People v. Jonathan C.B. , 386 Ill. App. 3d 735 ( 2008 )

Filed 11/18/08 NO. 4-06-1077
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: JONATHAN C.B., a Minor, ) Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
Petitioner-Appellee, ) Champaign County
v. ) No. 06JD127
JONATHAN C.B., )
Respondent-Appellant. ) Honorable
) Heidi Ladd,
) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
The trial court adjudicated respondent, Jonathan C.B.,
a delinquent minor, finding him guilty of criminal sexual assault
(720 ILCS 5/12-13(a)(1) (West 2004)) and attempt (robbery) (720
ILCS 5/8-4(a), 18-1 (West 2004)), and ordered him to be committed
to the Illinois Department of Juvenile Justice for an indetermi-
nate term to automatically terminate upon the first of the
passage of 15 years or respondent attaining the age of 21.
Respondent appeals, arguing (1) the State failed to prove him
guilty of criminal sexual assault beyond a reasonable doubt; (2)
his due-process rights were violated when he was shackled during
his bench trial; and (3) section 5-101(3) of the Juvenile Court
Act of 1987 (Act) (705 ILCS 405/5-101(3) (West 2004)), as applied
to juveniles charged with sex offenses, is unconstitutional
because it denies juveniles the right to a jury trial. We
affirm.
On August 24, 2006, the State filed a supplemental
petition for adjudication of wardship, alleging respondent was a
delinquent minor and charging him with criminal sexual assault
(720 ILCS 5/12-13(a)(1) (West 2004)) and attempt (robbery) (720
ILCS 5/8-4(a), 18-1 (West 2004)). On August 30, 2006, respon-
dent's bench trial began. At respondent's trial, the State
presented evidence that during the late evening on July 10, 2006,
and the early morning on July 11, 2006, respondent, who was 16
years old, and another minor, G.W., sexually assaulted and
attempted to rob 45-year-old C.H. Respondent's theory of the
case was that he and G.W. paid C.H. $40 for sex and then at-
tempted to retrieve their money.
C.H. testified that at approximately 11:30 p.m. on July
10, 2006, she left her home to make a phone call at her friend
Donnie Stewart's house. As she walked to Stewart's house, she
was approached by a tall boy and a shorter, younger boy. C.H.
identified respondent as the taller boy. She stated the shorter
boy commented to her "I have three for one." She told him he
should be home in bed and respondent told C.H. that the shorter
boy was his brother and she was not to speak to him that way.
C.H. testified the boys made her uncomfortable and she continued
on her way.
C.H. arrived at Stewart's house and used his phone.
She remained there approximately 10 minutes and then left to
return home. As she was walking home, she heard footsteps behind
her and saw respondent and a second boy. The second boy was not
the same boy from the earlier encounter and C.H. described him as
being short and stout. C.H. testified the boys called to her and
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respondent asked her if she wanted a drink. She stated he raised
the garage door on a nearby duplex using a button and asked her
to come toward the garage. C.H. declined and respondent let the
garage door down. He then suggested they go have a drink at the
back of the house. C.H. testified the shorter boy grabbed her
arm and pulled her behind the house. She was pushed to her knees
and felt respondent, who was behind her, put his penis in her
vagina. The shorter boy placed his penis in C.H.'s mouth. C.H.
stated she fought back to no avail and was screaming. During the
attack, her bra and shirt were torn.
C.H. testified she saw people across the street but no
one helped her. A boy walked by and asked what was happening.
C.H. stated the shorter boy became startled and let go of her.
She was able to get away but slipped and fell. C.H. then saw her
friend Keisha driving by and asked her for help. Keisha drove an
orange or gold vehicle that was "maybe like a truck." According
to C.H., respondent told Keisha not to let C.H. in Keisha's
vehicle because the police were coming and Keisha did not let her
in. Respondent presented testimony from Takesha Williams, who
stated she drove an orange Pontiac Aztec, which she described as
a "funny-made truck." She was acquainted with C.H. but denied
that C.H. approached her and asked for a ride on the date of the
alleged offenses. Instead, Williams asserted she was at her home
with her children.
C.H. testified that, after being denied entry into
Keisha's vehicle, she continued on and was able to get to a tree
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near the back of her house. At that point, respondent hit her on
the back of her head and knocked her down. C.H. stated she
always carried a pocketknife with her when she was out after dark
and respondent yelled at her to "drop the knife." Respondent
also put his foot on her left arm and held it down. The other
boy started stomping on C.H.'s head.
C.H. testified she saw a light and heard a male voice
say "let her go." The male voice belonged to a police officer.
C.H. testified an ambulance also arrived at the scene. She
received medical care for injuries to her arm. C.H. also re-
ported that her stomach hurt. She refused to go to the hospital.
Further, C.H. acknowledged that she did not tell police she had
been sexually assaulted but stated she did report the sexual
assault to paramedics.
Sarah Ramey, a paramedic employed by Arrow Carle
Ambulance, testified that, in the early morning hours of July 11,
2006, she and her partner were dispatched to C.H.'s location.
Ramey observed C.H., whom she described as hysterical, crying,
and having trouble breathing. C.H. appeared to be intimidated by
men on the scene and immediately reached for Ramey. C.H. stated
she wanted to go home but agreed to go into the ambulance so
Ramey could check her injuries. As Ramey helped C.H. to the
ambulance, C.H. whispered to Ramey that C.H. "was raped." Ramey
testified she observed abrasions on both of C.H.'s elbows and a
shoe print on her left arm. C.H. also had some tenderness in her
abdomen. Ramey stated she pleaded with C.H. to go to the hospi-
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tal but C.H. refused.
Destiny Nesbitt testified she was respondent's cousin
and was with him on the evening of July 10, 2006. At about 10:45
p.m., respondent asked for $40 because there were some girls in
the neighborhood and he needed money. Nesbitt gave respondent
the money and then went to sleep at approximately 11 p.m.
Shortly after 1 a.m., Nesbitt's boyfriend spoke with respondent
on the phone. During that conversation, respondent stated he had
"hit a hype," which she understood to mean he hit a drug addict.
Ultimately, Nesbitt learned the police were looking for respon-
dent.
Nesbitt testified she lived in a duplex at 2701A
Campbell Drive. A woman named Pooker lived on the other side of
the duplex, 2701B, with her five children, including G.W.. The
duplex had a garage, which Nesbitt also rented. She testified a
key was required to get inside the garage and that it always
stayed locked. On the night of the incident, Nesbitt learned
respondent was inside Pooker's residence and attempted to per-
suade him to leave the residence and talk with police.
Sheriff's deputy Andrew Good testified that, on July
10, 2006, he was working as a patrol officer on the midnight
shift. Around 1:15 a.m. he heard screaming and observed two
males standing over a female. The males were screaming at the
female and appeared to be striking her with their fists or hands.
Good heard the males saying "Give me the money," and "Where is
the bread." The female asked the males to stop hitting her and
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stated she did not have any money. Good also heard her tell the
males to "put the knife down."
Good testified he observed the female stand up and run
in his direction with the two males chasing her. He drew his
weapon, pointed his flashlight in their direction, identified
himself as a sheriff's deputy, and ordered them to stop. The two
males turned and ran in the opposite direction. Good observed
that the female was wearing a tank top that was torn, exposing
her bra strap. Her bra was also torn and her pants were soiled
in the crotch area. Good described her as hysterical and stated
it was hard to get information from her. At first, the female
stated she had been raped and the two males had a gun. Good saw
that her elbows and arms were scratched and her elbows were
bleeding.
Ultimately, the female was able to tell police where
her attackers came from. She described a duplex with a large
tree in the front yard. Police went to a residence at 2701
Campbell Drive but were unable to immediately make entry. They
tried contacting people inside the residence and eventually
someone opened the door and they were able to take custody of two
suspects, G.W. and respondent. A show-up identification was
conducted. Good heard respondent state that he and G.W. "just
went up to help her" but they "saw the police and *** ran."
Eventually, G.W. and respondent were arrested and transported to
a detention center. Good described G.W. as being "five five" and
weighing 160 pounds and respondent as being "five two" and
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weighing 115 pounds.
Sheriff's deputy Norman Meeker testified that on July
10, 2006, he was working the 11 p.m. to 7 a.m. shift and was
dispatched to the area of the incident in question to assist with
a fight. Later, the nature of the dispatch changed and he was
informed that it was an armed robbery. He was provided with
descriptions of the suspects and the direction they were travel-
ing. He began walking on Campbell Drive alongside houses. At
2701A Campbell, he heard someone talking on the phone, saying
"they better have their [$40]."
Meeker continued to watch the duplex and observed the
front door on one side open and close approximately five times.
Eventually, he made contact with Nesbitt from 2701A. She stated
she was getting her cousin, whom she identified as respondent.
Nesbitt stated she was supposed to be watching respondent and at
about 1:15 a.m. she received a phone call from him and he stated
"he just hit a hype." She stated respondent was on the other
side of the duplex. Nesbitt acknowledged she loaned respondent
$40 earlier in the evening and he stated he no longer had it but
would get it back for her.
