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The People of the State of Illinois v. Austin M.

August 30, 2012

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
AUSTIN M., A MINOR,
APPELLANT.



The opinion of the court was delivered by: Justice Burke

JUSTICE BURKE delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Garman and Theis concurred in the judgment and opinion.

Justice Freeman concurred in part and dissented in part, with opinion.

Justice Karmeier concurred in part and dissented in part, with opinion.

Justice Thomas dissented, with opinion.

OPINION

¶ 1 Austin M. was adjudicated a delinquent minor after he was found guilty of the offense of criminal sexual abuse (720 ILCS 5/12-15 (West 2006) (now 720 ILCS 5/11-1.50(b))). Austin appealed his adjudication and the appellate court affirmed, with one justice dissenting. 403 Ill. App. 3d 667.

¶ 2 We granted Austin's petition for leave to appeal. Before this court, Austin raises four issues: (1) whether the legal representation he received at his delinquency trial amounted to a denial of his right to counsel as guaranteed by the Juvenile Court Act and by the due process clauses of the United States and Illinois constitutions; (2) whether he received ineffective assistance of counsel because his attorney labored under a per se and/or actual conflict of interest; (3) whether he received ineffective assistance of counsel because of certain acts and omissions by his attorney; and (4) whether he was proved guilty beyond a reasonable doubt.

¶ 3 For reasons that follow, we reverse the judgments of the courts below.

¶ 4 I. Background

¶ 5 In August 2006, Ford County State's Attorney Anthony Lee filed delinquency petitions against Ricky M., age 15, and Austin M., age 16, charging them with misdemeanor criminal sexual abuse. It was alleged in the petitions that between July 14, 2005, and July 14, 2006, Ricky and Austin had engaged in acts of fellatio and had fondled the sex organs of each other and two boys, Dillon L.,*fn1 age 10, and Jonathon L., age 12, who had been foster children living in the M. family foster home. Ricky and Austin were tried at a joint delinquency trial, which commenced on January 19, 2007, and was continued to April 3, 2007. The boys' parents, James (Jim) and Rebecca (Becky) M., hired an attorney to represent both Ricky and Austin at trial.

¶ 6 At a September 25, 2006, pretrial hearing, the court inquired whether the attorney whom Mr. and Mrs. M. had hired was appearing on behalf of the boys as well as the parents. The attorney replied, "I think the minors, Judge." The court then admonished Mr. and Mrs. M. as follows: "At this point, [the attorney] 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 Minors, which may or may not be what the Minors or the parents think is in their best interest."

¶ 7 The court also admonished the parents that, if the allegations in the delinquency petitions against their sons were proven beyond a reasonable doubt, the boys could be placed on probation, removed from the home and placed in a public or private facility, or committed to the Illinois Department of Juvenile Corrections. The court then asked:

"Any questions regarding the basic rights of these proceedings, Mr. and Mrs. [M.]?"

¶ 8 Trial began on January 19, 2007. At the outset of trial, the boys' attorney made a statement to the court, explaining his reasons for simultaneously representing both respondents. He also informed the court of his decision to permit the State to present videotaped statements of the alleged victims, Jonathon and Dillon, and a third foster child, Willie C., age 5, in lieu of live courtroom testimony. He stated:

"I have procedural points-I agreed to proceeding, and I think in a unique, at least, a new way in one respect or two respects-and I wanted to explain my decisions on the record and explain why I believe that's in my client's [sic] best interest.

THE COURT: That's fine. [Defense Counsel]: Yeah, I had, Judge. I first of all have agreed with Mr. Lee [the prosecutor] to proceed. We have three witnesses that are children; Willie [C.], Jonathon [L.] and Dillon [L.], and I have agreed with Mr. Lee that I am going to not oppose their testimony by way of video tape, Judge, a couple video tapes made in July, and one made in October I believe.

I am comfortable doing that in this case. I say that there-I want to make it clear; my clients have consistently denied the allegations that are being made by these complaints and to the extent-with one exception. There was a claim on the admission on the part of Austin, which we dispute, but they have denied this. This is a contested hearing.

Nevertheless, this is a juvenile hearing. I have talked this over pretty carefully with my clients, as well as with their parents, and I been [sic] 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 here, but my clients are 15 and 16 years old and the victims are 10 and 12 years old at the time. And I think our, at that time, attitude is we have grave doubts these things occurred.

