.E.2d 297, 303, 305 (2008). Under such
circumstances, reversal is automatic unless the record reflects
the accused was aware of the conflict and knowingly waived the
right to conflict-free counsel. Hernandez, 231 Ill. 2d at 143,
896 N.E.2d at 303.
A strong showing of an intentional and knowing waiver
of a conflict-of-interests issue is required before a reviewing
- 25 -
court can deem the issue waived. People v. Arreguin, 92 Ill.
App. 3d 899, 901, 416 N.E.2d 402, 403 (1981). A reviewing court
will not disregard an intentional and knowing waiver unless "an
error affecting substantial rights was committed." People v.
Precup, 73 Ill. 2d 7, 17, 382 N.E.2d 227, 231 (1978).
The State contends respondent expressly waived this
issue at the onset of the adjudicatory proceedings when he
stated he understood the trial court's admonition that "the
conflict[-]of[-]interest idea is that Mr. Novak is not in a
position to represent both of you because one of you may be
guilty and one of you may not be guilty, and he should be repre-
senting only one." Respondent counters that his waiver applied
only to his and R.M.'s roles as corespondents, not covictims.
We agree with the State.
The underlying incidents upon which the State based
its sexual-abuse charges against respondent and R.M. include
allegations that respondent and R.M. engaged in sexual miscon-
duct with each other. However, respondent and R.M. did not
allege either abused the other. Rather, they maintained identi-
cal defenses--namely, that D.L., J.L., and W.C. fabricated the
allegations against them. Because neither respondent nor R.M.
implicated the other as part of their defenses against the
- 26 -
sexual-abuse allegations, Novak's representation of both did not
constitute a conflict. In other words, in representing R.M. and
respondent simultaneously, Novak did not possess any tie to a
person or entity that would benefit from an unfavorable verdict
for respondent because neither respondent nor R.M. alleged his
innocence based on the other's guilt. See Hernandez, 231 Ill.
2d at 142, 896 N.E.2d at 303.
2. Remaining Ineffective-Assistance-of-Counsel Claims
Respondent argues he was further denied effective
assistance of counsel when defense counsel (1) labored under an
actual conflict of interest based on his relationship with
respondent's parents, (2) failed to challenge hearsay statements
at trial, (3) failed to cross-examine three primary witnesses,
and (4) failed to file a motion to suppress respondent's state-
ment to police. We disagree.
To demonstrate ineffective assistance of counsel, a
criminal defendant must show (1) counsel's performance "fell
below an objective standard of reasonableness" and (2) the
deficient performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S.
Ct. 2052, 2064 (1984). This standard also applies to an attor-
ney's performance in juvenile delinquency proceedings. See In
- 27 -
re Dante W., 383 Ill. App. 3d 401, 411, 890 N.E.2d 1030, 1038
(2008).
a. Actual Conflict of Interest
Respondent argues Novak labored under an actual con-
flict of interest based on his relationship with respondent's
parents. Specifically, respondent alleges an actual conflict
existed between Novak's joint representation of respondent's
parents and respondent because (1) Mr. and Mrs. M. were also the
parents of R.M., one of respondent's alleged victims, and (2)
"counsel indicated that [respondent's] parents were directing
counsel's representation in a way which was contrary to [respon-
dent]'s objectives." We disagree.
We find Novak's representation of respondent did not
amount to error because Novak did not represent respondent's
parents in this proceeding. Prior to respondent's adjudicatory
hearing, Novak and the trial court had the following exchange:
"THE COURT: Mr. Novak, you are appearing
for *** each of the [m]inors and the parents;
correct?"
MR. NOVAK: I think the [m]inors, Judge."
The court then apprised Mr. and Mrs. M. as follows:
"At this point, Mr. Novak is entering an
- 28 -
appearance for your sons only. So, he repre-
sents them and does not represent you. He
represents what's in the best interests of
these [m]inors, which may or may not be what
the [m]inors or the parents think is in their
best interest."
Respondent argues that despite the trial court's
admonition that Novak did not represent Mr. and Mrs. M., Novak's
statement that he was "seeking the truth *** as same as the
court and as the same as the prosecutor" implied he represented
the Ms because both testified they wanted to know the truth as
to whether sexual abuse occurred in their home. However, this
does not suggest Novak rendered assistance to respondent's
parents that conflicted with his representation of respondent.