Meeker and other officers attempted to make contact
with the people inside 2701B Campbell Drive by knocking and
pounding on the door and announced that they were the sheriff's
office. No one answered the knocking or pounding. Nesbitt was
able to speak with somebody inside the residence by phone and
Meeker asked her have them open the door. Eventually, around
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2:15 a.m., the door was opened. Two suspects were found in the
residence, G.W. and respondent. A show-up identification was
conducted and Meeker heard respondent say something about how
they "were just walking with [C.H.]." C.H. identified G.W. and
respondent and they were arrested.
Meeker testified he later interviewed respondent.
Respondent stated C.H. approached him earlier in the evening,
wanting to sell a television. He replied that he did not have
any money. They then discussed the possibility of C.H. doing
something else for money. Respondent stated he had a friend and
C.H. stated that was okay. Respondent called G.W. and obtained
$40 from his cousin. Respondent stated both he and G.W. had
sexual relations with C.H. behind 2701 Campbell Drive. Specifi-
cally, he stated he had oral sex with C.H. and G.W. had sexual
intercourse with her. Respondent reported that, during the acts,
C.H. fell over, cut herself, and her shirt and possibly her bra
became torn. C.H. then became upset and asked respondent and
G.W. to walk her home so her husband would not be mad. Respon-
dent stated that, as they were walking, C.H. "freaked out" and
began yelling and screaming. At one point, she also pulled out a
box cutter. The police then arrived on the scene, and he and
G.W. ran away.
Meeker testified respondent later changed his story.
First, he asserted he never actually engaged in any sexual
activity with C.H. because she fell over. Second, respondent
informed Meeker that he and G.W. began following C.H. as she left
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because they wanted to get their $40 back. He stated G.W. hit
C.H. and knocked her down in an attempt to get the money. At
that time, the police arrived. Respondent asserted he never hit
C.H. According to Meeker, respondent also reported that, while
he and G.W. were inside the residence at 2701B Campbell, they
discussed what they were going to tell police about what hap-
pened.
Curtis Apperson testified he was an investigator for
the sheriff's department and he and sheriff's deputy William
Davis interviewed C.H. Initially, the offense they were investi-
gating was an armed robbery. However, during the interview, C.H.
reported she had been raped and the nature of the investigation
changed. Apperson stated C.H. was emotional when she disclosed
the sexual assault. He and Davis collected the clothing she had
been wearing during the offenses and took her to the hospital to
obtain a rape kit. Apperson asked C.H. why she did not report
the sexual assault earlier to police. She explained that she had
been the victim of a rape before but police did not believe her.
She felt her claims would not be investigated. C.H. did report
to Apperson and Davis that she told a female paramedic or
firefighter that she was raped.
Apperson and Davis transported C.H. to the hospital,
where they continued to interview her. Apperson stated C.H.'s
emotions were up and down. At times, she was calm, but at other
times she became very emotional and was crying and lowering her
head.
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Apperson testified C.H. reported $50 was taken from her
during the incident. He also stated she reported that, prior to
being attacked, she had been to two places, Antoine's house and
Donnie's house. However, Apperson stated it was difficult to
talk to C.H. because of her emotions so he was "not exactly
clear" where C.H. stated she had been prior to when the offenses
allegedly occurred. Davis testified C.H. reported that she was
at Antoine's house before the incident in question and that she
had a birthday drink. She did not mention anyone named Donnie
Stewart to Davis. Also, he stated C.H. told him she was ini-
tially approached by three individuals rather than two.
Mary Sexton testified she was a registered nurse and
performed a sexual assault kit on C.H. C.H. reported to Sexton
that she had been walking home from a friend's house and the
friend had not been home. She was raped by two young males and
stated she had seen a small gun.
Respondent testified he was 16 years old. On July 10
and 11, 2006, he was staying at the home of his cousin, Destiny
Nesbitt. G.W. lived next door to Nesbitt. Between midnight and
12:30 a.m. on July 11, 2006, C.H. approached respondent and
G.W.'s little brother and asked them if they wanted to buy a
television. Respondent replied that he did not. C.H. then asked
respondent if he had any money or if he sold drugs. Respondent
replied negatively to both questions. C.H. asked respondent if
she could do anything for some money. Respondent understood that
C.H. was referring to some type sexual activity. He testified he
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called G.W. and C.H. offered to have sex with both of them for
$20 each.
Respondent testified he borrowed $40 from Nesbitt. He
gave G.W. $20 and G.W. and C.H. went behind the duplex and
engaged in sexual intercourse. After 5 or 10 minutes, G.W. came
out from behind the house and handed respondent a condom.
Respondent then went behind the house and paid C.H. $20. C.H.
performed oral sex on respondent and then the two engaged in
vaginal sexual intercourse. Respondent testified that as he
engaged in vaginal intercourse with C.H., he grabbed her shoul-
ders and her bra strap tore. She also slipped and scraped her
elbow. After slipping, C.H. got up and was crying. She asked
respondent to walk her home because her boyfriend was going to
beat her. Respondent agreed to walk her home and stated he did
not get a chance to finish having sex with C.H.
Respondent testified that, as he and G.W. were walking
C.H. home, they decided to get their money back from her. He
stated, at that time, C.H. drew a knife and he told her to put it
down. After C.H. put the knife away, G.W. shoved her and knocked
her down. Respondent stepped on C.H.'s arm so that she would not
go for her knife. G.W. searched C.H. but did not find any money.
He asked her where her money was. Police appeared on the scene,
flashed lights on them, and told them to stop. Respondent and
G.W. ran to G.W.'s house and went inside. Police arrived at
G.W.'s house 15 to 20 minutes later. Approximately five minutes
later, G.W. opened the door and they were taken into custody.
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After hearing all the evidence and the parties' argu-
ments, the trial court found respondent guilty of both charged
offenses and adjudicated him delinquent. On November 13, 2006,
the court ordered him to be committed to the Illinois Department
of Juvenile Justice for an indeterminate term to automatically
terminate in 15 years or upon respondent attaining the age of 21,
whichever came first.
This appeal followed.
On appeal, respondent first argues the State failed to
prove him guilty of criminal sexual assault beyond a reasonable
doubt. He maintains C.H. was not a credible witness and the
trial court's judgment as to her credibility was not reasonable
in light of the record.
"In reviewing the sufficiency of the evidence, the
question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reason-
able doubt." (Emphasis in original.) People v. Jordan, 218 Ill.
2d 255, 269, 843 N.E.2d 870, 879 (2006). A reviewing court's
function is not to retry the defendant and it should not substi-
tute its judgment for that of the trier of fact. People v.
Sutherland, 223 Ill. 2d 187, 242, 860 N.E.2d 178, 217 (2006).
"The weight to be given the witnesses' testimony, the credibility
of the witnesses, resolution of inconsistencies and conflicts in
the evidence, and reasonable inferences to be drawn from the
testimony are the responsibility of the trier of fact." Suther-
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land, 223 Ill. 2d at 242, 860 N.E.2d at 217. A conviction must
be reversed "where the evidence is so unreasonable, improbable,
or unsatisfactory as to justify a reasonable doubt of [the]
defendant's guilt." People v. Smith, 185 Ill. 2d 532, 542, 708
N.E.2d 365, 370 (1999).
A person commits criminal sexual assault if he or she
performs an act of sexual penetration by the use of force or
threat of force. 720 ILCS 5/12-13(a)(1) (West 2004).
Here, C.H. testified she was grabbed and taken behind a
duplex where G.W. and respondent forced her to engage in sexual
acts. She stated she was screaming and fought back but was
overpowered. C.H. specifically testified respondent inserted his
penis into her vagina. The record reflects C.H. reported being
"raped" immediately to paramedic Sarah Ramey and sheriff's deputy
Andrew Good. She was described by Ramey and police as being very
emotional to the point of being hysterical. Also, the trial
court commented that C.H. became similarly emotional when provid-
ing testimony on the subject of the sexual assault.
Respondent points out C.H. provided inconsistent
statements about where she went prior to the incident in ques-
tion, how many boys she saw during an initial encounter, the
opening and closing of the duplex's garage door, an encounter
with her friend "Keisha" during the attack, and whether the boys
had a gun. Here, the trial court noted the case came down to
issues of credibility and that inconsistencies were present in
both C.H.'s testimony and respondent's testimony. The court's
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oral ruling in the case shows it thoroughly considered all of the
evidence presented, including the inconsistencies in C.H.'s
testimony. In the end, it found C.H. more credible than respon-
dent. That finding is not so unreasonable, improbable, or
unsatisfactory as to justify a reasonable doubt of respondent's
guilt.
Although C.H.'s testimony contained inconsistencies,
they did not concern the essential facts of the sexual assault or
attempted robbery. Moreover, respondent's own statements were
inconsistent and evolved over time, reflecting negatively on his
own credibility. He made several different statements, regarding
the sexual acts he engaged in with C.H. After initially being
taken into custody, police heard respondent state he was "just
walking with [C.H.]" and that he was trying to help her. In his
first statement to police, he stated he and C.H. engaged in oral
sex but later changed his story and said they never engaged in
any sexual acts. Finally, at trial, respondent testified he
engaged in both oral and vaginal sex with C.H.
As the trial court pointed out, at trial, respondent
asserted he met C.H. between midnight and 12:30 a.m. on July 11,
2006, and thereafter obtained $40 from his cousin, Destiny
Nesbitt, to pay C.H. for sexual acts she agreed to perform.
