## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Dere adt, 2013 IL App (2d) 120323

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. ROBERT P. DEREADT, D efe ndant-Appe llant.

District & N o. Second District Docke t No. 2-12-0323

Filed September 30, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The appellate court upheld defe ndant’s conviction for disorderly conduct based on his alleg ed encounte r with two young g irls, notwithstanding his contentions that plain err or occur red when the trial court proce eded with

a 6-per son jury without obtaining defe ndant’s waiver of a 12-per son jury and that the g irls’ identification testimony was vague and uncer tain, since defe nse counsel’s statement that he had spok en t o d efe ndant about whether he wanted a jury of 6 or 12 impl ied t hat defendant participated in the decision to have a jury of 6 and di d n o t m er ely acquie sce in his counsel’s decision, most of the inconsistencies in the g irls’ testimony

wer e un re l ated to their identification of defe ndant, and, under the circ umstances, there was no basis to disturb the jury ’s assessment of their

cre dibilit y

.

Dec ision Under Review Appea l from the Circuit Court of Du Pag e County
, No. 10-CM-2367; the Hon. Kar en M. Wilson, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Thomas A. L ilien and Paul J

. Glaser
, both of State Appellate Def ender ’s Offic e, of Elg in, for appe llant.

Robert B. Be rlin, State’s Attorney
, of Wheaton (L isa Anne Hoffma n and Edwar d R. Psenic k a, Assistant State’s Attorney s, of counsel), for the People.

Panel J USTI CE J ORGENSEN delivere d the judgme nt of the cour t , wi th opinion. Presiding J ustice Bur

ke and J ustic e Hutchinson concur red in the judgme nt and opinion.

OP INION

¶ 1 Def

endant, Robert P. Der eadt, was convicted by a six -per son jury of disorderly conduct (720 I L CS 5/26-1(a) (1) (West 2010)). He ap p ea ls, contending that (1) the trial court committed plain err or b y p ro cee ding with a 6-per son jury without secur ing defe ndant’s
persona l waiver

of a 12- person jury ; and (2) he was not prove d guilty beyond a re asonable doubt wher e the eyewitnesses’ identification of defe ndant and his truck was vague and

uncer tain. We affir

m. ¶ 2 On the date set for tria l, defe ndant’s attorne y told the court:
“Your Honor, we h ad the opportunity to speak with Mr. Der eadt 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 direc tly with defe ndant, who was prese nt. T he followingday , the ca se proc eede d with the selec tion of a six -per son jury

. ¶ 4 Al y ci a C

. t es t i fi ed that, on April 24, 2010, she and Keilee n D., both ag ed 13, beca me bored, so they made a sign say ing “Honk for God” and wa v ed i t at p as s ing car s. Ten to fiftee n minutes later, a black pickup truck drove by them twi ce , then pul led up to the curb and stopped within seven to eig ht fee t of the g irls. Alycia noticed that the truck’s black paint was dull, looking a s if it had been spr ay -painted on the truck. ¶ 5 The man inside the t ruck asked if the g irls had see n his dog. H e said that if they licked “this” he would g ive them $50. Alycia thought that the man was ref err ing to his “privates.” He had something pink and blue in his “upper lap are a.” The man asked them sever al more times. T h ey said “no” eac h time and, afte r the fourth time, told him to g o awa y

. The man drove awa

y and the g irls ran into Keilee n’s house and told her mother, who called the police. ¶ 6 Whil e waiting for detec tives to a rrive, Keilee n drew a picture of the man and his truck.

-2-Alycia de scribed the man as white and bald, we aringa navy blue base ball cap w ith y ellow lettering
, with ha ir under his lip and above his c hin. She could “kind of see” under his c ap. At the police station, the g irls put toge ther composite draw ings of the man and viewed a six

photo lineup. Alycia chose defe ndant’s photo as looking “close st” to the man. Howeve r, she could not identify the m an in the courtroom. She thought that the t ruck was a For d, with a single seat, but she did not see any license plates on it. ¶ 7 Ke i l ee n ’s t es t i m o n y ab o u t t he incident was larg ely consistent with Alycia’ s. She descr ibed the truck’s black paint as “rough” and said that the truck had no license plates. The driver was wh i t e, wore a baseba ll cap, a black shirt, and jeans, and had “kind of like a mustache but shave d off.” He wor e sung lasses at first, but took them of f as he was driving