The boys deny they occurred, but I think the parents and I agree-I think with Mr. Lee as well-that if such acts happened, then it needs to stop. An intervention is not inappropriate by way of government to help these boys if such things happened. You know, so. We are on the same page, and we don't want to cause trauma to anybody. I have a duty to these two boys, nobody else. But we are, we are not-we are seeking the truth this here [sic] the same as the Court and the same as the prosecutor is our position. And I am comfortable with proceeding by way of the video tape as opposed to requiring these young children to come into Court at this hearing, and obviously there is pluses and minuses, I suppose, for both sides. We are giving up our right to confront these witnesses in Court.

THE COURT: I assume, that's the case. There is no cross-examination by you.

[Defense Counsel]: No, there won't be. And we dispute their allegations.

THE COURT: I understand. [Defense Counsel]: And on the other hand, Mr. Lee is giving up the ability to have live testimony which tends to be more persuasive than video tape. Bottomline, I am comfortable with it. The other decision that I made here, Judge, that I want everybody to be clear on, and I want to explain, is I am representing two clients here, and ordinarily, if this were an adult case-I cannot imagine-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 talking about different possible alleged acts of different kinds. Nevertheless, I think in a juvenile hearing where it is a misdemeanor allegation, where it is a judge proceeding as opposed to a jury proceeding, I am fully capable of handling this, and where I believe the-I don't view such a proceeding as adversarial as it might be if it were an adult case.

I view this as a truth-seeking process on all parts. I explained this to the parents, I think they are comfortable with me being a lawyer for both kids. They agree it is in the best interest and beneficial to everybody that I continue to represent both, but I wanted to say that on the record, Judge.

Now, if the Court or prosecutor has any problem with me doing that, you know, I am ready to hear thoughts. I am comfortable with being a lawyer for both and comfortable with proceeding with the testimony by way of video tape. Thank You."

¶ 9 The boys' attorney also informed the court that, in exchange for permitting the prosecution to present videotaped statements of the three foster children, the State had agreed to ask for a sentence of probation rather than commitment to the Department of Juvenile Justice, in the event that the boys be found guilty. The court asked Jim and Becky M. if they understood this compromise, but did not consult Austin or Ricky.

¶ 10 The matter then proceeded to trial. The State presented two live witnesses, Sergeant Robert Yates, a police officer in the Paxton police department, and Sheree Foley, a child protective investigator with the Department of Children and Family Services (DCFS) in Urbana, Illinois. The only other evidence presented was the videotapes of Sheree Foley's interviews of Dillon, Jonathon and Willie.

¶ 11 The first witness was Sergeant Yates, who testified that he became involved in this case when Sheree Foley, a DCFS worker, came to the Paxton police station on July 14, 2006, and informed him of her investigation into a report of sexual abuse. Yates said he and another officer, Captain Cornett, accompanied Foley to the foster home where the abuse allegedly took place. Foley removed two foster children who were living there, Jonathon L., age 12, and Willie C., age 5, and brought them to the Paxton police station. Yates testified that, after Foley interviewed Jonathon and Willie, the Paxton police department contacted Jim and Becky M., who then brought their sons, Austin and Ricky, to the police station for questioning.

¶ 12 Yates also testified that he was present when Paxton Police Chief Robert Bane questioned Austin and Ricky individually. Yates recalled that Ricky was interviewed first and that Chief Bane told Ricky that he was being accused of "inappropriate behavior," "inappropriate touching," and "coercing others to perform oral sex." Yates said that Ricky appeared extremely nervous, but denied any wrongdoing.*fn2

¶ 13 Yates further testified that when Chief Bane questioned Austin,

Austin was first asked to sign a form indicating that he had been advised of his Miranda rights and that Austin's father, Jim M., who was present during both interviews, signed the same form as a witness. Thereafter, Chief Bane advised Austin, as he had with Ricky, that he was being accused of "inappropriate touching" and "performing oral sex." Yates testified that Austin, like Ricky, denied doing these things. However, he said that Chief Bane continued to ask Austin the same questions over and over again in a way that made it clear that he did not believe that Austin was telling the truth. In response to this repeated questioning, Austin said he let Dillon "suck his dick." Yates said Austin's father immediately interrupted, stating that they wanted to speak to a lawyer and Austin's interview was then concluded.

¶ 14 Defense counsel made no objections to any of Yates' direct testimony. However, on cross-examination the following colloquy took place:

"[Defense Counsel]: You wrote a written report, you are holding that in your hand?