However, Nesbitt testified she gave respondent $40 at approxi-
mately 10:45 p.m. on July 10, 2006, at least 1 hour and 15
minutes before respondent asserted he encountered C.H.
Additionally, respondent's version of the acts sur-
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rounding the attempted robbery was drastically different from the
acts witnessed by sheriff's deputy Good. Respondent asserted
G.W. shoved and knocked C.H. down and he only stepped on C.H.'s
arm so that she could not go for her knife. C.H. screamed for
help twice, and G.W. searched her and asked where the money was.
At that point, police arrived on the scene and he and G.W. fled.
Good testified, however, that he heard screaming and
observed two males standing over a female. The males were
screaming at the female and appeared to be striking her with
their fists or hands. The female asked the males to stop hitting
her and stated she did not have any money. The female then stood
up and ran in Good's direction with the two males chasing her.
When Good made his presence known, the males ran in the opposite
direction.
Respondent essentially asks this court to reweigh the
evidence, which is not the function of a reviewing court. The
record shows the trial court thoroughly considered the evidence
and made a well-reasoned determination as to credibility. The
evidence was sufficient to find respondent guilty of criminal
sexual assault.
On appeal, respondent next argues the trial court
violated his fourteenth amendment due-process guarantees by
having him shackled without an individualized determination of
necessity.
In People v. Boose, 66 Ill. 2d 261, 265, 362 N.E.2d
303, 305 (1977), the supreme court held that the shackling of a
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defendant is disfavored because it (1) tends to prejudice the
jury, (2) restricts the defendant's ability to assist his counsel
during trial, and (3) offends the dignity of the judicial pro-
cess. Nevertheless, a defendant may be shackled where a manifest
need for restraints is shown. Boose, 66 Ill. 2d at 265-66, 362
N.E.2d at 305. Specifically, "[a] defendant may be shackled when
there is reason to believe that he may try to escape or that he
may pose a threat to the safety of people in the courtroom or if
it is necessary to maintain order during the trial." Boose, 66
Ill. 2d at 266, 362 N.E.2d at 305.
Whether to restrain the defendant is within the trial
court's discretion and its decision will not be reversed absent
an abuse of that discretion. Boose, 66 Ill. 2d at 266-67, 362
N.E.2d at 305-06. The court must hold a hearing outside the
presence of the jury, allowing the defendant's attorney the
opportunity to argue why the defendant should not be shackled.
Boose, 66 Ill. 2d at 266, 362 N.E.2d at 305. If it orders the
defendant to remain shackled, the court must also state the
reasons for its decision on the record. Boose, 66 Ill. 2d at
266, 362 N.E.2d at 305. Boose applies to both bench and jury
trials. People v. Strickland, 363 Ill. App. 3d 598, 603, 843
N.E.2d 897, 901 (2006).
Here, only one small reference to respondent's shack-
ling was made in the record. When respondent was called to
testify on his own behalf the trial court stated as follows:
"Okay. You may step up. You may take off the shackles. Sir, you
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may go ahead and approach the bench. Raise your right hand."
Respondent was then sworn in and proceeded to testify. The
record contains no further mention of respondent's shackling and
he made no objection, either during his trial or in a posttrial
motion, to being shackled.
A defendant who fails to object to shackling at trial
or in a posttrial motion forfeits review of the issue on appeal.
People v. Barney, 363 Ill. App. 3d 590, 593, 844 N.E.2d 80, 83
(2006). However, pursuant to the plain-error doctrine, a review-
ing court may consider otherwise forfeited issues if the evidence
was closely balanced or the error was of such magnitude that the
defendant was denied a substantial right and a fair trial.
Barney, 363 Ill. App. 3d at 593-94, 844 N.E.2d at 84.
"[P]lain error does not automatically occur when
shackles are used without a Boose hearing." Barney, 363 Ill.
App. 3d at 596, 844 N.E.2d at 86. Instead, "[w]ithout objecting
and preserving the issue for review, the defendant must show the
evidence was closely balanced or 'the error was so serious it
affected the fairness of his trial and challenged the judicial
process's integrity.'" Barney, 363 Ill. App. 3d at 597-98, 844
N.E.2d at 87, quoting People v. Thompson, 359 Ill. App. 3d 947,
951, 835 N.E.2d 933, 936 (2005).
In Strickland, 363 Ill. App. 3d at 602, 843 N.E.2d at
901, this court considered whether the defendant was denied a
fair trial because the trial court ordered one of his hands to be
handcuffed to a table during his jury trial. The defendant made
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no objection to the court's order but argued the handcuffing
resulted in plain error. Strickland, 363 Ill. App. 3d at 602,
843 N.E.2d at 901. We declined to reverse the defendant's
conviction under the plain-error doctrine. Strickland, 363 Ill.
App. 3d at 604, 843 N.E.2d at 903.
In part, we relied on People v. Hyche, 77 Ill. 2d 229,
240-41, 396 N.E.2d 6, 12 (1979), wherein the supreme court
considered whether a defendant's conviction warranted reversal
when he appeared before a jury in handcuffs but failed to make an
objection. There, the court concluded the defendant had waived
any error by failing to object and affirmed the trial court's
judgment. Hyche, 77 Ill. 2d at 241, 396 N.E.2d at 12. In
Strickland, 363 Ill. App. 3d at 604-05, 843 N.E.2d at 903, we
noted the Hyche decision indicated it was "the State's compelling
the defendant to wear restraints before the jury that create[d]
the constitutional violation." We reasoned that "when a defen-
dant fails to object to wearing restraints, the presence of
compulsion is negated, and a constitutional violation has not
been established." Strickland, 363 Ill. App. 3d at 605, 843
N.E.2d at 903.
Here, respondent made no objection to his shackling and
the record does not indicate the trial court was even aware that
he was shackled until he was called to testify. Pursuant to
Strickland, reversal of respondent's convictions is not warranted
by the plain-error doctrine.
Also, respondent failed to satisfy either prong of the
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plain-error doctrine. First, the evidence in his case was not
closely balanced. Respondent was charged with criminal sexual
assault and attempted robbery. Although the testimony regarding
the criminal sexual assault came down to a credibility determina-
tion between respondent and C.H., the evidence presented as a
whole was not so close as to warrant application of the plain-
error doctrine. During his testimony, respondent essentially
admitted his part in the attempted robbery, acknowledging that he
and G.W. agreed to take money from C.H. and that he restrained
C.H. while G.W. searched her for money. He made similar admis-
sions in his first statements to police. Further, as discussed,
respondent's version of the events surrounding the criminal-
sexual-assault charge contained many inconsistencies. The dissent
insists the evidence was closely balanced but only considers the
evidence in connection with the criminal sexual assault.
Respondent has also failed to show the error was so
serious it affected the fairness of his trial and challenged the
judicial process's integrity. As stated, the record does not
show the trial court was even aware that respondent was shackled
until he was called to testify. If the court had not suggested
the shackles be taken off, the record would show nothing as to
this issue. The court ordered the shackles removed and the
record does not reflect respondent had to continue wearing them
after he testified. The record does not show the court was
prejudiced by respondent's shackles, they restricted his ability
to assist his counsel, or the dignity of the judicial process was
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offended. Additionally, more than sufficient evidence of respon-
dent's guilty was presented at his trial.
Finally, we note respondent argues "shackling a minor
so offends the basic notions of justice that trial courts should
have a sua sponte duty to intervene." We find no authority for
the position and respondent cites none. Also, again, the record
fails to show the trial court was aware of the shackles prior to
when respondent was called to testify and may not have been in a
position to know it needed to intervene.
On appeal, respondent last argues section 5-101(3) of
the Act (705 ILCS 405/5-101(3) (West 2004)), as applied to
juveniles charged with sex offenses, is unconstitutional because
it denies juveniles the right to a trial by jury. Specifically,
he argues section 5-101(3) of the Act violates article I, section
8, of the Illinois Constitution of 1970 (Ill. Const. 1970, art.
I, §8) and his state and federal constitutional rights to due
process and equal protection.
"[A]ll statutes are presumed constitutional and *** the
party challenging a statute's validity bears the burden of
demonstrating a clear constitutional violation." In re Lakisha
M., 227 Ill. 2d 259, 263, 882 N.E.2d 570, 573 (2008). If reason-
ably possible, a court must construe a statute so as to affirm
its constitutionality. Lakisha M., 227 Ill. 2d at 263, 882
N.E.2d at 573. "[R]eview of a statute's constitutionality is de
novo." Lakisha M., 227 Ill. 2d at 263, 882 N.E.2d at 573.
Section 5-101(3) of the Act (705 ILCS 405/5-101(3)
- 20 -
(West 2004)) provides that "[m]inors shall not have the right to
a jury trial unless specifically provided by" the Act.
Respondent first argues section 5-101(3) is unconstitu-
tional pursuant to article I, section 8, of the Illinois Consti-
tution (Ill. Const. 1970, art. I, §8), which provides as follows:
"In criminal prosecutions, the accused
shall have the right *** to have a speedy
public trial by an impartial jury of the
county in which the offense is alleged to
have been committed."
Respondent maintains juveniles are entitled to a jury trial under
the Illinois Constitution because juveniles charged with sex
offenses are subject to criminal prosecution, resulting in a
"conviction" upon a finding of guilt. He relies on the supreme
court's statements in In re J.W., 204 Ill. 2d 50, 787 N.E.2d 747(2003), equating the term "convicted" with "adjudicated."
