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In re Edgar C.

Court of Appeals of Illinois, First District, Fifth Division

December 31, 2014

In re EDGAR C., a Minor The People of the State of Illinois, Petitioner-Appellee,
Edgar C., a Minor, Respondent-Appellant

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As Corrected.

Appeal from the Circuit Court of Cook County. No. 13 JD 50108. The Honorable Richard F. Walsh, Judge, presiding.

For Appellant: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Bryon M. Reina, Assistant Appellate Defender, Office of the State Appellate Defender, First Judicial District, Chicago, IL.

For Appellee: Anita Alvarez, State's Attorney, County of Cook, Alan J. Spellberg, Mary Needham, Heather Fahrenkrog, Assistant State's Attorney, Chicago, IL.

JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Reyes concurred in the judgment and opinion.


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[¶1] Respondent Edgar C., a 16-year-old minor at the time of the offense, was found guilty of robbery, theft and battery and adjudicated delinquent and sentenced to five years' probation.

[¶2] On this direct appeal, respondent requests this court: (1) to vacate his theft adjudication because it stems from the same physical act as his robbery adjudication and thus violates the one-act, one-crime rule ( e.g., In re Samantha V., 234 Ill.2d 359, 375, 378-79, 917 N.E.2d 487, 334 Ill.Dec. 664 (2009) (" the one-act, one-crime rule applies to juvenile proceedings," and a violation of the rule constitutes plain error under the second prong of the plain error doctrine)[1]; People v. Dressler, 317 Ill.App.3d 379, 387-88, 739 N.E.2d 630, 250 Ill.Dec. 867 (2000) (vacating defendant's theft charge under the one-act, one-crime rule because it stemmed from the same act as his armed robbery charge)); and (2) to modify his sentence of five years' probation so that it terminates on his twenty-first birthday as required by the Juvenile Court Act of 1987 (the Act) (705 ILCS 405/1-1 et seq. (West 2012)). Section 5-755 of the Act provides that: " The wardship of the minor *** automatically terminates when he or she attains the age of 21 years ***." 705 ILCS 405/5-755 (West 2012); In re Jaime P., 223 Ill.2d 526, 534, 861 N.E.2d 958, 308 Ill.Dec. 393 (2006) (holding that there is a " jurisdictional cap of 21 years" on the 5-year probation requirement). The State agrees and joins in both these requests, and we so order them.

[¶3] In addition, respondent argues: (1) that his trial counsel was ineffective for failing to file a motion to quash arrest either before or during trial; and (2) that the mandatory probation provision of section 5-715(1) of the Act (705 ILCS 405/5-715(1) (West 2012)) violates his equal protection rights under the federal and state constitutions. U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2.

[¶4] Respondent asked us to remand for resentencing only if we strike the mandatory probation provision of the Act. However, he did not request a resentencing if we vacate only the lesser-included theft charge.

[¶5] For the following reasons, we do not find respondent's ineffectiveness and equal-protection claims persuasive and we affirm his adjudication of delinquency for robbery and battery, but we vacate his theft adjudication and modify his five-year sentence of probation to terminate on his

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twenty-first birthday, which will be January 16, 2018.[2]


[¶7] I. Pretrial Proceedings

[¶8] Since the victim, J.B., age 16, was also a minor at the time of the offense, and since he has a distinctive first name, we use his initials instead of his full name. Illinois Supreme Court Rule 660(c) provides that in all appeals filed from proceedings under the Act, the " involved" minors shall be identified by first name and last initial only or by initials only; and that the method of using initials only is " to be used when, due to an unusual first name or spelling, the preferred method would create a substantial risk of revealing a minor's identity." Ill. S.Ct. R. 660(c) (eff. Oct. 1, 2001).

[¶9] On August 22, 2013, the State filed a petition for adjudication of wardship alleging that respondent, who was born on January 16, 1997, and was then 16 years old, committed robbery, theft and battery of J.B. on July 31, 2013. Both the robbery and theft counts alleged that respondent wrongfully took a cell phone from J.B. and the battery count alleged that respondent slapped J.B. in the face with his open hands.

[¶10] On September 6, 2013, respondent was arraigned with his mother and father present, and an assistant public defender (APD) was appointed to represent him. The APD then " acknowledge[d] receipt of the discovery packet" in open court. However, this " discovery packet" is not part of the appellate record, and the transcript does not describe the packet's contents. A written order, entered by the trial court on September 6, 2013, also stated: " Discovery tendered."

[¶11] As for discovery, the appellate record contains only the State's one-page answer to respondent's discovery request. The State's answer was filed on September 6, 2014, which is the same day that the APD acknowledged in open court that she received a " packet" from the State. The answer stated that the State may call as witnesses any person named in police reports and other documents which are " attached to and incorporated as part of this answer." The answer stated that witness statements were described in these documents, as well as items that may be used at trial as physical evidence. The answer also stated that these documents described " the identification procedure." However, the answer in the appellate record does not have any documents attached to it.

