Gauger v. Hendle

• Decision Date: 28 June 2011
• Docket Number: No. 2–10–0316.,2–10–0316.
• Citation: 2011 IL App (2d) 100316,352 Ill.Dec. 447,954 N.E.2d 307
• Parties: Gary A. GAUGER, Plaintiff–Appellant,v.Beverly HENDLE, Eugene Lowery, and Christopher Pandre in Their Individual and Official Capacities; The Office of the McHenry County Sheriff, and the County of McHenry, Defendants–Appellees.
• Court: United States Appellate Court of Illinois

2011 IL App (2d) 100316

954 N.E.2d 307

352 Ill.Dec. 447

Gary A. GAUGER, Plaintiff–Appellant,

v.Beverly HENDLE, Eugene Lowery, and Christopher Pandre in Their Individual and Official Capacities; The Office of the McHenry County Sheriff, and the County of McHenry, Defendants–Appellees.

No. 2–10–0316.

Appellate Court of Illinois, Second District.

June 28, 2011.

Matthew C. Crowl, Thomas J. Henehan, Schiff Hardin LLP, Chicago, for Gary A. Gauger.James G. Sotos, John J. Timbo, Jeffrey N. Given, James G. Sotos & Associates, Ltd., Itasca, for County of McHenry, Eugene Lowery, McHenry County Sheriff, Christopher Pandre.

OPINION

Presiding Justice JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Gary A. Gauger, sued defendants, Beverly Hendle, Eugene Lowery, Christopher Pandre, the office of the McHenry County sheriff, and the County of McHenry ¹ to recover damages for his arrest, conviction, and incarceration for the 1993 murders of his parents, Morris and Ruth Gauger. Following a trial on counts alleging malicious prosecution, conspiracy to maliciously prosecute, and indemnification, a jury rendered a verdict and answered special interrogatories in defendants' favor. Plaintiff appeals, arguing that the trial court erred in excluding: (1) this court's order on plaintiff's direct appeal of his conviction; and (2) evidence showing how the “actual murders” were committed and how the “real killers” were discovered. We affirm.

¶ 2 I. BACKGROUND

¶ 3 A. Proceedings Prior to the Current Lawsuit

¶ 4 In October 1993, a jury convicted plaintiff of the April 1993 murders of his parents. On January 11, 1994, plaintiff was sentenced to death. On September 22, 1994, his sentence was reduced to two sentences of life imprisonment without parole.

¶ 5 In 1995, while plaintiff's direct appeal was pending, federal authorities were investigating the Outlaw Motorcycle Club, a gang. On about August 31, 1995, Outlaw member Mark Quinn, who was being held in the Du Page County jail, contacted Sandra DeValkenaere, a federal Alcohol, Tobacco, and Firearms agent. On September 2, 1995, Quinn told DeValkenaere that Outlaw members Randall Miller and James “Preacher” Schneider killed plaintiff's parents during a robbery. Information concerning the federal investigation was first provided to the McHenry County State's Attorney's office in late 1995.

¶ 6 On March 8, 1996, this court reversed plaintiff's conviction and remanded the cause for a new trial. People v. Gauger, No. 2–94–1199, 277 Ill.App.3d 1114, 232 Ill.Dec. 633, 698 N.E.2d 724 (1996) (unpublished order under Supreme Court Rule 23). We held that, when the police originally took plaintiff in for questioning, they placed him in custody but lacked probable cause to do so; there was no probable cause until plaintiff made incriminating statements at the police station. Id. at 27–28. We also held that plaintiff's incriminating statements should have been suppressed because they constituted the fruits of the illegal arrest. Id. at 29. Finally, we determined that the evidence was sufficient to prove plaintiff guilty beyond a reasonable doubt and, accordingly, we remanded the cause for a new trial. Id. at 29–30.

¶ 7 In August 1996, plaintiff was released on home monitoring, pending the Illinois Supreme Court's decision on the State's petition for leave to appeal our decision. On October 4, 1996, following the supreme court's denial of the State's petition for leave to appeal ( People v. Gauger, 168 Ill.2d 606, 219 Ill.Dec. 569, 671 N.E.2d 736 (1996) (table)), the McHenry County State's Attorney dismissed by nolle prosequi the charges against plaintiff.²

¶ 8 On June 10, 1997, Schneider and Miller were arrested and Schneider confessed to the Gauger murders. Schneider later pleaded guilty to the murders, and Miller was convicted of federal racketeering charges that included the Gauger murders as predicate acts. In June 1997, after his arrest, Miller shared a cell block in the Waukesha County, Wisconsin, jail with Christopher Ignasiak. Over the next few weeks, Ignasiak kept notes of his conversations with Miller. Jail officials discovered the notes during a random search of Ignasiak's cell. The notes reflected that Miller had said that he was paid $3,000 “by the farmers' son” to “take out” the Gaugers; that Schneider had helped him; and that, if he had the opportunity, Miller would “slice” Schneider's throat as he did the Gaugers' for having told on him. Ignasiak submitted to questioning by federal investigators.