Additionally, respondent notes a shift in purpose and policy of
the Act from rehabilitation to protecting the public and holding
juvenile offenders accountable.
The supreme court has previously held that juveniles
have no right to a jury trial under the Illinois Constitution.
See In re Fucini, 44 Ill. 2d 305, 310, 255 N.E.2d 380, 382
(1970); In re Presley, 47 Ill. 2d 50, 55, 264 N.E.2d 177, 179
(1970). In In re G.O., 191 Ill. 2d 37, 43, 727 N.E.2d 1003, 1007
(2000), the court rejected arguments that the denial of a jury
trial to a juvenile charged with first-degree murder violated
- 21 -
equal protection or due process. We note, although respondent
relies heavily on Justice Heiple's dissenting opinion in that
case, it is the G.O. majority's opinion which is precedential.
As asserted by the dissent, these cases do not address
respondent's specific arguments. However, they have been cited
by the parties and the dissent in G.O., relied upon by respon-
dent, and we note them here by way of background.
To support his position in this case, respondent relies
on In re A.G., 195 Ill. 2d 313, 746 N.E.2d 732 (2001). There,
the supreme court held that "compliance with the [Supreme Court]
Rule 604(d) certificate requirement [(210 Ill. 2d R. 604(d))]
[was] required in juvenile proceedings." A.G., 195 Ill. 2d at
322, 746 N.E.2d at 737-38. In reaching that decision, the court
made several observations about the Act. It noted the Act had
"been significantly amended" in 1999 and thereafter contained "a
purpose and policy section which represent[ed] a fundamental
shift from the singular goal of rehabilitation to include the
overriding concerns of protecting the public and holding juvenile
offenders accountable for violations of the law." A.G., 195 Ill.
2d at 317, 746 N.E.2d at 735. Importantly, however, the court
acknowledged proceedings under the Act were "still not criminal
in nature and [were] to be administered in a spirit of humane
concern for, and to promote the welfare of, the minor." A.G.,
195 Ill. 2d at 317, 746 N.E.2d at 735.
Respondent next relies upon J.W., 204 Ill. 2d 50, 787
N.E. 2d 747, which he argues makes it "all but explicit that
- 22 -
juveniles are subject to full criminal prosecutions in an ad-
versarial system." That case dealt with the constitutionality of
requiring a juvenile to register as a sex offender for his
natural life. J.W., 204 Ill. 2d at 62, 787 N.E.2d at 754.
However, J.W. dealt specifically and only with the Sex Offender
Registration Act (Registration Act), which defined a juvenile sex
offender as follows:
"'"Juvenile sex offender" means any
person who is adjudicated a juvenile delin-
quent as the result of the commission of or
attempt to commit a violation set forth in
item (B), (C), or (C-5) of this Section or a
violation of any substantially similar fed-
eral, sister state, or foreign country law.
For purposes of this Section, "convicted"
shall have the same meaning as
"adjudicated."' 730 ILCS 150/2(A-5) (West
2000)." J.W., 204 Ill. 2d at 63, 787 N.E.2d
at 755.
The supreme court's holding in J.W. is limited to
application of the Registration Act, which expressly stated, for
purposes of the Registration Act, "convicted" and "adjudicated"
had the same meaning. As the State points out, J.W. does not
stand for the broader proposition that all juveniles charged with
sex offenses are subject to criminal prosecutions within the
meaning of article I, section 8, of the Illinois Constitution or
- 23 -
that the term "convicted" always holds the same meaning as
"adjudicated."
More recently, in People v. Taylor, 221 Ill. 2d 157,
182, 850 N.E.2d 134, 147 (2006), the supreme court determined
juvenile adjudications should not be considered a conviction for
purposes of the escape statute. In reaching that decision, the
court reasserted that bench trials are "all that is constitution-
ally required in juvenile delinquency proceedings" because a
juvenile proceeding is not considered a criminal prosecution.
Taylor, 221 Ill. 2d at 168, 850 N.E.2d at 140. Additionally, it
stated as follows:
"The policy that seeks to hold juveniles
accountable for their actions and to protect
the public does not negate the concept that
rehabilitation remains a more important con-
sideration in the juvenile justice system
than in the criminal justice system and that
there are still significant differences be-
tween the two, indicating that 'the ideal of
separate treatment of children is still worth
pursuing.'" Taylor, 221 Ill. 2d at 170, 850
N.E.2d at 141, quoting McKeiver v. Pennsyl-
vania, 403 U.S. 528, 546 n.6, 29 L. Ed. 2d
647, 661 n.6, 91 S. Ct. 1976, 1986 n.6
(1971).
Although the 1999 amendments altered the policy and
- 24 -
purpose behind the Act, rehabilitation of juvenile offenders
remains an important consideration, more important than in
criminal proceedings. Additionally, the holding in J.W. was
specific to the statute before it and does not broadly stand for
the proposition that a juvenile adjudication is the same as a
criminal conviction. Respondent has failed to meet his burden of
establishing a constitutional violation of article I, section 8,
of the Illinois Constitution.
Respondent next argues section 5-101(3) of the Act, as
applied to juveniles charged with sex offenses, violates his due-
process right to a trial under the state and federal constitu-
tions, which he maintains "grant persons the right to a trial by
jury when *** charged with a serious criminal offense." See U.S.
Const., art. III, §2; Ill. Const. 1970, art. I, §13. More
specifically, he contends his due-process rights entitle him to a
jury trial because (1) the purpose of the Act is now to protect
the public instead of to rehabilitate the juvenile and (2) a
juvenile could be indefinitely and involuntarily committed as a
sexually violent person based on nothing more than proof of his
original bench adjudication of delinquency.
First, as stated, although a shift in purpose and
policy of the Act did occur after the 1999 amendments, Taylor
makes clear that rehabilitation remains an important purpose and
policy behind the Act, more so than in the criminal justice
system. We reject respondent's contention that "the purpose of
the Act is now to protect the public instead of rehabilitate the
- 25 -
juvenile." That may be one purpose of the Act but it is not the
Act's sole purpose.
Second, respondent's argument that an adjudication of
delinquency satisfies the requirements of the Sexually Violent
Persons Commitment Act (Commitment Act) (725 ILCS 207/1 through
99 (West 2004)), exposing a juvenile to indefinite and involun-
tary commitment, is also without merit. Three criteria must be
alleged and established before a person may be committed as a
sexually violent person under the Commitment Act: (1) the person
must have been found delinquent for a sexually violent offense
(725 ILCS 207/15(b)(1)(B) (West 2004)), (2) the person must
suffer from a mental disorder (725 ILCS 207/15(b)(4) (West
2004)), and (3) the person must be dangerous to others because
his or her mental disorder creates a substantial probability that
he or she will engage in acts of sexual violence (725 ILCS
207/15(b)(5) (West 2004)).
Respondent argues an adjudication of delinquency for a
sexually violent offense is sufficient to establish all three
elements under the Commitment Act. To support his position,
respondent cites portions of the dissenting opinion in In re
Detention of Samuelson, 189 Ill. 2d 548, 568, 727 N.E.2d 228, 239
(2000) (Heiple J., dissenting) ("[T]he State's expert in this
case was able to diagnose [the] defendant as having a 'mental
disorder' *** solely by virtue of [the] defendant's having
committed the acts which led to his criminal conviction and
punishment" (emphasis omitted)). We find the dissenting opinion
- 26 -
in Samuelson specific to the facts of that particular case.
Also, it is not precedential. It remains that the Commitment Act
requires three separate criteria to be established.
Additionally, respondent has failed to allege facts
showing he could be subject to commitment as a sexually violent
person. His delinquency adjudication for a qualifying offense is
insufficient, alone, to satisfy the Commitment Act's require-
ments.
Finally, on appeal, respondent argues juveniles charged
with sex offenses have an equal-protection right, under the state
and federal constitutions, to a trial by jury. See U.S. Const.
amend. XIV; Ill. Const. 1970, art. I, §2. "Equal protection
guarantees that similarly situated individuals will be treated in
a similar fashion, unless the government can demonstrate an
appropriate reason to treat them differently." People v.
Whitfield, 228 Ill. 2d 502, 512, 888 N.E.2d 1166, 1172 (2007).
"In cases where fundamental rights are not at issue, we employ
so-called rational basis scrutiny and consider whether the
challenged classification bears a rational relationship to a
legitimate governmental purpose." Whitfield, 228 Ill. 2d at 512,
888 N.E.2d at 1172.
Respondent argues juveniles charged with sex offenses
are similarly situated to other juvenile offenders who are
subject to extended juvenile jurisdiction (EJJ) and are accorded
the right to a jury trial (705 ILCS 405/5-810(3) (West 2004)), as
well as adult offenders charged with sex offenses. He maintains
- 27 -
no rational basis exists for treating those similarly situated
groups differently. We agree with the State and find respondent
has failed to show he is similarly situated to juveniles subject
to EJJ proceedings or adult offenders charged with sex offenses.
Again, respondent supports his contention with the
argument that the purpose and policy of the Act, as it relates to
juvenile sex offenders, is the protection of society rather than
rehabilitation of the juvenile offender. As already discussed,
we reject this contention and find, while the policies and
purposes of the Act changed after the 1999 amendments to include
the protection of society and holding juvenile offenders account-
able for their crimes, rehabilitation remains an important
purpose and policy of the Act.