As stated above, attorneys in juvenile proceedings have a duty
to "'not only protect the juvenile's legal rights but *** must
also recognize and recommend a disposition in the juvenile's
best interest ***.' [Citation.]" In re J.D., 351 Ill. App. 3d
917, 920, 815 N.E.2d 13, 16 (2004).
None of the statements cited by respondent suggest
Novak ignored his duty to respondent in favor of seeking the
truth on behalf of respondent's parents. At the onset of the
- 29 -
proceedings, Novak noted, "I want to make it clear; my clients
have consistently denied the allegations that are being made by
these complaints." Novak advocated for respondent by objecting
to the State's questioning of witnesses; cross-examining the
witnesses that appeared in court on the State's behalf; and
presenting testimony from Mr. M., Mrs. M., An.M., and Ab.M. on
respondent's behalf. As such, we find Novak acted in respon-
dent's interests and thus respondent did not receive ineffective
assistance of counsel.
b. Videotaped Statements of D.L., J.L., and W.C.
Respondent further argues he received ineffective
assistance of counsel when Novak failed to challenge the admis-
sibility of D.L.'s, J.L.'s, and W.C.'s videotaped statements.
According to respondent, allowing such statements into evidence
permitted the admission of hearsay evidence and denied respon-
dent his right to cross-examination.
We find respondent waived this argument. Prior to his
adjudicatory hearing, the following exchange occurred.
"THE COURT: *** [Y]ou are now given the
right to cross-examine or ask questions of
these three witnesses who appear by [video-
tape]. *** [Y]ou have an absolute right to
- 30 -
confront and cross-examine or ask questions
of all the witnesses. ***
* * *
[Respondent], do you understand ***?
[RESPONDENT]: Yes, sir, Your Honor."
Moreover, this matter amounts to one of trial strat-
egy. "[D]ecisions regarding 'what matters to object to and when
to object' are matters of trial strategy," to which a reviewing
court affords great deference. People v. Perry, 224 Ill. 2d
312, 344, 864 N.E.2d 196, 216 (2007), quoting People v.
Pecoraro, 175 Ill. 2d 294, 327, 677 N.E.2d 875, 891 (1997).
Here, Novak stated that in exchange for his inability to cross-
examine the witnesses, the State was "giving up the ability to
have live testimony[,] which tends to be more persuasive than
[videotape]." Accordingly, we find Novak did not render inef-
fective assistance of counsel by not objecting to the introduc-
tion of D.L.'s, J.L.'s, and W.C.'s videotaped testimony.
c. Respondent's Admission
Finally, respondent asserts he received ineffective
assistance of counsel when Novak "failed to file a motion to
suppress [respondent's] involuntary statement to police." We
disagree.
- 31 -
"We review the trial court's ruling on a motion to
suppress under a bifurcated standard." In re Marvin M., 383
Ill. App. 3d 693, 704, 890 N.E.2d 984, 993 (2008). A reviewing
court affords great deference to the trial court's findings of
fact, which will be disturbed on appeal only if they are against
the manifest weight of the evidence. Marvin M., 383 Ill. App.
3d at 704, 890 N.E.2d at 994. However, we review de novo the
trial court's ruling on whether a respondent's statements were
voluntarily made. Marvin M., 383 Ill. App. 3d at 704, 890
N.E.2d at 994.
In determining whether a confession was voluntary, a
reviewing court considers the totality of the circumstances. In
re G.O., 191 Ill. 2d 37, 54, 727 N.E.2d 1003, 1012 (2000).
"Factors to consider include the respondent's age, intelligence,
background, experience, mental capacity, education, and physical
condition at the time of questioning; the legality and duration
of the detention; the duration of the questioning; and any
physical or mental abuse by police, including the existence of
threats or promises." G.O., 191 Ill. 2d at 54, 727 N.E.2d at
1012. No single factor controls. G.O., 191 Ill. 2d at 54, 727
N.E.2d at 1012. "The test of voluntariness is whether the
respondent 'made the statement freely, voluntarily, and without
- 32 -
compulsion or inducement of any sort, or whether the [respon-
dent's] will was overcome at the time he or she confessed.'"
G.O., 191 Ill. 2d at 54, 727 N.E.2d at 1012, quoting People v.
