People v. Clauson, 87-0806

• Decision Date: 17 April 1989
• Docket Number: No. 87-0806,87-0806
• Citation: 130 Ill.Dec. 719,182 Ill.App.3d 268,537 N.E.2d 1048
• Parties: , 130 Ill.Dec. 719 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Stanley CLAUSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1048

537 N.E.2d 1048

182 Ill.App.3d 268, 130 Ill.Dec. 719

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Stanley CLAUSON, Defendant-Appellant.

No. 87-0806.

Appellate Court of Illinois,

First District, First Division.

April 17, 1989.

John T. Kelly, Orland Park, for defendant-appellant.

Richard M. Daley, State's Atty., Chicago (Inge Fryklund, James E. Fitzgerald, and Judy L. Groeneveld, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice BUCKLEY delivered the opinion of the court:

Stanley Clauson (defendant) appeals his conviction of misdemeanor criminal sexual abuse (Ill.Rev.Stat.1985, ch. 38, par. 12-15) following a bench trial and his sentence of one year conditional discharge, 30 days in the Cook County Department of Corrections, and a $500 fine. Defendant contends that the trial court erred in allowing the State to introduce evidence of a prior homosexual incident and testimony from a witness whose statements were not previously disclosed to the defense, that defendant was not proven guilty beyond a reasonable doubt, and that defendant did not waive his constitutional right to a jury trial. We reverse defendant's conviction and grant him a new trial.

At trial, the State presented the following witnesses. D.E., a resident of Midlothian, Illinois, testified to the events which occurred on July 15, 1986, when he was 15 years old. At approximately 3:30 or 4 p.m. on that day, after assisting in an arts and craft class at the First United Methodist Church in Harvey, Illinois, he left the church with defendant, who was a codirector of the church youth program, and two other girls in defendant's van. After defendant dropped off the two girls at their homes in Dolton, Illinois, D.E. fell asleep in the back seat captain's chair on their way to D.E.'s home in Midlothian.

When D.E. awoke, D.E.'s pants were down around his knees, defendant was at his side with his mouth on D.E.'s penis, and there was a policeman knocking on the window of the van. D.E. was wearing a shirt, jeans, a belt with a buckle, and underpants at the time. Defendant then arose, and D.E. brought his pants back up and exited the van "real quick."

Outside the van, one of the two police officers present took D.E. to a police car and asked him his age. Later, at the police station, D.E. told the police officer that "he had my pants down and his mouth on my penis."

D.E. further stated that he had known defendant for approximately six or seven years and that he had never been assaulted by defendant before. D.E. admitted that defendant had counseled him once for always getting in trouble, that he was in trouble for lying in the past, that a month prior to the incident defendant's wife was angry with him because he had been in their daughter's bedroom, and that defendant or his wife had once accused him of shooting a "BB" gun.

John Merrick, president of Custom Plate Glass, located at 147th and Mozart Streets in Midlothian, testified that at approximately 5 p.m. on July 15, 1986, he observed a van going to the end of Mozart Street and turn into his private driveway. He recognized it as the same beige van he had seen six months earlier, on or about January 15, 1986, parked at the same location. On that previous date, he had looked inside the van, which had tinted windows and venetian blinds, and observed one man "chewing" on the other man's penis. Merrick was unable to see their faces at that time, but he saw the side of the driver's face as the van was leaving. Merrick made an in-court identification of defendant as the man he had seen on approximately January 15, 1986.

Merrick further testified that on July 15, 1986, he observed the side of the driver's face as the van went by at approximately 20 miles per hour, and he told his wife to call the police. When the police arrived a few minutes later, Merrick related to an officer "what was going on at the end of the block."

Sergeant Dirk Petry testified that after responding to a suspicious vehicle call at approximately 5:10 p.m. on July 15, 1986, Merrick directed him to the van. Petry looked through the driver's side window as he approached the van and saw defendant walk up from the rear of the van to the driver's seat and noticed D.E. sitting in the rear passenger seat. Petry had both of them exit the van, and D.E.'s clothes were not in disarray when he exited.

In response to Petry's inquiry into "what was going on," defendant stated that they were just having a conversation and D.E. stated that he discovered defendant sucking on his penis when he awoke after having fallen asleep on their ride home. Petry then told defendant to follow him to the police station, and Petry drove D.E. to the station in his squad car.