[¶12] It appears that defense counsel must have received police reports because, subsequently at trial, defense counsel marked a police inventory form as Defense Exhibit No. 1 for identification. However, none of the police reports, including the inventory form, are in the appellate record.

[¶13] II. Trial

[¶14] A. The Victim's Testimony

[¶15] On March 14, 2004, the bench trial commenced with the victim J.B. as the State's first witness. J.B. testified that he is 16 years old and that, on July 31, 2013, he left his grandmother's house at approximately 1 p.m. and dribbled his basketball to a park near 97th Street and California Avenue where he remained until approximately 2:30 p.m. J.B. then observed a group of four teenagers, approximately 20 to 25 feet away. Two boys were between

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15 and 17 years old; one boy was between 18 and 20 years old; and the one girl was approximately 17 or 18.

[¶16] J.B. testified that he had never seen these four teenagers before, and he was about to turn around and go home, when one of the boys called out: " Come here so I can give you some advice." The speaker was wearing a purple jumpsuit with a black stripe on the sleeves. Next to the speaker was a boy in a black jeans jacket. The other two people in the group, a boy and a girl, were sitting on top of a slide. J.B. pretended that he did not hear the speaker and turned around to head home, but the speaker called out to J.B. again. Then J.B. walked over to the speaker. The boy in the purple jumpsuit asked if J.B. was in the " BDK" gang. J.B. said no and that he did not live near the park. The boy then stated: " If you are not with us, you are against us." The boy added: " Now I need to get my three slaps in." Then the boy slapped J.B. three times on J.B.'s left cheek with the boy's open right hand.

[¶17] J.B. testified that, next, the boy in the black jeans jacket said, " Now I gotta get my slaps in" ; and he slapped J.B. three times on J.B.'s right cheek with his left hand. Then they told J.B. he could go home, and J.B. started walking away, when the boy in the purple jacket called him back.

[¶18] The prosecutor then asked J.B. if he could look around the courtroom and identify the person who " had this purple jacket that day" and who had slapped J.B. three times. J.B. then identified respondent. However, as we will explain later, this in-court identification subsequently proved to be confusing because, later in his testimony, J.B. related how, at the police station, he identified a photograph of respondent as the boy in the black jacket. See infra ¶ ¶ 29-30.

[¶19] After the in-court identification, the prosecutor phrased his questions asking about the " minor respondent." Thus, at this point, in describing J.B.'s testimony, we will use the term " respondent" when it is clear that J.B. is responding to the prosecutor's questions about the " minor respondent."

[¶20] J.B. testified that, when respondent called J.B. back, J.B. said no and that he was going to keep walking. Then respondent stood up and reached toward his pocket, unzipped it and said " Don't make me make this call," while also reaching his hand inside the pocket. J.B. thought he might have a weapon in his pocket and so he stated: " I don't want any trouble." Then respondent told J.B. to sit down in the wood chips, which he did. As J.B. was sitting down, his cell phone fell out of his pocket and J.B. picked it up and was about to place it back in his pocket, when respondent asked J.B. if he could use J.B.'s phone to make a call.

[¶21] J.B. testified that he said no because earlier he had observed three phones fall out of respondent's pocket; so J.B. asked respondent why he could not use one of those three phones to make his call. Respondent said " Don't make me make this call," while reaching towards his pocket again. Then J.B. handed respondent his phone and said: " Okay. Just one call." After J.B. handed respondent his phone, respondent started walking away with it. J.B. then started following respondent but the boy in the black jacket stopped J.B. and told J.B. to come back, so J.B. sat back down.

[¶22] J.B. testified that, four or five minutes later, the boy in the black jacket said that his friend was around the corner, and that J.B. should walk straight and make a right and his friend would be sitting on the porch of a house with J.B.'s phone waiting

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for J.B. Following these instructions, J.B. walked around the corner and nobody was there. J.B. then walked back to the park, and the group had left. The whole event lasted approximately 10 minutes.

[¶23] J.B. testified that his phone was a white Samsung Galaxy with a red back case which had a flap to cover the front. J.B. then identified several photographs of his phone and his " sim card," which he explained, was a card which was inserted into the phone and stored all his contacts and data. After the event, J.B. walked back to his grandmother's house and told his mom what had happened, and she called the police. His father told him to come with him into his father's vehicle and they drove around the block looking for the offenders. However, a couple of minutes later, his grandmother called his father saying that the police had arrived at the house; so they turned around and returned to the house. Back at the house, J.B. entered the police vehicle, while his parents remained at the house. J.B. and the officer were driving to the police station when the officer received a call from another officer that individuals matching J.B.'s description had been located.