Gilliam, 172 Ill. 2d 484, 500, 670 N.E.2d 606, 613 (1996).
The Supreme Court of Illinois has upheld a 13-year-old
juvenile's confession as voluntary, even when police denied the
juvenile the opportunity to confer with a parent or other con-
cerned adult before or during the interrogation and instead
interviewed the juvenile alone in the middle of the night.
G.O., 191 Ill. 2d at 56-57, 727 N.E.2d at 1013. Here, respon-
dent's circumstances are less extreme than those in G.O. Re-
spondent was 16, 3 years older than the respondent in G.O., and
arrived at the Paxton police station voluntarily. Once there,
he signed a form acknowledging his Miranda rights (Miranda v.
Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966))
and submitted to police questioning in the presence of his
father. The totality of the circumstances suggest respondent's
admission was voluntary.
Respondent contends the Paxton police chief
"employ[ed] psychologically coercive tactics" during his
interview with respondent "by engaging in 'very aggressive' and
'very loud' questioning and accusing [respondent] of lying when
- 33 -
he repeatedly denied that he had engaged in sexual misconduct."
In support of this contention, respondent cites Mr. M.'s
testimony. Mr. M. testified respondent never made any
statements agreeing that he engaged in sexual misconduct.
However, the fact finder could reasonably view Mr. M.'s
testimony as suspect. He testified R.M. received similar
hostile questioning from the police chief, but Mr. M. did not
end R.M.'s questioning prematurely. He offered no explanation
as to why he did so in respondent's interview but not in R.M.'s.
Thus, the inference arises that Mr. M. may have cut off
respondent's interview because respondent made incriminating
statements. Foley further called into question Mr. M.'s
testimony that respondent made no admission during questioning
when she testified the police chief did not suggest respondent's
admission but, rather, that respondent himself provided the
answer.
We find respondent's admission voluntary, and
therefore, if Novak had filed a motion to suppress the
admission, it would have most likely been denied by the trial
court. Accordingly, we reject respondent's contention he
received ineffective assistance of counsel when Novak failed to
file a motion to suppress respondent's admission.
- 34 -
B. Right to Counsel
Next, respondent argues he was denied his right to
counsel when attorney Novak acted as both guardian ad litem and
defense counsel. Specifically, respondent contends the Act and
the due-process clauses of the Illinois and United States
Constitutions prohibit attorneys in delinquency proceedings from
serving as both defense counsel and guardian ad litem.
According to respondent, such "hybrid representation" creates a
per se conflict and, specific to the underlying facts in this
case, an actual conflict. We disagree.
As a threshold matter, we address the State's argument
that Novak "did not act as guardian ad litem." Although the
trial court never expressly appointed Novak as guardian ad
litem, both the court and Novak himself conceived his role as
that of a guardian ad litem--representing the minors' and
society's best interests--rather than that of a traditional
defense attorney. Accordingly, we treat the issues raised by
respondent as though the trial court formally appointed Novak as
guardian ad litem.
1. Per Se Conflict
Respondent argues attorneys may never serve as both
guardian ad litem and defense counsel in adjudication-of-
- 35 -
delinquency proceedings because a per se conflict of interest
always exists due to the adversarial nature of such proceedings.
Due-process claims present legal questions, which we
review de novo. People ex rel. Birkett v. Konetski, 233 Ill. 2d
185, 201, 909 N.E.2d 783, 796 (2009). Because statutory
construction and the interpretation of court rules also present
questions of law, they are also subject to de novo review.
Konetski, 233 Ill. 2d at 193, 909 N.E.2d at 791.
The due-process clause of the fourteenth amendment to
the United States Constitution requires counsel represent
juveniles during proceedings to determine delinquency. In re
Gault, 387 U.S. 1, 36-37, 18 L. Ed. 2d 527, 551, 87 S. Ct. 1428,
1448 (1967); see also U.S. Const., amend. XIV, §1. Similarly,
section 1-5(1) of the Act provides that "[n]o hearing on any
petition or motion filed under [the] Act may be commenced unless
the minor who is the subject of the proceeding is represented by
counsel." 705 ILCS 405/1-5(1) (West 2006).
