Opinion
No. 2-18-0922
04-04-2019
In re EDDIE B., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Eddie B., Respondent-Appellant).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Du Page County. No. 18-JD-51 Honorable Robert J. Anderson, Judge, Presiding. JUSTICE HUDSON delivered the judgment of the court.
Justices McLaren and Jorgensen concurred in the judgment.
ORDER
¶ 1 Held: The trial court's order adjudicating respondent delinquent for aggravated robbery was affirmed where respondent failed to establish that lack of service on his biological parents amounted to plain error. ¶ 2 Respondent, Eddie B., appeals the trial court's order adjudicating him delinquent for aggravated robbery and imposing probation. For the following reasons, we affirm.
¶ 3 I. BACKGROUND
¶ 4 Respondent initially was charged by indictment as an adult with four counts of armed robbery at a Speedway gas station in Addison on July 26, 2015. The indictment alleged that, while armed with a firearm, respondent and his co-defendant Kevin G. robbed the gas-station clerk and a gas-station customer. A subsequent indictment added counts of aggravated robbery. Respondent was 17 years old at the time of the alleged crimes. ¶ 5 The case was transferred to juvenile court on January 8, 2018, by agreement of the parties. Also on January 8, 2018, the State filed a six-count petition to adjudicate respondent delinquent, alleging two counts each of armed robbery, aggravated robbery, and robbery. The petition alleged that on July 26, 2015, respondent, while armed with a firearm, robbed a store clerk and a store customer at the Speedway gas station. The delinquency petition identified respondent's mother and father as respondents and stated that their names were "unknown at this time" and their addresses were "same address as minor." On January 10, 2018, a summons was issued to "Curly [B.]" as a respondent to appear on January 29, 2018, for an adjudicatory hearing. The record reflects that the summons was never served (and that there was no adjudicatory hearing held on January 29, 2018). ¶ 6 The State filed a motion on January 29, 2018, for a discretionary transfer of jurisdiction pursuant to section 405/5-805(3) of the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/5-805(3) (West 2018)) to allow the prosecution of respondent as an adult given the seriousness of the alleged offense and respondent's prior record of delinquency. Status hearings were held on March 12, 2018, and April 16, 2018, at which respondent, his counsel, and Taatum Evans, who identified herself as respondent's godmother, were present. ¶ 7 A hearing on the State's motion to transfer jurisdiction was held on June 27, 2018. Respondent, his counsel, and Evans were again present. Respondent's counsel referred to Evans as respondent's guardian and successfully moved to allow Evans's presence during the trial as Evans "has, you know, raised [respondent] for a substantial portion of his life." Following the hearing, the trial court denied the State's motion to transfer jurisdiction, finding that it was in the public's best interest that respondent be prosecuted as a juvenile. Subsequently, at a September 17, 2018, status hearing, the transcript reflected that a "Faith Evans (phonetic)" was present and responded "yes" to the trial court's question as to whether she was respondent's mother. ¶ 8 The adjudicatory hearing was held on October 24, 2018. Respondent and his counsel were present. An individual who identified herself as "Tato" Evans also was present. In response to the State's motion to exclude witnesses, the trial court stated, "His mom is entitled to be here; she's a party. So you should sit with your lawyers, and then, ma'am you can sit right behind them." ¶ 9 At the adjudicatory hearing, the clerk at the Speedway gas station, Nicole Marquez, testified that at 11:30 p.m. on July 26, 2015, she was helping a cashier close out a cash register when she heard loud voices in the store. She then saw a figure in her peripheral vision, and when she looked up, she saw a gun in her face. The person holding the gun was wearing a short, dark-blue, hooded sweatshirt and gloves. The gunman told Marquez to give him the money in the drawer. Marquez gave him the money; she did not know the exact amount, but it was over $250. As the gunman ran out of the store, Marquez saw a second person running out of the store. A surveillance video from the gas station, which reflected the events to which Marquez testified, was played, and Marquez was shown still photos from the surveillance video. Marquez further testified that during the investigation of the robbery, on August 3, 2016, a police officer showed her a photograph of what she recognized "almost immediately" as "the exact sweatshirt" that the person who robbed her was wearing. ¶ 10 Addison Police Detective Eric Brant testified that shortly after the robbery, he reviewed surveillance videos from the Speedway gas station. The surveillance video of the outer perimeter of the parking areas and pump area showed that about 10 minutes prior to the incident, a small, black sedan "missing its front passenger side wheel cover" approached some of the gas pumps, sat at the gas pumps, and then drove away, without anyone entering or exiting the car, toward an unincorporated area with "a couple small side streets" and "[o]nly a few residences." Shortly after the incident, the police recovered