APPEAL from the Circuit Court of Williamson County; the Hon.
WILLIAM A. LEWIS, Judge, presiding.
MR. JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant Richard Lewis was found guilty of armed robbery, robbery and theft by a jury in the circuit court of Williamson County and was sentenced to a term of imprisonment of not less than four nor more than 10 years for armed robbery. Defendant asserts the following issues on appeal: (1) whether the trial court erred in exercising jurisdiction over the defendant; (2) whether the trial court erred in instructing the jury to disregard any attempts at impeachment of the complaining witness by the use of prior inconsistent statements; (3) whether the trial court erred in not sustaining objections to certain questions asked by the prosecutor during his cross-examination; (4) whether the trial court erred in instructing the jury on accountability; (5) whether defendant was denied due process of law on the basis of the representation afforded him by his trial counsel; and (6) whether the evidence at trial was sufficient to establish defendant's guilt beyond a reasonable doubt.
Defendant was 16 years old at the time of the robbery; nevertheless through his retained counsel he made a motion pursuant to section 2-7(5) of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 702-7(5)) seeking to waive juvenile jurisdiction and electing to have himself tried as an adult. This motion was granted by the trial court. No hearing was conducted on the motion, and defendant was not admonished by the court at the removal hearing as to the possible consequences of being tried as an adult. However, at a preliminary proceeding, defendant was informed by the trial judge that he would receive a minimum of four years in prison upon conviction of the armed robbery charge. The court added further that it could not grant probation.
At the trial of Richard Lewis and his co-defendant, the evidence showed that on December 27, 1976, at approxiately 9:30 p.m., the sole attendant on duty at the Owens Gas Station in Marion, Illinois, was forced at gunpoint to hand over some $81 in currency to two young men. The station attendant testified that he first observed defendant using a vending machine outside the station. Defendant returned minutes later and entered the station's office and asked the attendant to make change for a $20 bill. While the attendant was counting out single dollar bills, co-defendant entered the office wielding a shotgun. Both men demanded money and when the attendant asked whether they were kidding, co-defendant pointed the weapon at the attendant and asked whether they looked like they were kidding. The attendant then gave them $81. He testified that the entire incident lasted between five and 15 minutes, that the office was well lighted, and that he saw the faces of both men from a distance of about three feet.
From five photographs shown to him by police approximately a month after the robbery, the attendant identified defendant as the robber who asked for change. Prior to trial, according to defendant's investigator, the attendant could not identify defendant or co-defendant from a group of photographs shown to him by the investigator on three or four separate occasions. However, at both the preliminary hearing and the trial the attendant stated that he recognized defendant and co-defendant as the men who robbed him, although by the time of trial they had altered their hairstyles and appearances.
During cross-examination, counsel for co-defendant attempted to impeach the attendant's testimony by questioning him about prior inconsistent statements made to the Marion police and at the preliminary hearing with respect to the time of the robbery, the time the attendant's shift ended on the night of the robbery, the clothing worn by the robbers, the characteristics of the shotgun used and the age of the robbers. However, no evidence of the prior inconsistent statements was offered as a foundation for the attempted impeachment.
Defendant's alibi was that he was at co-defendant's home on the night of the robbery from 8:30 p.m. until 10:15 p.m. This alibi was corroborated by the testimony of co-defendant and his mother.
At the close of defendant's case and prior to closing arguments, the trial court instructed the jury to disregard the attempted impeachment of the attendant due to the failure of both defense counsel to lay a proper foundation for the attempted impeachment by failing to offer any evidence of the prior inconsistent statements.
During deliberation, the bailiff received a note from the jury which he gave to the trial judge. In the presence of the prosecutor and both defense counsel the trial judge read the note aloud which stated: "If found guilty of armed robbery do both persons have to be armed with a gun?" The judge suggested that Illinois Pattern Jury Instructions, Criminal, No. 5.03 (1968) (hereinafter IPI) be submitted to the jury in answer to their question. Neither defense counsel objected to the jury receiving this accessoryship instruction nor did they object to having the bailiff hand the instruction to the jury foreman through the door of the jury room.
Initially, defendant contends that the trial court erred in exercising jurisdiction over him for the following reasons: (1) he did not personally participate in the decision to waive juvenile jurisdiction; (2) assuming arguendo that he did make the decision to waive juvenile jurisdiction, such decision was not made knowingly and intelligently; and (3) the trial court accepted the waiver without conducting a hearing to ascertain whether the waiver was made knowingly or intelligently.
1 Section 2-7(5) of the Juvenile Court Act (Ill. Rev. Stat. 1975, ch. 37, par. 702-7(5)) provides a mechanism whereby a juvenile, as a matter of right, can have a juvenile petition against him dismissed and elect to be tried as an adult for his actions. (People v. Thomas (1976), 34 Ill. App.3d 1002, 341 N.E.2d 178.) This section states in part:
"If a petition alleges commission by a minor 13 years of age or over of an act which constitutes a crime under the laws of this State, the minor, with the consent of his counsel, may, at any time before commencement of the adjudicatory hearing, file with the court a motion that criminal prosecution be ordered and that the petition be dismissed insofar as the act or acts involved in the criminal proceedings are concerned."
Defendant argues that the language, "the minor, with consent of counsel, may, * * * file * * * a motion," requires that the minor must personally waive juvenile jurisdiction before the waiver can be valid. Thus defendant contends that the record must reflect the fact that the juvenile personally made the decision to remove. Defendant notes that it was his counsel who, during the removal hearing, made the motion to waive juvenile jurisdiction. It is maintained by defendant that the record is devoid of any facts indicating that he personally made the decision to remove. Therefore, defendant concludes that not only did the record fail to establish that he personally made the removal decision, but it also demonstrated that the decision was made solely by his counsel, thereby rendering the waiver invalid.
2 Although we agree that a juvenile should personally consent to any removal decision and that the record should reflect this consent, we cannot agree with defendant's argument that his counsel was solely responsible for the waiver.
3, 4 Where the record reveals that a juvenile was present in court with his counsel, and his counsel made a motion to have the case removed from juvenile jurisdiction, the record is sufficient to support a finding that the juvenile personally consented to the removal. Such consent is presumed unless the record shows facts to the contrary, such as evidence of protestation on the part of the juvenile or his parents when the motion to remove is made. The record in this case shows that the defendant was present in court when his counsel made the motion for removal. Moreover, neither defendant nor his mother, who was also present in court, voiced any objections to the court or to defendant's counsel about defendant being tried as an adult. Accordingly, on the basis of the record at the removal hearing, we hold that defendant personally consented to the removal.
This holding is further supported by testimony from defendant's father at the hearing on defendant's post-trial motion.
"Q. Had it been agreed between you, your attorney and your son that they would waive juvenile jurisdiction?
A. Well, my son willingly went along with whatever he thought best."
Next, defendant argues that even if he did consent to removal, such consent was invalid because it was not given knowingly and intelligently. Defendant claims at the time of the motion for removal his only understanding about the difference between juvenile and adult court was that he could have a jury in adult court but not in juvenile court. Defendant contends that his counsel did not inform him of the actual and potential consequences of his being convicted as an adult, specifically the fact that he would receive at least a minimum of four years in prison if convicted of armed robbery.
At a preliminary proceeding, which occurred a few weeks after the removal hearing and six months prior to trial, the following dialog occurred between the trial judge and defendant:
"THE COURT: Now Armed Robbery, a person commits armed robbery when he violates section 18-1, in other words, the robbery section, while armed with a dangerous weapon. So is there any question ...