awa y

. Thus, Keilee n g ot only a “quick g limpse” of his e y es, but she thought that they wer e brown. In court, Keilee n identified defe ndant as the driver. Keilee n co u l d not positively identify the driver from the photo lineup, but she picked two photos as looking simil ar to the driver. ¶ 8 Deputy J oshua Schindlbeck, of the Du Pag e County sheri ff’s o ff i ce , hear d a dispatch about a suspicious flat black truck. Wit hin an hour, he saw a truck matching the descr iption. He and another deputy followed the tr uck and eventua lly pulled it over. Schindlbeck believed that the truck, a

Dodg e cr ew c ab (w ith a second seat), had license plates, and late r that day he wrote in his repor

t that i t d i d

. De fendant, who was driving
, appea red very nervous. He

wore a black baseba ll cap, a black t-shirt, and blue jeans. Schindlbeck asked defe ndant if he had been in the are a looking for a dog
, and he said that he had not. After running defe ndant’s

name throug h the L aw Enforc ement Ag encie s Data Sy stem (L EADS), the deputies allowed him to leave

. S ch i ndlbeck’ s repor t did not make any ref

ere nce to defe ndant having fac ial hair. ¶ 9 Deputy Randall Simps on was dispatched to spe ak with the g irls a t the scene

. The g irls’ mothers agree d to bring them to the police station. After another deputy called about having
sto p p ed a vehicle that looked simil ar to the one the g irls descr ibed, Simps on used the descr iption of the driver to prepa re a photo l ineup. Alycia immediately chose defe ndant’s photo. Keileen se lected photos of de fenda nt and another

man. ¶ 10 L ater that night, Simps on went to defe ndant’s home in Winfield, a couple of miles from the s cene of t he incident. He sa w a f lat black pickup in the driveway

. I t had li cense plates. Def endant said that he had driven in the are a around 4 p.m. to g o to his g randpa rents’ home and put some tools away . He de nied havingcontac t with any g irls that day

. ¶ 11 Simps on later saw the same truck (ba s ed o n d ef endant’ s license plates) at a shopping mall. This time the truck had red stripes on the front h o o d an d on the rea r. He prepa

red a photo lineup of pickup trucks for the g irls. He had rec eived repor ts that Keilee n had seen the

same truck sever al times since the incident (but never mentioned red stripes). The g irls did
not identify any of t he trucks until Simps on pointed out the one with th e re d s t ri p es

. They then agree d that, but for the stripes, that one could have been the one that they saw. ¶ 12 Th e j u ry fo u n d d ef en dant guilty of two counts of disorderly conduct. The trial court
merg ed the c ounts and sentenc ed def endant to 30 day s in jail. Defenda nt timely appea ls. ¶ 13 Def

endant first contends that th e t ri al co u rt err ed by proce eding with a 6-per son jury

-3-without secur ing his persona l waiver of a 12-per son jury

. He conce des that he did not include

this issue in his posttrial motion, but asks that we consider it as plain err or. As the knowing waiver of the right to a jury trial is “fundame ntal,” it implicates the sec ond prongof plainerr or revie w, wher e “re medying the err or is nece ssary to prese rve the integ rity of the judicial
p ro cess.” In re R.A.B.
, 197 I ll. 2d 358, 363 (2001). Thus, we consider whether plain err o r

occur red. ¶ 14 As defe ndant corr ectly notes, the rig ht to a jury trial in a criminal case is guara nteed by both the fede ral a

nd the state c onstitut ions. U.S. Cons t., amend. VI ; I ll. Const . 1970, art. I
, §§ 8, 13. The constitut i o n al ri gh t t o a jury trial is codified in section 115-1 of t he C ode of C riminal Procedur e of 1963 (the Code) (725 I L CS 5/115-1 (West 2010)), which p ro v i d es that “[a]ll prosec utions e x cept on a plea of guilty or guilty but me ntally ill shall be tried by
t h e court and a jury unless the defe ndant waives a jury trial in writing .” The gen er al understanding
, possibly dating back as far as the tenth centur y (725 I L CS Ann