Next, respondent argues he is similarly situated to
juveniles subject to EJJ and adult sex offenders because a
juvenile sex offender faces the possibility of future commitment
as a sexually violent person pursuant to the Commitment Act.
Juveniles subject to EJJ face sentencing as juveniles and, like
adult criminal offenders, an adult criminal sentence that is
"stayed on the condition that the offender not violate the
provisions of the juvenile sentence." 705 ILCS 405/5-810(4)
(West 2004).
Here, respondent does not face the possibility of an
adult criminal sentence and is therefore not similarly situated
to juveniles subject to EJJ proceedings or adult offenders.
Further, he has failed to show that he is or could be subject to
- 28 -
commitment as a sexually violent person under the Commitment Act.
As the State points out, "[c]ommitment under the [Commitment Act]
can result only after a successful separate action by the State,
requiring proof of additional elements not common to all sex
offenders, whether juvenile or adult." Respondent failed to meet
his burden of proving section 5-101(3) of the Act violated his
equal-protection rights.
Here, the record shows the State presented sufficient
evidence to prove respondent committed the offense of criminal
sexual assault beyond a reasonable doubt and that his due-process
rights were not violated when he was shackled during his bench
trial. Additionally, respondent has failed to establish section
5-101(3) of the Act, as applied to juveniles charged with sex
offenses, is unconstitutional.
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
MYERSCOUGH, J., concurs.
APPLETON, P.J., dissents.
- 29 -
PRESIDING JUSTICE APPLETON, dissenting:
I respectfully dissent from the majority's decision. I
would reverse the trial court's judgment, and remand this case
for a new trial, for two reasons. First, the evidence was
closely balanced, and failing to hold a Boose hearing was plain
error. Second, section 5-101(3) of the Act (705 ILCS 405/5-
101(3) (West 2004)), as applied to juveniles charged with sex
offenses, is unconstitutional because it denies juveniles the
right to a jury trial.
A. The Unnecessary Shackling of Respondent
The supreme court has said that requiring a defendant
to wear shackles during trial without a strong necessity for the
shackling jeopardizes the value and protection of the presumption
of innocence. In re Staley, 67 Ill. 2d 33, 37, 364 N.E.2d 72, 73
(1977). If the only reason a defendant is in shackles is the
alleged offense for which he is on trial, he justifiably would
feel skeptical if the court happened to mention to him that he
was presumed innocent until proved guilty. Any sensible person
in his position would regard such a statement as pro forma
hypocrisy.
"Every accused person *** enters upon his trial clothed
with the presumption of innocence." Yee Hem v. United States,
268 U.S. 178, 184, 69 L. Ed. 904, 906, 45 S. Ct. 470, 472 (1925).
But in the circuit court of Champaign County, defendants wear
chains as a seeming matter of course. See Barney, 363 Ill. App.
3d at 592, 844 N.E.2d at 83 (appeal from Champaign County, in
- 30 -
which we discussed the requirements of Boose). Like the defense
counsel in Barney, defense counsel in this case never objected.
We held in Barney, 363 Ill. App. 3d at 596, 844 N.E.2d at 86,
that "plain error does not automatically occur when shackles are
used without a Boose hearing." It does not follow that unneces-
sary shackling can never be plain error.
The supreme court has held that a defendant can prove
plain error in two alternative ways:
"First, where the evidence in a case is so
closely balanced that the jury's guilty ver-
dict may have resulted from the error and not
the evidence, a reviewing court may consider
a forfeited error in order to preclude an
argument that an innocent person was wrongly
convicted. [Citation.] Second, where the
error is so serious that the defendant was
denied a substantial right, and thus a fair
trial, a reviewing court may consider a for-
feited error in order to preserve the integ-
rity of the judicial process. [Citations.]
This so-called disjunctive test does not
offer two divergent interpretations of plain
error, but instead two different ways to
ensure the same thing--namely, a fair trial."
People v. Herron, 215 Ill. 2d 167, 178-79,
830 N.E.2d 467, 475 (2005).
- 31 -
Before deciding whether plain error occurred, it is
logical to consider whether any error at all occurred. People v.
Hudson, 228 Ill. 2d 181, 191, 886 N.E.2d 964, 971 (2008). (I
note that at oral argument, counsel for the State asserted that
the record did not disclose that the trial court was aware
respondent was shackled during the proceedings prior to his
testimony. Whether or not skirting at the counsel table existed,
given that the trial court directed that the shackles be removed
from respondent during his testimony from the witness stand would
seem to imply that the trial court was in a position to observe
respondent's shackling prior to that time.) The majority cites
decisions holding that unless a defendant objected to being
shackled, the shackling violated no constitutional right because
the State never compelled the defendant to be shackled. Hyche,
77 Ill. 2d at 241, 396 N.E.2d at 12; Strickland, 363 Ill. App. 3d
at 605, 843 N.E.2d at 903. It is beyond belief that just because
defense counsel fails to object, the defendant is wearing shack-
les by his own free choice. The more likely explanation is that
defense counsel assumed an objection would be futile because
routine shackling is the modus operandi. In any event, the
supreme court apparently no longer subscribes to the rather
facile no-objection, no-compulsion rationale of Hyche. In People
v. Allen, 222 Ill. 2d 340, 353-54, 856 N.E.2d 349, 357 (2006),
the supreme court held that even though the defendant never
objected to wearing an electric stun belt during trial, "the
failure to conduct a Boose hearing *** [was] an error," a "due[-]
- 32 -
process violation" (Allen, 222 Ill. 2d at 353, 856 N.E.2d at
356). Therefore, I infer that the failure to object to shackles
does not negate the error of failing to hold a Boose hearing.
The supreme court concluded in Allen, 222 Ill. 2d at
353, 856 N.E.2d at 356, that although the defendant had "prove[d]
a due[-]process violation which amounted to error by showing that
he was required to wear an electronic stun belt at trial without
the court having first determined that it was necessary," the
defendant had failed to establish "'that the error was so serious
that it affected the fairness of [his] trial and challenged the
integrity of the judicial process'" (i.e., the second of the two
alternative ways of establishing plain error, as described by
Herron). Allen, 222 Ill. 2d at 353, 856 N.E.2d at 356. The
supreme court added: "Here, [the] defendant cannot, and does
not, claim that the evidence presented was closely balanced"
(referring to the other way of establishing plain error). Allen,
222 Ill. 2d at 353, 856 N.E.2d at 357.
Likewise, in the appeal before us, the majority de-
clares that "the evidence in [respondent's] case was not closely
balanced." Slip op. at 19. The majority reasons as follows:
"Respondent was charged with criminal sexual
assault and attempted robbery. Although the
testimony regarding the criminal sexual as-
sault came down to a credibility determina-
tion between respondent and C.H., the evi-
dence presented as a whole was not so close
- 33 -
as to warrant application of the plain-error
doctrine. During his testimony, respondent
essentially admitted his part in the
attempted robbery, acknowledging that he and
G.W. agreed to take money from C.H. and that
he restrained C.H. while G.W. searched her
for money. He made similar admissions in his
first statements to police. Further, as
discussed, respondent's version of the events
surrounding the criminal-sexual-assault
charge contained many inconsistencies." Slip
op. at 19.
Thus, even though "the criminal sexual assault came down to a
credibility determination between respondent and C.H." (slip op.
at 19), the majority did not find the evidence to be closely
balanced, because (1) respondent admitted he attempted to rob
C.H. and (2) his version of what happened "contained many incon-
sistencies" (slip op. at 19). As for the first reason, respon-
dent's attempting to rob C.H. did not prove he sexually assaulted
her. His attempting to rob her could prove, however, that she
had sold sex to the two boys and they wanted their money back. A
deputy sheriff, Andrew Good, testified that sometime around 1:15
a.m. on July 11, 2006, he was on patrol when he heard people
screaming on Campbell Street. As he approached, he saw two males
standing over a female. While striking her with their hands, the
males were screaming at her, "Give me the money[!]" and "Where is
- 34 -
the bread[?]" In his own testimony, respondent corroborated that
is precisely what his companion, G.W., said to C.H.: "Where is
the money? Where is the bread?" Note the repetition of the
definite article in both Good's and respondent's testimony: the
money and the bread. In their confrontation with C.H., the two
boys were referring not to money in general but to a specific
res--namely, the cash they testified they had paid C.H. for her
sexual services, or so a trier of fact could reasonably infer.
The second reason the majority gives for finding the
evidence not to be closely balanced is just as unconvincing as
the first. The majority says that respondent's testimony "con-
tained many inconsistencies." Slip op. at 19. That is true, but
in the majority's assessment of the evidence, the inconsistencies
in C.H.'s testimony and statements apparently do not count. I
will not go so far as to say that the evidence is insufficient,
as a matter of law, to sustain the conviction of criminal sexual
assault, but C.H.'s credibility could fairly be questioned. She
contradicted herself repeatedly, and her testimony was irrecon-
cilable with certain physical realities of the crime scene. To
fasten on the inconsistencies in respondent's testimony and
ignore the problems in C.H.'s testimony does not constitute an
imbalance in the testimony, but only a determination that under
our standard of review, we cannot second-guess the credibility
determinations of the trier of fact. We cannot decide whether
the evidence was closely balanced without objectively weighing
the evidence on both sides.
