People v. Dereadt

• Decision Date: 30 September 2013
• Docket Number: No. 2–12–0323.,2–12–0323.
• Citation: 2013 IL App (2d) 120323,375 Ill.Dec. 491,997 N.E.2d 802
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Robert P. DEREADT, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (2d) 120323

997 N.E.2d 802

375 Ill.Dec. 491

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Robert P. DEREADT, Defendant–Appellant.

No. 2–12–0323.

Appellate Court of Illinois, Second District.

Sept. 30, 2013.

Thomas A. Lilien, Paul J. Glaser, State Appellate Defender's Office, Elgin, for appellant.

Robert B. Berlin, State's Attorney, Wheaton (Lisa Anne Hoffman, Edward R. Psenicka, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

¶ 1 Defendant, Robert P. Dereadt, was convicted by a six-person jury of disorderly conduct (720 ILCS 5/26–1(a)(1) (West 2010)). He appeals, contending that (1) the trial court committed plain error by proceeding with a 6–person jury without securing defendant's personal waiver of a 12–person jury; and (2) he was not proved guilty beyond a reasonable doubt where the eyewitnesses' identification of defendant and his truck was vague and uncertain. We affirm.

¶ 2 On the date set for trial, defendant's attorney told the court:

“Your Honor, we had the opportunity to speak with Mr. Dereadt about the scheduling and about whether he would want a jury of six and twelve, and at this time, he's asking for a jury of six.”

¶ 3 The trial court did not discuss the matter directly with defendant, who was present. The following day, the case proceeded with the selection of a six-person jury.

¶ 4 Alycia C. testified that, on April 24, 2010, she and Keileen D., both aged 13, became bored, so they made a sign saying “Honk for God” and waved it at passing cars. Ten to fifteen minutes later, a black pickup truck drove by them twice, then pulled up to the curb and stopped within seven to eight feet of the girls. Alycia noticed that the truck's black paint was dull, looking as if it had been spray-painted on the truck.

¶ 5 The man inside the truck asked if the girls had seen his dog. He said that if they licked “this” he would give them $50. Alycia thought that the man was referring to his “privates.” He had something pink and blue in his “upper lap area.” The man asked them several more times. They said “no” each time and, after the fourth time, told him to go away. The man drove away and the girls ran into Keileen's house and told her mother, who called the police.

¶ 6 While waiting for detectives to arrive, Keileen drew a picture of the man and his truck. Alycia described the man as white and bald, wearing a navy blue baseball cap with yellow lettering, with hair under his lip and above his chin. She could “kind of see” under his cap. At the police station, the girls put together composite drawings of the man and viewed a six-photo lineup. Alycia chose defendant's photo as looking “closest” to the man. However, she could not identify the man in the courtroom. She thought that the truck was a Ford, with a single seat, but she did not see any license plates on it.

¶ 7 Keileen's testimony about the incident was largely consistent with Alycia's. She described the truck's black paint as “rough” and said that the truck had no license plates. The driver was white, wore a baseball cap, a black shirt, and jeans, and had “kind of like a mustache but shaved off.” He wore sunglasses at first, but took them off as he was driving away. Thus, Keileen got only a “quick glimpse” of his eyes, but she thought that they were brown. In court, Keileen identified defendant as the driver. Keileen could not positively identify the driver from the photo lineup, but she picked two photos as looking similar to the driver.

¶ 8 Deputy Joshua Schindlbeck, of the Du Page County sheriff's office, heard a dispatch about a suspicious flat black truck. Within an hour, he saw a truck matching the description. He and another deputy followed the truck and eventually pulled it over. Schindlbeck believed that the truck, a Dodge crew cab (with a second seat), had license plates, and later that day he wrote in his report that it did. Defendant, who was driving, appeared very nervous. He wore a black baseball cap, a black t-shirt, and blue jeans. Schindlbeck asked defendant if he had been in the area looking for a dog, and he said that he had not. After running defendant's name through the Law Enforcement Agencies Data System (LEADS), the deputies allowed him to leave. Schindlbeck's report did not make any reference to defendant having facial hair.

¶ 9 Deputy Randall Simpson was dispatched to speak with the girls at the scene. The girls' mothers agreed to bring them to the police station. After another deputy called about having stopped a vehicle that looked similar to the one the girls described, Simpson used the description of the driver to prepare a photo lineup. Alycia immediately chose defendant's photo. Keileen selected photos of defendant and another man.

¶ 10 Later that night, Simpson went to defendant's home in Winfield, a couple of miles from the scene of the incident. He saw a flat black pickup in the driveway. It had license plates. Defendant said that he had driven in the area around 4 p.m. to go to his grandparents' home and put some tools away. He denied having contact with any girls that day.