. 5/115-4, Commi ttee Comments–1963, at 23 (S mith-Hurd 2008)), is that a jury consists of 12 members. Thus, the Code provides that, wher e a defe ndant elec ts a trial by jury
, “[t] he jury shall consist of 12 members.” 725 I L CS 5/ 115-4(b) (West 2010). ¶ 15 Neve rtheless, a 12-per son jury is not absolutely require d, for a defe ndant’s rig ht to waive his rig ht to a jury trial entirely nece ssarily includes the rig ht to waive a jury composed of 12 members. People ex rel. Birkett v. Dock ery , 235 I ll. 2d 73, 78 (2009). In People v. Scudieri
, 363 I ll. 84, 87 (1936), the supreme court found no err or in proce eding to trial with a jury of 11 afte r the defe ndant had agree d to the lesser number beca use a full panel was unavailable

. See also People v. Pierce
, 369 I ll. 172 (1938) (same). I n d eed, I llinois courts have consistently held that a criminal defe ndant may waive the participation of the full number of jurors and proce ed with few er than 12. See, e.g. , People v. LaFond
, 343 I ll. App. 3d 981, 985 (2003) (af

ter the jury has retire d to d el iberate and one juror become s unable to serve , defe ndant may agree to proce ed to verdic t with few er than 12); People v. Matthews
, 304 I ll. App. 3d 415, 419-20 (1999) (def endant may waive the rig ht to a jury of 12 and proce ed with

a lesser number, as long as the waiver is aff irmatively shown on the rec ord); People v. Ernst
, 219 I ll. App. 3d 51, 54 (1991) (collec ting case s holding that a defe ndant may waive his rig ht to a jury of 12 and pr ocee d with a lesser number). ¶ 16 Somewhat l ess clear is what is nece ssary for a valid waiver of t h e ri gh t t o a 12-pe rson jury

. In case s involving complete jury waive rs , an o ral waiver by defe nse counsel in the defe ndant’s prese nce, in open court and without objection by the defe ndant
, i s gener ally valid. See People v. Murrell
, 60 I ll. 2d 287, 290 (1975); People v. Sailor
, 43 I ll. 2d 256, 260 (1969). Howeve r, defe ndant cites Matthews for the proposition that the trial court could not proce ed with a 6-person j ury without securing defe ndant’s personal waiver o f a 12-per son jury

. ¶ 17 W e d i s agr ee wi t h defe ndant’s rea ding of Matthews

. The court there re v er s ed t h e defe ndant’s conviction and rema nded for a new trial beca

use “nothing in the rec ord indicates that defe ndant was awa

re of his rig ht to a 12-per son jury

. Nothing in the rec ord indicates that defe ndant agree d to a jury of few er than 12 members, as occur red in [ People v. Quinn
, 46 I ll. App. 3d 579 (1977)], or acquie sced in a jury of six .” Matthews
, 304 I ll. App. 3d at 419. Thus, the court’s primary conce rn was that the defe ndant was not awa re of his rig ht to a 12-per son

-4-jury and could not, under the circ umstances, be deeme d to have acquie sced in a tri al b y a

lesser numbe r. ¶ 18 In Quinn , which Matthews distinguished, defense c ounsel and the pr osecutor, dur ing a confe renc e in the judge ’s chambe rs, agree d to a six -per son jury

. The defe ndant rema ined in the courtroom during this confe renc e. Howeve r, defe nse counsel had informed the defe ndant that he had a rig ht to a 12-per son jury but that he could waive that rig ht and agree to be tried by a 6-per son jury

. Quinn
, 46 I ll. App. 3d at 581. The revie wing court ref used to f ind pla in

err or, noting that the defe ndant’s rig hts wer e explained to him, he did not object at that time, and he had never claimed that he did not understand the rig ht to a 12-per son jury

. Id. at 583. ¶ 19 More rec ently
, in People v. B a r r i er , 3 5 9 I ll. App. 3d 639 (2005), the Third District reje cted the defe ndant’s argument that Matthews require d the def endant’ s persona l waiver of a 12-per son jury