[Yates] A. It's my report, sir. Q. Okay. I am taking it, you are kind of using that report to-

A. To recall.

Q. -to remember what happened?

A. That is correct.

Q. And that's been a few months?

A. Yes, it has."

¶ 15 The next witness was Sheree Foley, who testified that her involvement in this case was initiated by a child abuse hotline report transmitted by the Vermilion County DCFS on July 14, 2006. According to this report, Dillon L., age 10, who had been a foster child in the M. foster home from August 2005 through June 2006, alleged that he had been sexually abused on several occasions while he was living there. The alleged perpetrators of the abuse were Ricky M. and Austin M., the foster parents' sons.

¶ 16 Foley testified that, although Dillon was no longer living in the M. foster home, she decided to visit the foster home the same evening she received the report because two other foster children-Jonathon L. and Willie C.-were living in the home. Foley said she notified the Paxton police department of her investigation and two Paxton police officers accompanied her to the foster home. Foley removed Jonathon and Willie from the foster home and transported them to the Paxton police station, where she then interviewed the two boys.

¶ 17 When asked about that interview, Foley, without any objection by defense counsel, stated:

"I interviewed both boys, and I got enough information to know that these children needed to be interviewed at the CAC due to the allegations and the type of allegations we did not want to go on interviewing them in the police station. So at that time when we had information from the boys that sexual abuse had-sexual abuse did occur in the home, that [sic] Paxton PD brought in the two boys, older boys to interview them, Ricky and Austin."

¶ 18 At about 10 p.m. on July 14, 2006, Jim and Becky M. arrived at the Paxton police station with Ricky and Austin, who were then questioned by Paxton Police Chief Robert Bane. Foley testified that she was present during the questioning of the boys. She stated that Ricky denied the accusations, but that Austin stated he allowed Dillon*fn3 to "suck his dick." Foley testified that, after Austin made this statement, Mr. M. said they would like an attorney and the interview was terminated.

¶ 19 Foley also testified that the following morning, July 15, 2006, she conducted videotaped interviews with Willie and Dillon at the Child Advocacy Center (CAC) in Urbana. Jonathon was not reinterviewed at that time because Foley did not feel he was ready to disclose any information. Instead, Jonathon was interviewed three months later, when he was brought to the CAC as part of a new and unrelated sex abuse investigation.

¶ 20 On cross-examination, Foley admitted that Dillon was initially placed in foster care because he had been the victim of sexual abuse while living with his mother. Foley also admitted that between May and June 2006 Dillon had made two unfounded reports of child abuse (not sexual abuse) against Jim and Becky. Dillon was removed from the M. foster home in June 2006 and placed with his grandmother. While staying with his grandmother, Dillon began to "act out" sexually and was found making inappropriate sexual advances toward a young cousin. When the grandmother talked to Dillon about his behavior, he made the accusations of sexual abuse at the M. foster home.

¶ 21 Defense counsel asked Foley why she did not interview Jonathon at the CAC until October 2006. Foley explained that when she interviewed Jonathon on July 14, 2006, he told her that the only inappropriate or sexual touching he had observed while staying at the foster home was between Dillon and Willie. Jonathon also said that Dillon had repeatedly tried to touch him, Ricky, and Austin, but they all refused Dillon's advances. Despite these revelations, Foley described Jonathon as "very closed" and stated that, based on her observations of Jonathon's "body language," she did not believe Jonathon would tell her anything more. For this reason, she did not have him brought to the CAC the next day. In October 2006, however, Jonathon was brought to the CAC for an investigation of another, unrelated sexual abuse incident. Foley said she used this opportunity to question Jonathon about this case.

¶ 22 Defense counsel also questioned Foley about her observations at the time Austin was interviewed at the Paxton police station on July 14, 2006. The following colloquy took place:

"Q. What did he say to your recollection?

A. He talked about, you know, one of the boys in the home; he allowed him to suck his dick.

Q. All right. Well, the reason I am asking it this way is that you phrase it in your report is [sic] you say on page 37, you say he began to talk about Dylan [sic] performing sucking his dick, and Mr. [M.] is concerned and the interview stopped; is that true?

A. That's true.

Q. I am curious about the phrase he began to talk about Dylan [sic]. I mean, you don't say he said it. You say he began to talk about it.

A. He started to talk about it.

Q. Okay. All right. And it sounds like he was cut off.

A. He was."

¶ 23 After Foley testified, the court viewed the videotapes*fn4 of Sheree

Foley's interviews with Willie and Dillon, which took place at the CAC on July 15, 2006, as well as the videotape of Sheree Foley's interview with Jonathon, which took place at the CAC in October 2006.