¶ 11 Simpson later saw the same truck (based on defendant's license plates) at a shopping mall. This time the truck had red stripes on the front hood and on the rear. He prepared a photo lineup of pickup trucks for the girls. He had received reports that Keileen had seen the same truck several times since the incident (but never mentioned red stripes). The girls did not identify any of the trucks until Simpson pointed out the one with the red stripes. They then agreed that, but for the stripes, that one could have been the one that they saw.

¶ 12 The jury found defendant guilty of two counts of disorderly conduct. The trial court merged the counts and sentenced defendant to 30 days in jail. Defendant timely appeals.

¶ 13 Defendant first contends that the trial court erred by proceeding with a 6–person jury without securing his personal waiver of a 12–person jury. He concedes that he did not include this issue in his posttrial motion, but asks that we consider it as plain error. As the knowing waiver of the right to a jury trial is “fundamental,” it implicates the second prong of plain-error review, where “remedying the error is necessary to preserve the integrity of the judicial process.” In re R.A.B., 197 Ill.2d 358, 363, 259 Ill.Dec. 24, 757 N.E.2d 887 (2001). Thus, we consider whether plain error occurred.

¶ 14 As defendant correctly notes, the right to a jury trial in a criminal case is guaranteed by both the federal and the state constitutions. U.S. Const., amend. VI; Ill. Const. 1970, art. I, §§ 8, 13. The constitutional right to a jury trial is codified in section 115–1 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115–1 (West 2010)), which provides that “[a]ll prosecutions except on a plea of guilty or guilty but mentally ill shall be tried by the court and a jury unless the defendant waives a jury trial in writing.” The general understanding, possibly dating back as far as the tenth century (725 ILCS Ann. 5/115–4, Committee Comments–1963, at 23 (Smith–Hurd 2008)), is that a jury consists of 12 members. Thus, the Code provides that, where a defendant elects a trial by jury, “[t]he jury shall consist of 12 members.” 725 ILCS 5/115–4(b) (West 2010).

¶ 15 Nevertheless, a 12–person jury is not absolutely required, for a defendant's right to waive his right to a jury trial entirely necessarily includes the right to waive a jury composed of 12 members. People ex rel. Birkett v. Dockery, 235 Ill.2d 73, 78, 335 Ill.Dec. 592, 919 N.E.2d 311 (2009). In People v. Scudieri, 363 Ill. 84, 87, 1 N.E.2d 225 (1936), the supreme court found no error in proceeding to trial with a jury of 11 after the defendant had agreed to the lesser number because a full panel was unavailable. See also People v. Pierce, 369 Ill. 172, 15 N.E.2d 845 (1938) (same). Indeed, Illinois courts have consistently held that a criminal defendant may waive the participation of the full number of jurors and proceed with fewer than 12. See, e.g., People v. LaFond, 343 Ill.App.3d 981, 985, 278 Ill.Dec. 800, 799 N.E.2d 518 (2003) (after the jury has retired to deliberate and one juror becomes unable to serve, defendant may agree to proceed to verdict with fewer than 12); People v. Matthews, 304 Ill.App.3d 415, 419–20, 237 Ill.Dec. 894, 710 N.E.2d 524 (1999) (defendant may waive the right to a jury of 12 and proceed with a lesser number, as long as the waiver is affirmatively shown on the record); People v. Ernst, 219 Ill.App.3d 51, 54, 161 Ill.Dec. 828, 579 N.E.2d 376 (1991) (collecting cases holding that a defendant may waive his right to a jury of 12 and proceed with a lesser number).

¶ 16 Somewhat less clear is what is necessary for a valid waiver of the right to a 12–person jury. In cases involving complete jury waivers, an oral waiver by defense counsel in the defendant's presence, in open court and without objection by the defendant, is generally valid. See People v. Murrell, 60 Ill.2d 287, 290, 326 N.E.2d 762 (1975); People v. Sailor, 43 Ill.2d 256, 260, 253 N.E.2d 397 (1969). However, defendant cites Matthews for the proposition that the trial court could not proceed with a 6–person jury without securing defendant's personal waiver of a 12–person jury.

¶ 17 We disagree with defendant's reading of Matthews. The court there reversed the defendant's conviction and remanded for a new trial because “nothing in the record indicates that defendant was aware of his right to a 12–person jury. Nothing in the record indicates that defendant agreed to a jury of fewer than 12 members, as occurred in [People v. Quinn, 46 Ill.App.3d 579, 4 Ill.Dec. 846, 360 N.E.2d 1221 (1977) ], or acquiesced in a jury of six.” Matthews, 304 Ill.App.3d at 419, 237 Ill.Dec. 894, 710 N.E.2d 524. Thus, the court's primary concern was that the defendant was not aware of...