The defense presented the following evidence in its case in chief. Defendant testified that he had been employed at Thornridge High School for 27 years as a teacher and was married with three children. On July 15, 1986, at 4:20 p.m., he left the church with his two children, Angela Willis, Denise Hubbert, and D.E. after having loaded 20 to 30 bags of paper into his van for eventual recycling. He dropped off his children, ages 8 and 12, at home in South Holland first because his son had to change clothes and eat before a "T-Ball" game at 5:30. Defendant then dropped off Angela Willis and Denise Hubbert in Dolton. At approximately 5 p.m., on his way to drop D.E. off in Midlothian, he stopped a block or two from D.E.'s home to counsel him, parking away from D.E.'s home because D.E. had a communication problem at home and they could not talk there.

At approximately 5:15 p.m., the police arrived while defendant was standing in the aisle by the captain's chairs stacking papers behind the front driver's seat and talking to D.E. The officer knocked on the window and requested that defendant and D.E. exit the van. Upon their exiting the van, the officer asked D.E. his age, to which D.E. first retorted "17," then stated "16." The officer then asked D.E., "Do you always do that?" to which D.E. replied that he was asleep. The officer thereafter instructed D.E. to go into the police car and told defendant to follow them to the station.

Defendant denied committing the acts charged. He had never seen Merrick before trial. He was not in the vicinity of 147th and Mozart Streets on January 15, 1986, but was in school at that time. He also stated that he continually reprimanded D.E. because of his poor behavior and that he had reprimanded him for making sexual advances to defendant's daughter one month prior to the incident.

Denise Hubbert testified that she left the church that day with defendant, D.E., Angela, and defendant's two children. She stated on cross-examination that the newspapers were "way in the back behind the seat" and were not up by the front of the van near D.E. D.E. was awake when defendant dropped her off in Dolton at approximately 4:45 p.m.

Six character witnesses testified that defendant's reputation for truthfulness was outstanding, including a pastor of the First Methodist Church who had known defendant for 16 years, a university director with the Illinois Education Association who had daily contact with defendant as a teacher, and a number of other school teachers.

A neighbor, a cook at the church, and two teachers also testified that D.E. had a bad reputation for truthfulness.

On appeal, we first address defendant's contention that he did not waive his constitutional right to a jury trial. Defendant argues that because the transcripts of proceedings are devoid of any indication that defendant waived a jury trial or that any admonishments were given to defendant regarding his jury rights, because no signed jury waiver exists, and because the only suggestion of defendant's jury waiver is a reference "J/W" on the half sheet, there is no "understanding waiver" as constitutionally and statutorily required. (Ill.Rev.Stat.1985, ch. 38, 103-6, Ill. Const. 1970, art. I, § 8, U.S. Const., amend. VI.) The State responds that the record taken as a whole clearly shows that defendant knowingly and intelligently waived his right to a jury trial and a finding to this effect would be consistent with Illinois case law.

Before addressing the Illinois case law on this issue, it is necessary to outline the chronological history of the case as it relates to the jury issue. On September 18, 1986, attorney Redell appeared on behalf of defendant before Judge Martin McDonough. The court denied Redell's request for a continuance but complied with his oral demand for a jury trial by transferring the case to a jury courtroom. At a hearing before Judge Foxgrover on that same date, Redell requested a continuance and a jury demand. Foxgrover vehemently stated that he would set only one status date and a trial date.

On the October 23, 1986, status date, the court asked Redell whether "this was a definite jury matter," to which he responded "at this time it would definitely be a jury trial." A trial date was then set for February 16, 1987, but was later changed to the 17th after the court notified the parties that the 16th was a court holiday.

On February 17, 1987, attorney John T. Kelly filed his appearance on behalf of defendant. The entry on the half sheet for that date states "PNG JW Trial 2-18-87." A bench trial commenced on that date. The transcript for the 17th indicates that defendant was present at the beginning of the trial, but it does not reflect that the court admonished defendant of his jury rights, nor is there any discussion as to whether the trial was to proceed by bench or jury.

The transcript of the hearing on the post-trial motions on March 17, 1987, reflects a conversation the court had with attorney Kelly with regard to his actions and representations in this matter. Kelly stated that he had "no knowledge [or inquiry of defendant] that he had not waived his jury until the third or fourth witness testified at trial." Kelly...