¶ 24 The videotape of Dillon's interview shows that Foley spoke with him for approximately 27 minutes. Foley first asked Dillon to tell her about the M. foster home and Dillon began by stating that Austin and Ricky, as well as two of Jim and Becky's other children, Abby and Jennifer, were "mean" to him and "called him names." Dillon then claimed that he witnessed Austin and Ricky "humping" Jennifer and Abby. Dillon also said that Austin and Ricky forced him to "suck their dicks" and that they carried knives and threatened to kill him if he did not do what they said. However, Dillon's main focus was on Austin and Ricky's alleged behavior with their sisters, which he described as "sick."

¶ 25 In the course of the interview, Dillon often contradicted himself.

For example, Dillon first stated that he never saw Austin or Ricky forcing anyone else to "suck their dick," but later said it happened to Jonathon. Also, Dillon first said that Becky never hit him, but later said that Becky hit him "everywhere" and that this happened "all the time." His excuse for not telling Jim and Becky anything about the sexual abuse by Austin and Ricky was "they didn't care."

¶ 26 The videotape shows that, during the interview, Dillon became fascinated by some anatomically correct dolls that he found in a bag in the interview room. He spent a good deal of time undressing the dolls and playing with them to describe what he claimed Austin and Ricky were doing to their sisters and to him and Jonathon.

¶ 27 The second videotape showed Foley's July 15, 2006, interview with Willie at the CAC, which lasted just over 20 minutes. It is clear from the videotape that Willie, who was five years old, was very restless. He yawned and stretched and was distracted by a juice box he was drinking. He also expressed frustration with the questions and at one point said, "No, I'm done talking." He claimed that he saw Austin touch Ricky's "wiener" but said this happened in their bedroom and that he was sleeping in his own bedroom when he saw this. Since Willie's room was on a different floor from Austin and Ricky's room, this would have been impossible.

¶ 28 Willie also told a fantastic story about Austin and Ricky hitting people "in their butts" with a shovel. Willie said the police arrived and took people to the doctor because "somebody got killed." Willie also claimed the family dog, Maggie, licked Dillon's "bootie" and said this also happened to "Tucker" (who apparently is another dog). Willie said he never saw Jennifer or Abby naked, but that Chris (an older son of Jim and Becky M.) pulled down his pants and showed him his private part. Finally, Willie said that no one touched him, but if anyone had tried to touch his private parts he would have told Becky.

¶ 29 The last videotape was the recording of Foley's interview of Jonathon at the CAC on October 27, 2006, which lasted about 20 minutes. When asked about the M. foster home, Jonathon's first response was, "I don't know if you know this, but Dillon was sexual at Becky's."

¶ 30 At first, Jonathon said he never saw anything and did not remember anything. However, after much prompting from Foley, he stated that Ricky would make Dillon suck his private part. Jonathon said Ricky and Austin asked him to suck their private parts, but he refused and no one made him do it. Jonathon also said that he saw nothing of a sexual nature with regard to Willie, Jennifer, Abby, or Chris. However, he later stated he saw Austin touch Jennifer over her clothes, but that Jennifer got mad and "smacked" him.

¶ 31 Jonathon said that Dillon often complained about getting hit, but that Dillon would hit Willie. Jonathon also said that Dillon did not listen and that he stole things a lot. When asked if there were problems at the M. foster home, Jonathon said that Ricky had "anger problems" and "when he didn't take his medication he would hit people." Jonathon also said Austin had anger problems and "touching problems." He said that Austin carried a pocket knife and scared him with it. Also, he said that "every day" Austin wanted Dillon or Jonathon in his room and tried to put his "thing" in their butts, but they refused.

¶ 32 After the videotapes were played, the State rested. The defense then called Ricky and Austin's siblings, Anthony, 22, and Abby, 20, as witnesses. After they established that they had been living in the M. home during all or part of the time that Dillon and Jonathon were foster children there, Anthony and Abby testified that they never saw anything of a sexual nature going on between the foster children and Austin and Ricky. After their testimony, the matter was continued.

¶ 33 Trial resumed more than two months later, on April 3, 2007. On this date, the defense continued with testimony from Jim and Becky M., Austin and Ricky's parents.

¶ 34 Becky testified first. She said that she had been married to Jim for 29 years and that they had eight children-three biological children and five adopted children. The three biological children were Anthony, 22 (who had testified earlier), Nicholas, 27, and Sarah, 25. The adopted children were Chris, 20, Abby, 18, and Austin, 16 (who are biological siblings), as well as Jennifer, 18, and Ricky, 15. Austin was adopted when he was only five weeks old; Ricky was adopted when he was 15 months old. Becky also testified that she has worked outside the home as a teacher's aide since 1993.