However, despite respondent's arguments to the
contrary, the responsibility of the court-appointed juvenile
counsel varies from that of other court-appointed counsel
because juvenile proceedings under the Act are not as
- 36 -
adversarial as traditional, criminal proceedings. In re B.K.,
358 Ill. App. 3d 1166, 1171, 833 N.E.2d 945, 950 (2005). "[A]n
attorney appointed by the court in a juvenile proceeding 'must
not only protect the juvenile's legal rights but he must also
recognize and recommend a disposition in the juvenile's best
interest, even when the juvenile himself does not recognize
those interests.' [Citation.]" J.D., 351 Ill. App. 3d at 920,
815 N.E.2d at 16.
According to the Act, appointment of separate counsel
is unnecessary when the trial court has already appointed a
guardian ad litem who is also a licensed attorney in Illinois
"unless the court finds that the minor's interests are in
conflict with what the guardian ad litem determines to be in the
best interest of the minor." (Emphasis added.) 705 ILCS 405/1-
5(1) (West 2006). In other words, by permitting an attorney to
fulfill both roles, the Act recognizes that "[t]he roles of a
guardian ad litem and minor's counsel are not inherently in
conflict" because "[b]oth have 'essentially the same obligations
to the minor and to society.'" J.D., 351 Ill. App. 3d at 920,
815 N.E.2d at 15, quoting In re R.D., 148 Ill. App. 3d 381, 387,
499 N.E.2d 478, 482 (1986).
In their briefs, respondent and amici provide case law
- 37 -
from other states and scholarly articles in support of their
contention that hybrid representation as defense counsel and
guardian ad litem constitutes per se conflict. However, we are
unpersuaded and adhere to the established, above-cited case law
in Illinois, which allows and, in most cases, encourages counsel
for juvenile respondents to protect both minors' legal rights
and the best interests of the minors and society. As such,
although certain situations may arise in which a conflict exists
when an attorney serves as defense counsel and guardian ad
litem, a juvenile's attorney may serve dual roles without
creating a per se conflict of interest.
2. Actual Conflict
Respondent also contends that an actual conflict arose
from Novak's hybrid representation. Specifically, respondent
cites to "actions [Novak took] which adversely affected as
performance as defense counsel," such as Novak's decision to
waive cross-examination of J.L., D.L., and W.C. and allowing the
State "to present the bulk of its case via videotape."
An actual conflict of interest exists when "'"some
specific defect in [defense] counsel's strategy, tactics, or
decision making is attributable to [a] conflict."'
[Citations.]" Hernandez, 231 Ill. 2d at 144, 896 N.E.2d at 304.
- 38 -
"'"[S]peculative allegations and conclusory statements are not
sufficient to establish that an actual conflict of interest
affected counsel's performance."' [Citations.]" Hernandez, 231
Ill. 2d at 144, 896 N.E.2d at 304.
Respondent argues actual conflict existed when Novak
waived cross-examination of J.L., D.L., and W.C. and admitted
their testimony into evidence via videotape. However, our
review of the record reveals respondent expressly waived these
arguments prior to trial. Specifically, at the onset of the
adjudicatory proceedings against respondent, the following
exchange occurred:
"THE COURT: [Y]ou have an absolute right
to confront and cross-examine or ask
questions of all witnesses. You are giving
up the right to ask questions of these three
witnesses by [videotape].
* * *
Do you understand ***, [respondent]?
[RESPONDENT]: Yes, sir, Your Honor."
If the accused waives actual conflict at trial, to
obtain reversal on appeal, he must demonstrate prejudice at
trial, "i.e., special circumstances engendering an actual
- 39 -
conflict adversely affecting the defendant's right to a fair
trial." People v. Sanders, 294 Ill. App. 3d 734, 737, 691
N.E.2d 142, 145 (1998).
Here, we find no prejudice. In its written order, the
trial court deemed the videotaped testimony of J.L., D.L., and
W.C. lacking in credibility and instead based its adjudication
of respondent's delinquency on respondent's admission to Foley
and police that he engaged in oral sex with D.L. The court
further noted it also looked to "the State's other evidence" in
determining respondent's guilt, but this statement likely
pertained to Foley's and Sergeant Yates's in-court testimony,
not the videotaped interviews that the court deemed "suspect,"
"lack[ing in] credibility," and insufficient to prove R.M.'s
guilt. Moreover, counsel's decision not to cross-examine J.L.,
D.L., and W.C. served respondent's interests--namely, as counsel
noted, "[the State's Attorney] is giving up the ability to have
live testimony[,] which tends to be more persuasive than
[videotape]." Accordingly, we conclude that no actual conflict
existed in the case at bar and, assuming arguendo that conflict
was present, respondent was not prejudiced by any such conflict.