¶ 9 On October 1, 1999, plaintiff filed suit in federal court, raising both federal and state law claims against defendants for his alleged wrongful arrest and malicious prosecution. On September 24, 2002, the district court granted summary judgment in defendants' favor on the federal claims and declined supplemental jurisdiction over the state claims. Gauger v. Hendle, No. 99 C 50322, 2002 WL 31130087 (N.D.Ill. Sept. 24, 2002). On December 19, 2002, the Governor pardoned plaintiff based on plaintiff's innocence.

¶ 10 On October 30, 2003, the Seventh Circuit affirmed the dismissal of plaintiff's federal claims, except his false arrest claim. Gauger v. Hendle, 349 F.3d 354, 359 (7th Cir.2003), overruled on other grounds, Wallace v. City of Chicago, 440 F.3d 421 (7th Cir.2006), aff'd, Wallace v. Kato, 549 U.S. 384, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007). Subsequently, the district court dismissed with prejudice the federal false arrest claim.

¶ 11 B. Current Lawsuit

¶ 12 On September 23, 2003, plaintiff filed a five-count complaint in state court against defendants alleging malicious prosecution, false imprisonment, intentional infliction of emotional distress, and conspiracy and seeking damages under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1–101 et seq. (West 2002)). After summary judgment was granted in defendants' favor on several counts, a trial proceeded on the counts alleging malicious prosecution, conspiracy to maliciously prosecute, and indemnification.

¶ 13 Trial commenced on August 12, 2009.

¶ 14 1. Plaintiff

¶ 15 Plaintiff, age 57, testified that he works as an organic vegetable farmer on his parents' farm, which is in Richmond, off of Route 173. In 1993, plaintiff, who was then age 41, lived on the farm with his parents, Morris (age 72) and Ruth (69). In addition to farming, plaintiff's parents also ran (on the farm) a motorcycle repair shop and sold rugs. Plaintiff and his parents lived in the farmhouse. The rugs were sold from a trailer on the property. The farmhouse was located on a 214–acre parcel that Morris and Ruth owned; the house was about 400 to 500 feet from the end of the driveway adjacent to Route 173.

¶ 16 Plaintiff testified that he last saw his parents alive on Wednesday evening, April 7, 1993. His father went to bed at 8 p.m. because he had the flu. Plaintiff went to bed at 8:30 p.m. The next morning, Thursday, April 8, 1993, plaintiff awoke at 9 a.m. His parents were not in the house. Plaintiff ate in the kitchen. It was not a “big deal” to him that no one was in the house. Plaintiff was not certain where his parents were. He testified that his mother could have been away on errands; his father could have been in the shop or gone to Sugar Grove (Morris and Ruth had planned on going to Sugar Grove to purchase a tractor that their friend “Windy” (a man) had told them about, and Windy might have picked them up). Plaintiff looked for a note. He testified that he was in a hurry. He walked behind the house to the vegetable greenhouse.

¶ 17 The rain had stopped, and plaintiff moved pepper plants out of the greenhouse. After he moved the plants, he returned to the greenhouse to start a fire to warm up the shop. Plaintiff smoked part of a marijuana joint. He had a motorcycle project he was working on. The bike's owner stopped by with another motorcycle for plaintiff to repair. After the owner dropped it off, he left. Plaintiff started working on the bike. Later, at about noon, Art Clokey, who was renting the barn, asked plaintiff to move a pig for him. Afterwards, plaintiff continued working until 6:30 p.m.

¶ 18 While plaintiff walked across the field and to the house, he noticed a padlock on the rug trailer. This made him think that his parents had gone away, because the rug trailer was never locked unless his parents had gone away for the day. Plaintiff went into the house and ate. He looked for a note, but did not find one. Plaintiff then walked around the back of the house and checked a garage door. It was locked, which indicated to plaintiff that his parents were gone; they left it unlocked when they were home. Plaintiff returned to the shop to work on the bike. When he finished, he turned on the radio and finished smoking his joint.

¶ 19 At 10 p.m., plaintiff returned to the house and saw a light on in the garage. He looked inside through a window and saw no one. He did not look through another window with shrubbery in front of it; had he done so, he conceded, he would have seen his father's body. Plaintiff returned to the house. He became worried. Plaintiff testified that his parents would usually return by 10 or 10:30 p.m. He could think of no one to call. (His parents did not have cellphones.) Plaintiff waited by the phone until midnight and went to bed.

¶ 20 On Friday, April 9, 1993, plaintiff woke up about 9 a.m. and looked around the house. His parents were not in the house. A man drove up and asked when the shop was going to open; plaintiff told him that he did not know where his parents were and that the shop would not be opening that day. The visitor left. Plaintiff put up the gate and chain, picked up the newspapers, and returned to the house. At about 11 a.m., Morris's friend, Ed Zender, and his girlfriend, Traci Foskus, walked up the driveway. Plaintiff went outside and explained to them that his parents were missing. Zender asked for a British motorcycle nut, and they...