¶ 35 After the preliminary questions, defense counsel asked Becky about the allegations against Austin and Ricky:

"[Defense counsel] Q. Fair to say that you disapprove of sex among children?

[Becky] A. Yes. Q. Be fair to say that-let me ask you this. These are your adopted kids, Ricky and Austin?

A. Yes.

Q. You love them?

A. Yes.

Q. You want the best for them?

A. Yes.

Q. These allegations cause you concern, do they not?

A. Yes.

Q. Would you participate in a coverup of such activity to try to prevent the truth from coming out?

A. No.

Q. You don't believe these allegations are true; is that right?

A. No.

Q. But you're concerned?

A. Yes.

Q. You can't be with your kids every minute of the day, can you?

A. No.

Q. And things can happen outside your knowledge?

A. Yes.

Q. Is that right? When you heard these allegations, did you talk to Austin about it?

A. Yes.

Q. How often did you talk to him?

A. I probably did it quite often because I was getting mad because I was trying to use anything, you know, tell the truth, we can get help, you know, you can't lie about this. I did it many, many times or tried to trick him saying, you know something but they always stuck to this has never happened."

¶ 36 Becky was also questioned at length about several photographs she had taken which depicted the layout of the second floor of the family home. Becky testified that the door to the bedroom used by the foster children could not be closed because it was partially off its hinges. In answer to questions posed by defense counsel, Becky also established: that Jonathon had come to their foster home in 2004, that there had been no allegations of sexual abuse prior to Dillon's arrival, that Austin and Ricky were not allowed to baby-sit for the foster children, and that Austin and Ricky did not carry pocket knives because Ricky had once used a knife to vandalize a school bus.

¶ 37 Becky was then asked if she ever suspected any sexual activity between any of the boys. Becky stated that she did have some suspicion regarding Dillon and Jonathon. Becky explained that Jonathon had complained about Dillon bothering him while he was getting dressed. For this reason, Becky had Dillon come downstairs in the morning to dress. Becky also testified that Dillon had been difficult to control and needed special supervision. Becky noted that, soon after Dillon arrived, she took him to a counseling session. After the session, while she was talking to the counselor, Dillon was supposed to wait in the waiting room, but instead left the building. She and the counselor later found him in her van, naked. Also, a short time after Dillon came to her home, she found Dillon and Jonathon together in Jonathon's bed. From then on, throughout the time that Dillon was in her home, she required Dillon to stay downstairs with her until he started to get sleepy. Becky said this was necessary because Dillon did not fall asleep easily and she did not want him upstairs disturbing the other boys.

¶ 38 Becky also noted that Dillon had a problem stealing things at school, at home, and in the community. She said if Dillon was unsupervised he would go into people's rooms and steal things. For this reason, Dillon was not allowed upstairs during the day.

¶ 39 On cross-examination, the prosecutor asked Becky about some "bad acts" by Austin when he was six years old and alluded to some recent accusations of improper touching by Austin. The prosecutor also asked Becky a number of questions about Austin's alleged admission at the police station, even though Becky explained that she had not been present. The following colloquy between the prosecutor and Becky took place:

"Q. Did Jim tell you about Austin starting to make that disclosure?

A. No. Q. Did you become aware that Austin started disclosing what was going on between he and Dylan [sic]?

A. When I got the police report and I filled in all the numbers with which child, that's when I read it.

Q. When you were trying to get the truth out of Austin, did you ask him about that statement?

A. Yes, I did. Q. Did you allow him to complete his story about what was going on there?

A. Yeah. Q. Do you believe Austin wasn't telling the truth about allowing Dylan to suck his penis?

A. No. Austin didn't have much to do with him. He had other friends.

Q. So you believe Austin wasn't telling the truth about that?

A. That he didn't do it? Q. His statement to the police that he did do it and was engaged in doing it with Dylan [sic]?

A. And I asked him and he said he never said that. Q. Did you have any discussions with your husband about cutting off the questions when Austin started disclosing about the sexual conduct between he and Dylan [sic]? Did you ask your husband why he cut that off?

A. Because they were kind of getting nasty and saying you're a liar."

ΒΆ 40 Until now, defense counsel did not object to any of the prosecutor's questions. At this point, defense counsel made an objection based on hearsay, which the ...


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