two "blue color latex medical-type gloves" near the gas station. DNA from one of the gloves matched co-defendant Kevin G. ¶ 11 Detective Brant further testified that on July 28, 2015, Chicago police detectives telephoned him and reported that they had an individual in custody who was wearing a sweatshirt similar to the reported sweatshirt of the suspect in the Speedway gas station robbery—a "dark colored, short sleeve, hooded sweatshirt with a white Nike logo in the upper left chest." The Chicago Police Department also had identified a car that matched the car that was in the Speedway gas station lot shortly before the robbery. The owner of the car was Michelle Robinson. According to the Chicago police detectives, the individual in custody and the car were alleged to have been involved in an armed robbery of a 7-11 store in Chicago on July 27, 2015—one day after the robbery at the Speedway gas station in Addison. ¶ 12 Chicago Police Detective Jeff Malik testified regarding his investigation of the July 27, 2015, armed robbery of the 7-11 store. It was reported that two individuals with handguns had robbed the store. Detective Malik found two blue latex gloves, a handgun, and one unfired round in a gangway north of the store. He also learned that a black Nissan car was in an alley near the store and that two individuals, Michelle Robinson and Floyd. B., had been in the car. Detective Malik observed a box of latex gloves in the car. Meanwhile, shortly after the 7-11 store robbery, an area resident reported that someone was hiding in the bushes behind his house. Police officers investigated and found respondent hiding in the bushes. ¶ 13 Michelle Robinson testified that at the time of the robberies, she was dating respondent's cousin—Floyd B.—and had known respondent for about three or four years. On the night of the Speedway gas station robbery, July 26, 2015, Robinson and Floyd B. were on a date in Addison. Robinson was driving her 2012 Nissan Versa with a missing hubcap on the passenger side. According to Robinson, while in Addison that night, a car approached her car. Respondent and another person exited the car and entered her car. They directed her to drive to the Speedway gas station. Robinson had blue "medical grade gloves" in her car because at the time she was in school to be a medical assistant. Robinson drove to the Speedway gas station. Robinson asked them "what was going on," and they responded "a robbery." Respondent and the other person with him exited the car and went inside the gas station for about two or three minutes. When they returned to the car, respondent was "fidgeting" or "moving around, moving his hands and stuff." Robinson drove away from the station. As she drove away, she saw police lights in her rearview mirror. ¶ 14 Robinson further testified that in September 2015, Detective Brant showed her interior and exterior surveillance photographs of the Speedway gas station from the night of the robbery. Robinson identified her car in the photographs as well as respondent by the sweatshirt that he was wearing that night. ¶ 15 The trial court denied respondent's motion for a directed finding. Following closing arguments, the trial court found that the State failed to meet its burden of proving that respondent was armed with a gun at the time of the robbery and failed to meet its burden of proving respondent guilty of robbery or aggravated robbery of the store customer. However, the trial found that the State "more than met its burden" on the counts alleging robbery and aggravated robbery of the gas station clerk and adjudicated respondent guilty on both counts. The trial court merged the offenses, entered judgment on the aggravated robbery count, and scheduled a dispositional hearing for October 29, 2018. ¶ 16 DCFS's juvenile social history report filed on October 26, 2018, before respondent's dispositional hearing stated, "Cook County documented mother's name was Curly [B.] ***, however Eddie reported to the Du Page Juvenile Probation Department his mother's name was Taatum Evans ***." The report further stated that respondent was living with Taatum Evans. The address identified for both respondent and "mother" was the same. As for respondent's father, the report reflected that the name of respondent's father is "Eddie Carter (according to Cook)" and his address was "[n]ot reported." ¶ 17 A Cook County Juvenile Court supplemental social investigation report prepared in 2014 for a prior proceeding (and also filed in this case on October 26, 2018) stated that the name of respondent's mother is "Curly [B.]" and that her address was the same address as that identified for respondent. The report reflects that the investigator had telephone contact with respondent's mother on two occasions. The report also stated that the name of respondent's father is Eddie Carter and that his address was unknown. ¶ 18 Following the October 29, 2018, dispositional hearing, at which respondent, his counsel, and Evans were present, the trial court imposed probation on respondent until November 21, 2018—the day before respondent's 21st birthday. ¶ 19 Respondent timely appealed.
An amended delinquency petition was filed on February 15, 2018, reflecting an updated address for respondent.
Detective Malik's testimony was the subject of the State's successful motion (over respondent's objection) to admit evidence of other crimes to establish identity.
