Appeal from the Circuit Court of Cook County No. 08 JD 5307 Honorable Andrew Berman, Judge Presiding.
The opinion of the court was delivered by: Judge Epstein
JUDGE EPSTEIN delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Joseph Gordon concurred in the judgment and opinion.
In April 2009, respondent, Joshua B., was adjudicated delinquent, placed on probation, and ordered to perform community service. He appeals, claiming the trial court denied him due process by not advising him of his right to testify and not verifying that he was knowingly and voluntarily waiving that right. He also claims the trial court's order must be modified because his probation impermissibly extends beyond his twenty-first birthday. For the reasons below, we affirm as modified.
In November 2008, the State filed a petition for adjudication of wardship claiming respondent, who was 16 years old, robbed a fellow student. The student and an adult witness identified respondent as the robber in separate photo arrays and testified at his delinquency proceeding. Respondent, who was represented by counsel, called his girlfriend, mother, and father as alibi witnesses. They testified that respondent was at home talking to his girlfriend on a landline telephone at the time of the robbery. Respondent, who was not advised by the trial court of his right to testify, did not testify. The trial court adjudicated respondent delinquent, stating:
"We have witnesses, two eyewitness, to the event which is not often the case. Both of the eyewitnesses told internally consistent versions of what happened. There was not contradiction between one or the other.
What I find compelling evidence here, too, is that both of the eyewitnesses identified the young man, Joshua B***, in photo arrays that - I believe one was held at the police station and I think the other one was at the house of Joshua B*** [sic]. So, these are obviously not done contemporaneously. So, we didn't have a situation where it could be argued that one witness suggested an identification of another witnesses. They both picked out the same photo from that array.
You know, standing by themselves, each of those witnesses - I have big problems with a single-witness-identification case without other corroboration. We have two witnesses that both gave very compelling and consistent testimony that was very credible.
On the other side, we have an alibi defense that was put forth by family members. And I understand that that's often what witnesses are. There was - You know, it was interesting to me that the alibi defense really turned on phone calls; and yet, no corroboration of the phone calls was produced by way of records which is something that is available to the two people by way of subpoena and that that might have made an alibi a little bit more compelling than it was because there were inconsistencies between the stories.
And so, I find that the State has proved this case beyond a reasonable doubt.
I find that State's witnesses more credible; and so, there will be a finding of delinquency, finding of guilty."
The trial court placed respondent on five years' probation, until April 7, 2014, and ordered him to perform 60 hours of community service. Respondent appeals claiming the trial court denied him due process by failing to advise him of his right to testify and failing to verify that he knowingly and voluntarily waived that right. He also claims, and the State does not dispute, that ...