C. Sufficiency of the Evidence
Finally, respondent contends the State failed to prove
- 40 -
him delinquent beyond a reasonable doubt. We disagree.
In reviewing a challenge to the sufficiency of the
evidence, we consider the evidence in a light most favorable to
the prosecution. In re Matthew K., 355 Ill. App. 3d 652, 655,
823 N.E.2d 252, 255 (2005). We determine whether a rational
trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. Matthew K., 355 Ill. App. 3d
at 655, 823 N.E.2d at 255. "We will not substitute our judgment
for the judgment of the trier of fact unless the judgment was
inherently implausible or unreasonable." Matthew K., 355 Ill.
App. 3d at 655, 823 N.E.2d at 255.
Pursuant to section 12-15(b) of the Criminal Code of
1961:
"The accused commits criminal sexual
abuse if the accused was under 17 years of
age and commits an act of sexual penetration
or sexual conduct with a victim who was at
least 9 years of age but under 17 years of
age when the act was committed." 720 ILCS
5/12-15(b) (West 2006).
In the case at bar, the trial court afforded little to
no weight to the videotaped testimony of D.L., J.L., and W.C.
- 41 -
Rather, the court based its adjudication of delinquency as to
respondent on respondent's admission at the Paxton police
station that he performed oral sex on D.L. and "the State's
other evidence."
Testimony at respondent's adjudicatory hearing
differed as to whether respondent made the admission to Sergeant
Yates, Foley, and the Paxton police chief. Sergeant Yates and
Foley agreed respondent admitted he allowed D.L. "to suck his
dick," while Mr. M. testified respondent made no such statement.
The resolution of factual disputes and the assessment of the
credibility of witnesses is a matter for the trier of fact. See
In re Jessica M., 399 Ill. App. 3d 730, 738, 928 N.E.2d 511, 519
(2010), citing People v. Titone, 115 Ill. 2d 413, 422, 505
N.E.2d 300, 303 (1986). A reasonable trier of fact could have
found Sergeant Yates's and Foley's testimony more credible
because (1) they both attested to respondent speaking the exact
same words in his admission; (2) Foley referred to notes she
took the day of respondent's questioning at the Paxton police
department, which stated he told police he allowed D.L. to
perform oral sex on him; and (3) Mr. M. was biased because he
wanted his son to avoid possible imprisonment. Thus, the trial
court did not err in finding respondent guilty of sexual abuse
- 42 -
and adjudicating him delinquent.
III. CONCLUSION
For the above stated reasons, we affirm the decision
of the trial court.
Affirmed.
McCULLOUGH, J., concurs.
APPLETON, J., dissents.
- 43 -
JUSTICE APPLETON, dissenting:
I respectfully dissent from the majority's decision on
the basis that the judgment of the trial court cannot be
sustained because reasonable doubt as to respondent minor's
guilt exists.
The State and the attorney for the minors stipulated
that the testimony of the alleged victims could be received by
admission of their recorded statements, which were made to DCFS
at the CAC. The trial court found those statements to not be
credible. The determination of respondent's guilt then had to
be decided on the evidence of his interview with the DCFS
investigator and the Paxton police.
Both the DCFS investigator and the chief of police
testified that Austin made an inculpatory admission during their
interview of him. Both Austin and his father denied that any
such admission was made. It is obvious from the testimony at
trial that Austin's interview was a highly charged event.
Since two different recollections of this interview exist, it
proves the wisdom, if not the practical necessity, for recording
such interviews by sound, if not by video.
Because the evidence as to Austin's alleged admission
is a tie, with no particularized finding by the trial court that
- 44 -
it believed one version over the other, I would reverse the
adjudication as not being founded on evidence beyond a
reasonable doubt. The trial court's judgment in finding to the
contrary is more a result of its stated suspicion in its order
that "something" had happened. More is required to sustain a
juvenile adjudication with severe and lasting consequences to
the respondent minor.
- 45 -