¶ 20 II. ANALYSIS
¶ 21 Respondent argues that his due process and statutory rights to parental notice were violated where there was no evidence that the State attempted to serve his biological parents with notice of the delinquency proceedings. Thus, respondent argues, the order adjudicating him delinquent must be vacated and the matter remanded for proper notice. Respondent acknowledges that he forfeited this issue by failing to raise it before the trial court but contends that the lack of notice amounts to plain error. We review de novo the legal issue of the right to notice in this delinquency proceeding. In re M.W., 232 Ill. 2d 408, 414 (2009). ¶ 22 Due process requires that notice in a juvenile delinquency proceeding be equivalent to that constitutionally required in civil and criminal cases. In re Application of Gault, 387 U.S. 1, 33 (1967); In re Antwan, 368 Ill. App. 3d 1119, 1124 (2006). Constitutionally adequate notice is notice, in writing, to the minor and the minor's parents or guardian of the specific charge or factual allegations to be considered at the adjudicatory hearing on delinquency. Gault, 387 U.S. at 33; In re C.R.H., 163 Ill. 2d 263, 268-69 (1994), overruled on other grounds by M.W., 232 Ill. 2d at 426. ¶ 23 The Juvenile Court Act sets forth requirements to safeguard the minor's and parents' constitutional right to adequate notice. Initially, a petition filed pursuant to the statute must state the names and residences of the minor and the minor's parents, guardian, or legal custodian. 705 ILCS 405/5-520(2)(b), (c), and (d) (West 2018). Upon the filing of the petition, the clerk of the court is required to issue a summons with the petition attached directed to the minor's parent, guardian, or legal custodian and to each person named as a respondent in the petition. 705 ILCS 405/5-525(1)(a) (West 2018). However, the summons need not be directed to a parent who "does not reside with the minor, does not make regular child support payments ***, and has not communicated with the minor on a regular basis." 705 ILCS 405/5-525(1)(a)(ii) (West 2018). Service of summons and the petition may be made by personal service or abode service, or by leaving a copy with the minor's guardian or custodian. 705 ILCS 405/5-525(1)(e) (West 2018). Under limited circumstances, service may be made by certified mail or by publication. 705 ILCS 405/5-525(2) (West 2018). The State must exercise diligence in meeting the notice requirements. In re Willie W., 355 Ill. App. 3d 297, 300 (2005). ¶ 24 Respondent contends that the State failed to serve his biological parents with summons and the delinquency petition despite the fact that they were identified as respondents in the delinquency petition and listed as having the same address as respondent. Moreover, respondent points out, the juvenile social history report in this case and the Cook County Juvenile Court supplemental social investigation report reflected that respondent's mother's name is Curly B. and his father's name is Eddie Carter, yet the State made no attempt to notify them of the delinquency proceedings or ascertain their identity, whereabouts, or relationship with respondent. ¶ 25 Our supreme court's decision in M.W. guides the analysis here. In M.W., the State filed a petition for adjudication of delinquency charging the minor with robbery. 232 Ill. 2d at 413. Service on the minor's mother was attempted but not successful. Id. However, both parents attended the detention hearing and received copies of the petition. Id. At the adjudication hearing, the State was granted leave to amend the petition to add a count of aggravated battery; the adjudicatory hearing immediately followed. Id. The minor's mother was present at the adjudication hearing; however, the minor's father did not attend the hearing and was never served with the amended petition. Id. Following trial, the minor was found guilty on both counts. Id. The minor never objected to the lack of notice to her father and raised the issue for the first time on appeal. Id. The appellate court reversed on grounds that the adjudication of delinquency was void for failure to notify the minor's father of the amended petition. Id. at 414. ¶ 26 The supreme court reversed the appellate court's judgment, rejecting the proposition that lack of notice deprived the court of subject matter or personal jurisdiction and holding that the lack of notice of the amended petition to the minor's father did not amount to plain error. Id. at 426, 429, 440. The court explained that to establish plain error, the minor had the burden of persuasion on the threshold question of whether there was clear or obvious error and ultimately on the issue of whether she was entitled to relief as a result of the error. Id. at 431. If the minor established "clear or obvious error," then she would be entitled to relief if either (1) " 'the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the [minor]' or (2) the error is 'so serious that it affected the fairness of the [minor's] trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.' " Id. (quoting People v. Piatkowski, 225 Ill. 2d 551, 564 (2007)). ¶ 27 Although the court concluded that the lack of notice to the minor's father was a clear or obvious error, the court nonetheless held that the evidence of the minor's guilt was not closely balanced. Id. at 432-38. Moreover, the court held, the error was