[¶24] J.B. testified that they then drove to a location near 95th Street and Western Avenue, in front of a Potbelly's restaurant. When they arrived, J.B. remained in the police vehicle and the officer asked if he could identify the boys across the street. As he sat in the police vehicle, J.B. was approximately 20 feet away from the boys. Respondent was one of the boys whom J.B. identified, and J.B. identified respondent as one of the boys who had slapped J.B.

[¶25] Although J.B. did not specify how many boys were standing across the street, J.B. testified that he " identified [1] the boy in the black jacket and [2] the boy that was sitting on the slide with the girl." However, the boy who had been previously sitting on the slide with the girl was now " wearing the purple jacket that [J.B.] saw on the guy who took [his] phone initially." J.B. told the police that, during the offense, the boy on the slide " was on the side."

[¶26] The prosecutor then asked a question that was confusing: " And after you made the identification of the Minor Respondent and the other gentleman in the black jacket, where did you go?" Imbedded in this question is the assumption that J.B. had identified respondent as the boy on the slide, who was wearing the purple jacket during the identification but who had not been wearing it during the offense. However, the prosecutor had previously referred to the boy who had been wearing the purple jacket during the offense, as the " Minor Respondent." Also, although J.B. testified that he had identified both (1) the boy in the black jacket and (2) the boy who was previously sitting on the slide, J.B. had not specified in his testimony which one was respondent.

[¶27] J.B. testified that, after the show-up identification on the street, the police transported J.B. to a police station where the police returned his cell phone and SIM card. However, when he inserted the SIM card into the phone, there was a different password on the phone. J.B. was able to crack the password and then was able to access his contacts.

[¶28] On cross-examination, J.B. testified that when he first arrived for the show-up identification, he was a " little confused" because " they had all different clothes except for the boy in the jean jacket." At the identification, J.B. observed a boy who was now " in the purple jacket," but " that's not the guy who was really doing anything." Regarding the boy in the black jean jacket, J.B. testified: " I identified him, I was like, I think that's him who was

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there." The police later informed J.B. that they had found J.B.'s cell phone on the boy in the black jean jacket.

[¶29] The following exchange then took place:

" DEFENSE COUNSEL: So you never actually picked out my client at the scene of the Potbelly's is that right?
J.B.: No, not --
ASSISTANT STATE'S ATTORNEY (ASA): Objection. Withdraw[n].
DEFNSE COUNSEL: You didn't, correct?
J.B.: No.
DEFENSE COUNSEL: Okay. So it wasn't until you were back at the police station and the police had actually showed you a photo of my client and told you that the phone was found on his person that you identified him, is that correct?
J.B.: Yes."

[¶30] Defense counsel then asked, " at the scene of the Potbelly's, my client was not wearing the purple jacket, correct?" and J.B. responded " no." J.B.'s " no" to defense counsel's " not" question makes it seem as though respondent was wearing the purple jacket. But then defense counsel asked " this other gentleman *** was wearing the purple jacket, is that right?" and J.B. responded: " Yeah."

[¶31] Defense counsel asked, " you were able to solidly identify the boy in the jean jacket when you were in the car in front of the Potbelly's, is that right," and J.B. replied yes. Since J.B. had just testified on cross that he did not identify respondent at " the Potbelly's," then the boy in the black jacket could not have been respondent.

[¶32] On cross, he testified that he could not " remember the exact time" but the events occurred " between 2:30 and 5:00-ish" and " before sunset." However, on direct, J.B. had testified that these events occurred around 2:30 p.m. On cross, J.B. testified that, although the events occurred a year ago and he had not seen respondent since then, he could positively identify respondent in court. J.B. conceded that respondent was the only other black teenager in the courtroom besides J.B. and the only person sitting at the defense table besides defense counsel.

[¶33] On cross, J.B. testified that, at the show-up identification, he was alone in the police vehicle with one other officer and the other officers were outside. The officers had detained a group of four people on one side of the street and one person on the other side of the street. Respondent was with the group, and the one person by himself was the boy who was then wearing the purple jacket. Of the group of four people, J.B. was able to identify the boy in the black jean jacket.

[¶34] On redirect examination, the following exchange occurred:

" ASA: [J.B.], to be clear, when you identified the Minor Respondent on the scene at the Potbelly's, you identified him as having done what?
J.B.: I identified him as one of the main guys who was talking to me that whole time at the park.
ASA: All right. Were you confused in any way on that day?
J.B.: Yeah.
ASA: Why were you confused?
J.B.: They were all wearing different clothes and it just happened sort of fast.
ASA: Did you have a good opportunity to look at the Minor Respondent's face that day in the park?
J.B.: Not really."

The ASA then asked if there was anything unusual about respondent's face, and J.B. replied that he had " a square head."

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[¶35] The ASA then asked J.B. if he had any doubt, and the following exchange ...

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