- 35 -
Given respondent's testimony that C.H. approached him
on the street around midnight on July 11, 2006, and offered to
have sex with him for payment, one naturally would be interested
in knowing where C.H. was going at that hour and where she had
been. This is not to suggest that anyone strolling the streets
at midnight should be suspected of prostitution, but respondent
alleged that C.H. approached him and after offering to sell him a
television, offered to "do anything" for money; therefore, one
might have expected the State to counter his allegation with
credible and definite corroborating evidence that C.H. was, to
the contrary, out on some legitimate errand. Such evidence was
not forthcoming, and C.H.'s statements were inconsistent on this
question. C.H. told a police officer, Curt Apperson, that she
was on her way home from visiting a friend named Antoine when the
two boys sexually assaulted her. Later, at the hospital, she
told Apperson a different story: that she had been to the house
of a friend named Donnie. She told another police officer,
William Davis, that she had gone to Antoine's house, and she
never mentioned Donnie to him. The State called neither Antoine
nor Donnie. Apparently, Donnie's last name is Stewart. The
record does not seem to reveal Antoine's last name.
A registered nurse, Mary Sexton, treated C.H. at the
hospital, and according to Sexton's notes, C.H. told her the
attackers had a small black-handled pistol. Because Sexton
failed to note down some of the abrasions C.H. had suffered (as
shown in photographs admitted in evidence) and because Sexton
- 36 -
came across to the trial court as a "glum" or reluctant witness,
the court did not find her to be credible. But if one considers
Sexton to be an unreliable witness, it seems one would have to
consider Good to be unreliable, too, for he testified that when
he approached C.H. and the assailants fled, C.H. ran to him and
said she had been raped and that "they had a gun." C.H. never
mentioned a gun in her testimony at trial. That her assailants
were armed with a pistol would have been an important fact under
any view, and the omission of that fact from her testimony is
troubling and inexplicable.
Typically, falsehood reveals itself in the incidental
factual representations. A lie becomes more difficult to sustain
as the details accumulate. (I am not asserting that C.H. lied.
That is not for us to decide. I am merely trying, as fairly as
possible, to take account of the evidence on the other side.)
C.H. testified that as she was walking down the sidewalk, on her
way home from visiting a friend's house, respondent, whom she
described as the taller boy, and G.W., whom she described as the
shorter boy, asked her if she would like to go behind a house and
have a drink. Apparently, the house was where respondent's
cousin, Destiny Nesbitt lived. According to C.H.'s testimony,
she paused a moment on the sidewalk, and respondent, the taller
boy, was idly pressing a button, causing a garage door to go up
and down. C.H. testified she declined G.W.'s offer, whereupon
G.W. grabbed her and pulled her behind the house and the two boys
sexually assaulted her. According to respondent's testimony,
- 37 -
C.H. voluntarily went behind his cousin's house pursuant to her
agreement with him and G.W. to have sex with them for $20 apiece.
As it turned out, Nesbitt did indeed have a garage adjoining her
duplex, but the evidence was unrebutted that the garage had a
manual door with no automatic garage-door opener or electric
button. The trial court stated: "There would be no reason for
C.H. to make that up, and it may well have been a
[mis]perception. I don't think anyone is paying careful atten-
tion to the mechanism that operates a garage door when the events
are on the discussion and what took place." I do not think that
all reasonable minds would necessarily be satisfied by this
rationalization. It is difficult to understand how C.H. could
have misperceived what respondent was doing--she thought she saw
him pressing a button, but actually he grasped the handle of the
garage door and physically lifted the door and lowered it over
and over again? Setting aside the question of why anyone would
feel inclined to do that, the physical actions are so different
from one another as to make a mistake unlikely. A rational trier
of fact could find--would not have to find, but could find--that
C.H. made up the electric garage-door opener and made up the
black-handled gun and made up the midnight trip to the friend's
house and, therefore, made up the sexual assault.
In summary, with respect to the charge of criminal
sexual assault, this case turned on credibility, as the majority
admits--C.H.'s testimony on the one hand and respondent's testi-
mony on the other--and respondent was not the only witness whose
- 38 -
narrative was plagued by discrepancies, contradictions, and
improbabilities. One could question C.H.'s credibility, too.
Therefore, contrary to the majority's assessment, the evidence
was closely balanced.
The majority refuses to apply the plain-error doctrine
to this case because the evidence on the other count, attempt
(robbery), was not closely balanced. Apparently, in the major-
ity's view, if a defendant were charged with one count of first-
degree murder and one count of misdemeanor theft and the evidence
were closely balanced on the former count but not on the latter
count, review under the doctrine of plain error would be unavail-
able: it would not matter that because the evidence of murder
was closely balanced, an error might have caused the defendant to
be wrongly convicted of that offense--because the evidence that
he committed misdemeanor theft was overwhelming. That approach
to plain error cannot logically be sustained.
"When there is error in a close case, we choose to err
on the side of fairness, so as not to convict an innocent per-
son." Herron, 215 Ill. 2d at 193, 830 N.E.2d at 483. Failing to
hold a Boose hearing was error. See Allen, 222 Ill. 2d at 353,
856 N.E.2d at 356. For 137 years, courts in this country have
recognized that shackles can function as a psychological weapon
against the accused. In the first American shackling case, the
Supreme Court of California stated:
"A prisoner upon his trial in [c]ourt is
in the custody of the law[] and under the
- 39 -
immediate control of and subject to the or-
ders of such [c]ourt. *** [A]ny order or
action of the [c]ourt which, without evident
necessity, imposes physical burdens, pains
and restraints upon a prisoner during the
progress of his trial, inevitably tends to
confuse and embarrass his mental faculties,
and thereby materially to abridge and preju-
dicially affect his constitutional rights of
defense; and especially would such physical
bonds and restraints in like manner materi-
ally impair and prejudicially affect his
statutory privilege of becoming a competent
witness and testifying in his own behalf."
People v. Harrington, 42 Cal. 165, 168
(1871).
Likewise, the Supreme Court of Missouri has stated: "[T]he
condition of the prisoner in shackles may, to some extent,
deprive him of the free and calm use of all his faculties."
State v. Kring, 64 Mo. 591, 593 (1877); see also Williams v.
State, 629 P.2d 54, 58 n.7 (Ala. 1981); State v. Roberts, 86 N.J.
Super. 159, 164, 206 A.2d 200, 203 (1965). It may be that,
physically, restraints are not as painful now as they were a
hundred or more years ago (Deck v. Missouri, 544 U.S. 622, 630,
161 L. Ed. 2d 953, 963, 125 S. Ct. 2007, 2012-13 (2005); Kennedy
v. Cardwell, 487 F.2d 101, 106 (6th Cir. 1973)), but I am uncon-
- 40 -
vinced that the cases were concerned merely with physical pain.
They were concerned with the diminution of the accused's self-
respect before the tribunal to which he must make his defense.
Courts considered it an abhorrent practice to "'"[bring the
defendant] to the [b]ar in a contumelious [m]anner,"'" bearing,
on his hands or feet, the "'"[m]ark of [i]gnominy and
[r]eproach."'" Deck, 544 U.S. at 630, 161 L. Ed. 2d at 963, 125
S. Ct. at 2013, quoting Roberts, 86 N.J. Super. at 162, 206 A.2d
at 202, quoting 2 W. Hawkins, Pleas of the Crown, ch. 28, §1, at
308 (1716-1721) (section on arraignments).
Even in a bench trial, a defendant should not be
shackled unless the trial court has good cause to believe that
shackles are necessary to keep the courtroom safe or to prevent
escape, for unnecessary shackling threatens the dignity of the
court. Staley, 67 Ill. 2d at 37, 364 N.E.2d at 73. As a court
loses its dignity, it loses credibility with the public (Deck,
544 U.S. at 631, 161 L. Ed. 2d at 964, 125 S. Ct. at 2013); and I
further would argue that it loses credibility with the defendant
--to the possible detriment of his defense. To do his best at
trial, the defendant must have confidence that he is making his
case to a rational and impartial trier of fact who genuinely
presumes he is innocent until the State proves him to be guilty
beyond a reasonable doubt. Unnecessary and unjustified shackling
weakens that confidence; it "jeopardizes the presumption's value
and protection." Staley, 67 Ill. 2d at 37, 364 N.E.2d at 73.
The presumption of innocence is a noble ideal, but this ideal
- 41 -
will inspire little hope if hard iron reminds the defendant,
every moment of the trial, how things really are between him and
the court--for, plainly, he is not "stand[ing] trial 'with the
appearance, dignity, and self-respect of a free and innocent
man.'" Staley, 67 Ill. 2d at 37, 364 N.E.2d at 73, quoting Eaddy
v. People, 115 Colo. 488, 492, 174 P.2d 717, 719 (1946). In
addition to defending himself against the State's evidence, a
defendant should not have to struggle with a sense of futility, a
disheartening suspicion that he is presumed guilty. Anyone who
can sit in chains with no diminution of courage and confidence
has a thicker hide than the common run of humanity. I would find
the failure to hold a Boose hearing to be plain error because the
evidence was closely balanced. I would reverse the trial court's
judgment and remand this case for a new trial--to be conducted
without shackles, unless the trial court holds a Boose hearing
and finds a clear need for them.