not so serious that it affected the fairness of the minor's trial or challenged the integrity of the judicial process. Id. at 439-40. The minor contended that if her father had been present, he might have encouraged her to take responsibility for a lesser offense, leading to a lesser sentence. Id. at 439. However, the court pointed out, the minor was represented by counsel, and her mother was present throughout the proceedings. Id. at 439. Thus, the court concluded, the minor failed to demonstrate that the outcome of the proceedings would not have been different had her father been present. Id. ¶ 28 Here, respondent contends that the failure to notify his biological parents of the proceedings was clear or obvious error. In response, the State argues that it was not required to serve respondent's biological father because the record reflected that respondent did not reside with his father and that they do not maintain any contact. See 705 ILCS 405/5-525(1)(a)(ii) (West 2018) (the summons need not be directed to a parent who "does not reside with the minor, does not make regular child support payments ***, and has not communicated with the minor on a regular basis"). The State also argues that respondent invited any error in failure to serve his biological mother as the record demonstrated that Evans attended the proceedings and repeatedly was referred to as respondent's mother, his godmother, and/or his guardian without objection by respondent or Evans. See People v. Lucas, 231 Ill. 2d 169, 174 (2008) (stating that a party may not request to proceed in a certain manner and later allege that action was error). ¶ 29 We need not address this issue as, even if respondent were found to have met his burden of establishing that the failure to notify his biological parents of the delinquency proceedings was clear or obvious error, this is only the threshold question in the plain-error analysis. M.W., 232 Ill. 2d at 431. Respondent also must meet his burden of establishing that the evidence was so closely balanced that the error alone threatened to tip the scales of justice against him or that the error was so serious that it affected the fairness of his trial and challenged the integrity of the judicial process. See id. Respondent fails to address this burden. Indeed, respondent's opening brief and reply brief are entirely devoid of any analysis of these factors. An appellant must clearly set out the issues raised and support them with relevant authority. Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018); U.S. Bank v. Lindsey, 397 Ill. App. 3d 437, 459 (2009). The consequences of a failure to comply with this rule is forfeiture of the issue on appeal. See Lindsey, 397 Ill. App. 3d at 459. Forfeiture aside, the record demonstrates that respondent does not meet his burden. ¶ 30 First, after reviewing the evidence adduced against respondent at the adjudicatory hearing, we conclude that the evidence was not so closely balanced that the alleged error alone threatened to tip the scales of justice against him. As the trial court found, "I think the State has more than met its burden, and I am finding [respondent] guilty of those two charges." The Speedway gas station clerk identified respondent's sweatshirt as "the exact sweatshirt" that the person who robbed her was wearing. The same car was identified at both the Speedway gas station robbery and the 7-11 robbery the next day. The owner of the car, Michelle Robinson, testified that she was dating respondent's cousin; that she drove her boyfriend, respondent, and Kevin G. to the Speedway gas station on the night of the robbery; and that respondent told her that he was going to the gas station for a robbery. Blue latex gloves were recovered near the Speedway gas station shortly after the incident. DNA from one of the gloves matched the DNA of Kevin G. Accordingly, the record demonstrates that the evidence was not so closely balanced that the purported error in failure to serve respondent's biological parents threatened to tip the scales of justice against him. See M.W., 232 Ill. 2d at 431. ¶ 31 Second, there is simply no factual or legal basis upon which to conclude that the alleged error in failing to serve respondent's biological parents was so serious that if affected the fairness of his trial and challenged the integrity of the judicial process. Respondent was represented by counsel, and Taatum Evans, referred to as respondent's mother, his godmother, and/or his guardian, was present during the proceedings. There is no basis in the record upon which to hold that the presence of respondent's biological parents would have changed the outcome of the proceedings. See id. at 439-40. " 'To hold otherwise would permit the minor to keep the issue in reserve and, if an appeal proves necessary, to raise it then, when the record is barren.' " Id. at 440 (quoting In re J.P.J., 109 Ill. 2d 129, 140 (1985)). In sum, we hold that the record demonstrates that any failure to serve respondent's biological parents with notice of the delinquency proceedings did not amount to plain error.
¶ 32 III. CONCLUSION
¶ 33 For the reasons stated, we affirm the judgment of the circuit court of Du Page County adjudicating respondent delinquent. We deny the State's request that we assess a State's Attorney fee pursuant to 55 ILCS 5/4-2002(a) (West 2018). See In re W.W., 97 Ill. 2d 53, 58 (1983). ¶ 34 Affirmed.