B. Denial of a Jury Trial
1. The Inapplicability of Fucini, Presley, and G.O.
In rejecting respondent's argument that denying him a
jury trial violated due process, the majority begins by citing
three cases--Fucini, Presley, and G.O.--all of which are distin-
guishable because they do not address the specific arguments
respondent is making in this appeal. It is true, as the majority
says, that in Fucini, 44 Ill. 2d at 310, 255 N.E.2d at 382, and
Presley, 47 Ill. 2d at 55, 264 N.E.2d at 179 (which simply
referenced Fucini), the supreme court "held that juveniles have
- 42 -
no right to a jury trial under the Illinois Constitution." Slip
op. at 21. But the supreme court decided Fucini and Presley in
1970, and much has changed in the intervening 38 years. The
Juvenile Court Act no longer exists. We now have the Juvenile
Court Act of 1987, which, in 1999, was amended so as to effect "a
fundamental shift from the singular goal of rehabilitation to
include overriding concerns of protecting the public and holding
juvenile offenders accountable for violations of the law" (Tay-
lor, 221 Ill. 2d at 167, 850 N.E.2d at 139). Also, when the
supreme court decided Fucini and Presley, there was no Sex
Offender Registration Act (730 ILCS 150/1 through 12 (West
2006)).
As for G.O., it is true, as the majority says, that the
supreme court in that case "rejected arguments that the denial of
a jury trial to a juvenile charged with first-degree murder
violated equal protection or due process." Slip op. at 22-23.
But, again, this discussion of G.O. is so general as to be
misleading. One must bear in mind the argument the respondent
was making in that case. He argued that denying him a jury trial
violated due process because the mandatory minimum sentence
required by section 5-33(1.5) of the Act (705 ILCS 405/5-33(1.5)
(West 1996))--i.e., "commit[ment] to the Department of Correc-
tions, Juvenile Division, until his '21st birthday, without the
possibility of parole, furlough, or non[]emergency authorized
absence for a period of 5 years'" (G.O., 191 Ill. 2d at 40-41,
727 N.E.2d at 1005)--"render[ed] the process to which [he was]
- 43 -
subject much more punitive than rehabilitative." G.O., 191 Ill.
2d at 44, 727 N.E.2d at 1007. The supreme court rejected respon-
dent's due-process theory in G.O. for the sole reason that the
theory rested on a false premise, namely, that there was such a
statute as section 5-33(1.5). Actually, that section of the Act
was void ab initio because it was part of Public Act 88-680 (Pub.
Act 88-680, §5-15, eff. January 1, 1995 (1994 Ill. Laws 2750)),
which, in People v. Cervantes, 189 Ill. 2d 80, 98, 723 N.E.2d
265, 274 (1999), the supreme court held to be unconstitutional
because the General Assembly had violated the single-subject
clause (Ill. Const. 1970, art. IV, §8(d)). G.O., 191 Ill. 2d at
43-44, 727 N.E.2d at 1007. The respondent in G.O. gave the
supreme court "no other reason to reexamine [its] earlier deci-
sions" such as Fucini. G.O., 191 Ill. 2d at 44, 727 N.E.2d at
1007.
Significantly, the majority in G.O. stated: "Contrary
to Justice Heiple's assertions [in his dissent], we do not hold
that a due[-]process argument is foreclosed by Fucini. Instead,
we hold that, in the absence of the mandatory sentencing provi-
sion, [the] respondent does not ask this court to reconsider
Fucini. The argument considered by Justice Heiple is not before
this court[,] and we express no opinion [on] its merits." G.O.,
191 Ill. 2d at 44 n.3, 727 N.E.2d at 1007 n.3. In this appeal,
respondent relies heavily on Justice Heiple's dissent in G.O. and
repeats his arguments. It is true that Justice Heiple's dissent
is not precedential, but the majority in this case goes further
- 44 -
and concludes that Fucini, Presley, and G.O. dispose of Justice
Heiple's arguments (which also are respondent's arguments) when,
in fact, the majority in G.O. emphasized it was expressing no
opinion, one way or the other, on the merits of Justice Heiple's
arguments and disavowed any implication that Fucini foreclosed a
due-process challenge along the lines of his dissent.
Thus, the three cases on which the majority chiefly
relies in disposing of respondent's due-process theory (Fucini,
Presley, and G.O.) really pose no obstacle at all to that theory.
Fucini and Presley were decided under a statute that no longer
exists, and G.O. rejected a due-process challenge for a narrow
reason that has no relevance to this case.
2. Due Process Versus the "Wooden Approach"
The majority concludes that respondent's due-process
challenge must fail because despite the 1999 amendments to the
Act, proceedings under the Act still are not criminal (A.G., 195
Ill. 2d at 317, 746 N.E.2d at 735; Taylor, 221 Ill. 2d at 168,
850 N.E.2d at 140) and "rehabilitation remains a more important
consideration in the juvenile justice system than in the criminal
justice system" (Taylor, 221 Ill. 2d at 170, 850 N.E.2d at 141).
As long as there is a juvenile justice system with less severe
maximum sentences than in the criminal justice system, one never
will be able to characterize delinquency proceedings--absolutely
and unreservedly--as "criminal"; rehabilitation always will be a
somewhat greater consideration in juvenile delinquency proceed-
ings than in criminal proceedings. Labels should not determine
- 45 -
our disposition of respondent's appeal. The Supreme Court has
said: "Little, indeed, is to be gained by any attempt simplisti-
cally to call the juvenile court proceeding either 'civil' or
'criminal.' The Court carefully has avoided this wooden ap-
proach." McKeiver, 403 U.S. at 541, 29 L. Ed. 2d at 658, 91 S.
Ct. 1984. Delinquency proceedings are on a continuum between
civil and criminal--they partake of aspects of each--and instead
of asking whether delinquency proceedings are one or the other,
we should be asking whether, in respondent's case, the proceed-
ings were close enough, in their objectives, to the criminal end
of the continuum (and far enough away from the State's tradi-
tional paternalistic role) as to make it a violation of due
process, or fundamentally unfair, to deny him a trial by jury.
I derive the standard of fundamental fairness from
McKeiver, a plurality decision by the Supreme Court. A majority
of the Court agreed in that case that trial by jury in a juvenile
court's adjudicative stage was not constitutionally required.
McKeiver, 403 U.S. at 545, 29 L. Ed. 2d at 661, 91 S. Ct. at
1986. Justice Blackmun wrote an opinion listing 13 reasons for
that holding. McKeiver, 403 U.S. at 545-51, 29 L. Ed. 2d at 661-
64, 91 S. Ct. at 1986-89. Only three other members of the Court
--Chief Justice Burger, Justice Stewart, and Justice White--
joined in Justice Blackmun's opinion. Justice Harlan concurred
in the judgments for the sole reason that, in his view, "criminal
jury trials [were] not constitutionally required of the [s]tates,
either as a matter of [s]ixth[-][a]mendment law or due process."
- 46 -
McKeiver, 403 U.S. at 553, 29 L. Ed. 2d at 668, 91 S. Ct. at 1992(Harlan, J., concurring). No other members of the court shared
that view. Justice Brennan concurred in the judgment in the
Pennsylvania cases but dissented in the North Carolina cases (two
groups of cases, one group from Pennsylvania and the other from
North Carolina, were before the Court). In his opinion, he did
not say he agreed with Justice Blackmun's 13 reasons, but on one
point he did explicitly agree with Justice Blackmun's rationale:
that due process required "'fundamental fairness *** [in]
factfinding.'" McKeiver, 403 U.S. at 554, 29 L. Ed. 2d at 666,
91 S. Ct. at 1990 (Brennan, J., concurring in part and dissenting
in part).
In both Justice Blackmun's opinion and Justice
Brennan's opinion (and, therefore, in the view of a majority of
the Supreme Court), the fundamental fairness of denying a jury
trial in juvenile delinquency proceedings depended largely on the
paternalistic and beneficent character of such proceedings.
Justice Blackmun was concerned that requiring a jury trial would
"remake the juvenile proceeding into a fully adversary process
and [would] put an effective end to what has been the idealistic
prospect of an intimate, informal protective proceeding."
McKeiver, 403 U.S. at 545, 29 L. Ed. 2d at 661, 91 S. Ct. at
1986; see also Fucini, 44 Ill. 2d at 309, 255 N.E.2d at 382.
Justice Brennan reasoned as follows:
"The availability of trial by jury allows an
accused to protect himself against possible
- 47 -
oppression by what is in essence an appeal to
the community conscience, as embodied in the
jury that hears his case. To some extent,
however, a similar protection may be obtained
when an accused may in essence appeal to the
community at large, by focusing public atten-
tion upon the facts of his trial, exposing
improper judicial behavior to public view,
and obtaining, if necessary, executive re-
dress through the medium of public indigna-
tion. Of course, the Constitution, in the
context of adult criminal trials, has re-
jected the notion that public trial is an
adequate substitution for trial by jury in
serious cases. But in the context of juve-
nile delinquency proceedings, I cannot say
that it is beyond the competence of a [s]tate
to conclude that juveniles who fear that
delinquency proceedings will mask judicial
oppression may obtain adequate protection by
focusing community attention upon the trial
of their cases. For, however much the juve-
nile system may have failed in practice, its
very existence as an ostensibly beneficent
and noncriminal process for the care and
guidance of young persons demonstrates the
- 48 -
existence of the community's sympathy and
concern for the young. Juveniles able to
bring the community's attention to bear upon
their trials may therefore draw upon a reser-
voir of public concern unavailable to the
adult criminal defendant." McKeiver, 403
U.S. at 554-55, 29 L. Ed. 2d at 666, 91 S.
Ct. at 1991 (Brennan, J., concurring in part
and dissenting in part).
Justice Brennan dissented in the North Carolina cases because
North Carolina law either permitted or required the exclusion of
the general public from juvenile trials. McKeiver, 403 U.S. at
556, 29 L. Ed. 2d at 667, 91 S. Ct. at 1991 (Brennan, J., concur-
ring in part and dissenting in part).
Section 1-5(6) of the Act provides: "The general
public except for the news media and the crime victim *** shall
be excluded from any hearing and, except for the persons speci-
fied in this [s]ection[,] only persons, including representatives
of agencies and associations, who in the opinion of the court
have a direct interest in the case or in the work of the court
shall be admitted to the hearing." 705 ILCS 405/1-5(6) (West
2006). Because the general public is excluded from hearings
under the Act and we have held that a trial court, in its discre-
tion, also may exclude the news media (In re a Minor, 205 Ill.
App. 3d 480, 491, 563 N.E.2d 1069, 1076 (1990)), public scrutiny
of the trial court's decision in a juvenile delinquency case
- 49 -
cannot substitute for a jury trial. Respondent was not able to
"draw upon a reservoir of public concern." See McKeiver, 403
U.S. at 555, 29 L. Ed. 2d at 666, 91 S. Ct. at 1991 (Brennan, J.,
concurring in part and dissenting in part).
Further, with the 1999 amendments to the Act and the
necessity of respondent's having to register as a sex offender as
a result of the adjudication of delinquency, it is unclear that
"concern," "sympathy," and "paternal attention" were the upper-
most values in the proceeding. McKeiver, 403 U.S. at 550, 29 L.
Ed. 2d at 664, 91 S. Ct. at 1989. As applied to respondent, the
process was not "ostensibly beneficent." McKeiver, 403 U.S. at
555, 29 L. Ed. 2d at 666, 91 S. Ct. at 1991 (Brennan, J., concur-
ring in part and dissenting in part). In Taylor, 221 Ill. 2d at
165-66, 850 N.E.2d at 138-39, the supreme court gave an overview
of the 1999 amendments to the Act:
"The *** Act was radically altered ***.
The General Assembly amended the Act with
Public Act 90-590, effective January 1, 1999.
705 ILCS Ann. 405/5-101 et seq. (Smith-Hurd
1999). The amendatory changes renumbered the
sections and largely rewrote article V of the
Act to provide more accountability for the
criminal acts of juveniles and, from all
appearances, to make the juvenile delinquency
adjudicatory process look more criminal in
nature. Compare 705 ILCS 405/5-1 et seq.
- 50 -
(West 1996) with 705 ILCS 405/5-105 et seq.
(West 2000). For starters, the 1999 amend-
ments provided a new purpose and policy sec-
tion, which states in relevant part as fol-
lows:
'(1) It is the intent of the
General Assembly to promote a juve-
nile justice system capable of
dealing with the problem of juve-
nile delinquency, a system that
will protect the community, impose
accountability for violations of
law[,] and equip juvenile offenders
with competencies to live responsi-
bly and productively. To effectu-
ate this intent, the General Assem-
bly declares the following to be
important purposes of this
[a]rticle:
(a) To protect citi-
zens from juvenile crime.
(b) To hold each
juvenile offender
directly accountable for
his or her acts.
(c) To provide an
- 51 -
individualized assessment
of each alleged and adju-
dicated delinquent juve-
nile, in order to reha-
bilitate and to prevent
further delinquent behav-
ior through the develop-
ment of competency in the
juvenile offender. As
used in this [s]ection,
"competency" means the
development of
educational, vocational,
social, emotional[,] and
basic life skills which
enable a minor to mature
into a productive member
of society.
(d) To provide due
process, as required by
the Constitution of the
United States and the
State of Illinois,
through which each juve-
nile offender and all
other interested parties
- 52 -
are assured fair hearings
at which legal rights are
recognized and enforced.
(2) To accomplish these goals,
juvenile justice policies developed
pursuant to this [a]rticle shall be
designed to:
***
(b) Provide secure
confinement for minors
who present a danger to
the community and make
those minors understand
that sanctions for seri-
ous crimes, particularly
violent felonies, should
be commensurate with the
seriousness of the of-
fense and merit strong
punishment;
(c) Protect the
community from crimes
committed by minors;
* * *
(j) Hold minors
accountable for their
- 53 -
unlawful behavior and not
allow minors to think
that their delinquent
acts have no consequence
for themselves and oth-
ers.' 705 ILCS 405/5-101
(West 2000).
Although proceedings under the Act are
still not criminal in nature even in the
aftermath of the 1999 amendments and are to
be administered in a spirit of humane concern
for the minor and to promote his general
welfare, the policy statement in section
5-101 represents a fundamental shift from the
singular goal of rehabilitation to include
the overriding concerns of protecting the
public and holding juvenile offenders ac-
countable for violations of the law. [Cita-
tion.] Consistent with this end, the 1999
amendments changed some of the terminology of
the Act. The Act now provides for a number
of features common to a criminal trial.
Pertinent to our analysis are the following
provisions. The legislature has now indi-
cated an intent that the term '"trial" re-
place the term "adjudicatory hearing" and be
- 54 -
synonymous with that definition as it was
used in the [Act].' 705 ILCS 405/5-101(17)
(West 1998). Furthermore, the Act now allows
for a 'plea of guilty' in a delinquency pro-
ceeding (705 ILCS 405/5-605 (West 1998)), and
if a trial is conducted, the court is re-
quired, at its conclusion, to 'make and note
in the minutes of the proceeding a finding of
whether or not the minor is guilty.' (Empha-
sis added.) 705 ILCS 405/5-620 (West 1998).
If the court finds the minor 'guilty,' the
cause then proceeds to a 'sentencing hear-
ing,' where it is determined whether or not
it is in the best interests of the minor or
the public that he be made a ward of the
court, with the possibility that if defendant
is adjudicated a ward of the court, he could
be committed to the Department of Correc-
tions, Juvenile Division. 705 ILCS
405/5-620, 5-705, 5-710 (West 1998). In sum,
the Act now provides for pleas of guilty,
findings of guilty[,] and sentencing ***."
Not only was respondent "tried" under an Act that,
since the 1999 amendments, put an increased emphasis on punish-
ment and, as the supreme court said, "look[ed] more criminal in
nature," but his commitment to the Juvenile Division of the
- 55 -
Department of Corrections until his twenty-first birthday (an
approximate five-year sentence) translates to an even longer
sentence when one recognizes that adult offenders earn good-time
credits for time served and programs completed. Moreover, the
finding of "guilty" of the offense of criminal sexual assault
(720 ILCS 5/12-13(a)(1) (West 2004)) resulted in a designation of
"sexual predator" within the meaning of section 2(E)(1) (730 ILCS
150/2(E)(1) (West 2004)), requiring respondent to begin register-
ing as a sex offender when he turned 17 (730 ILCS 150/3(a) (West
2004)) and to continue registering for the rest of his life (730
ILCS 150/7 (West 2004)). The State was not acting as a compas-
sionate and sympathetic "parent" when it imposed that requirement
on him. Society holds sex offenders in deep abhorrence. See M.
Earl-Hubbard, The Child Sex Offender Registration Laws: The
Punishment, Liberty Deprivation, and Unintended Results Associ-
ated with the Scarlet Letter Laws of the 1990s, 90 NW. U. L. Rev.
788, 824 (1996) ("Authorities have documented numerous instances
of vigilantism and attacks on registered offenders in the few
years the registration laws have been in effect"); R. Tewksbury,
Conversation: Residency Restrictions on Sex Offenders: Exile at
Home: The Unintended Collateral Consequences of Sex Offender
Residency Restrictions, 42 Harv. C.R.-C.L. L. Rev. 531, 534-35
(2007) (loss or denial of employment, decrease in social interac-
tion, and difficulty finding housing). Being registered as a sex
offender is like having the mark of Cain, and it is a mark that
respondent will bear to his grave. He will be
- 56 -
"forever kept under the shadow of his crime,
forever kept within voice and view of the
criminal magistrate, not being able to change
his domicile without giving notice to the
'authority immediately in charge of his sur-
veillance' ***. He may not seek, even in
other scenes and among other people, to re-
trieve his fall from rectitude. Even that
hope is taken from him, and he is subject to
tormenting regulations that, if not so tangi-
ble as iron bars and stone walls, oppress as
much by their continuity ***." Weems v.
United States, 217 U.S. 349, 366, 54 L. Ed.
793, 798, 30 S. Ct. 544, 549 (1910).
Considering what was at stake in this juvenile delinquency
proceeding, fundamental fairness required that respondent have a
right to a jury trial, and I would reverse the trial court's
judgment and remand this case with directions to afford him that
right.
- 57 -