. There
, defe nse counsel stipulated, in the defe ndant’s prese nce, to selec t 12 jurors with no alternates. When a juror beca me ill, the trial proce eded with 11 jurors. The
court held that defe nse counsel’s stipulation in the defe ndant’s prese nce to proce ed with no alternate jurors strong ly

implied the defe ndant’s aw are ness of the right to a 12- person jury and her acquie scenc e in proce eding with less t h an that number if a juror beca me ill. Id. at 643-44. ¶ 20 Her e, def

en s e co u n s el s t ated that she had spoken with defe ndant “about whether he would want a jury of six and twelve.” This was sufficie nt under Quinn and Barrier

. In fac t, 1 this case is strong er than those case s beca use counsel’s statement implies that defe ndant actively participated in the dec ision rather tha n mere ly acquie scingin counsel’s de cision. ¶ 21 Def

endant next contends that he was not proved guilty beyon d a re as o n ab l e doubt, beca use the g irls’ identification of him and his truck was vague and uncer tain. We disag ree

. ¶ 22 Where a defe ndant challeng es on appea l the sufficie ncy of the evidenc e, we ask whe ther, afte r viewing all the evidenc e in the light most fa vorable to the prosec ution, a rational trier of fact could have found the elements of t he offense beyond a reasonable doubt. People v. Beauc hamp
, 241 I ll. 2d 1, 8 (2011). We may not substitut e our judgme nt for that of the trier of fac t on questions involving the weight of the evidenc e, the cre dibilit y of the witnesses, or the resolution of conflicting testimony

. People v. Campbell
, 146 I ll. 2d 363, 375 (1992). A positive identification by a single wi t n es s wh o had a sufficie nt opportunity to observe the defe ndant is enough to support a conviction. People v. Johnson
, 114 I ll. 2d 170, 189 (1986). Howeve r, a doubtful, vague, or uncer tain identification will not support a conviction. People v. Slim , 127 I ll. 2d 302, 307 (1989). ¶ 23 Neve rtheless, courts have consistently rec og nized that vague or discrepa nt descriptions do not ne cessa

rily rende r identifications unreliable
, beca use very few witnesses are trained
to be keen observe rs. See, e.g. , People v. W illiams
, 118 I ll. 2d 407, 413-14 (1987) (witness’s failure to mention the defe ndant’ s facial hair did not rende r her identification unreliable ); People v. Nims
, 156 I ll. App. 3d 115, 120-21 (1986) (vi cti m’s failure to mention the defe ndant’s fac ial scar s did not rende r her identification unreliable ); see also People v. Bias
,

Def ens e cou nse l pro bab ly m ean t to say “si x or twe lve,” but def end ant doe s not ar gue tha t 1

cou nse l’ s s ta te m ent to th e c our t c onf use d hi m

.

-5-131 I ll. App. 3d 98, 104-05 (1985) (inac cura cies pertaining to th e “presenc e or absenc e of

a bear d, mustache, or tattoo, whether the assailant had missing teeth, and the assailant’s heig ht, weight and complexion, do not rende r a n id e nti f ic a ti o n utt e r ly inadmissible”). Indeed, “ ‘[t] he cre dibility of an identification does not rest upon the ty pe o f fac ial descr iption or other phy sical features which the complaining witness is able to relate. [C itation.] I t depends rathe r upon whether the witness had a full and adequat e opportunity to observe the defe ndant.’ ” People v. Robinson
, 206 I ll

. App. 3d 1046, 1051 (1990) (quoting People v. W itherspoon , 33 I ll. App. 3d 12, 19 (1975)). ¶ 24 I llinois courts consi d er fi v e fa ct ors, commonly known as the Biggers fac tors, when deter mining whether a witness’s identification is reliable

. People v. Piatkowski
, 225 I ll. 2d 551, 567 (2007) (citing Neil v. Biggers
, 409 U.S. 188, 199-200 (1972))

. The Biggers fac tors include: (1) the witness’s opportunity to view the offe nder at the time of the offe nse; (2) the witness’s degree of attention at the time of the offe nse; (3) the acc urac y of the witness’s

ear lier descr iption of the offe nder; (4 ) t h e l ev el of cer tainty shown by the witness when confr onting th e al l eged offe nder; and (5) the leng th of time betwee n the offe nse and the identification confr ontation. Biggers
, 409 U.S. at 199; Slim
, 127 I ll. 2d at 307-08. In addition
to these specific fac tors, courts also consider the totality of th e circ umstances when revie wing the reliability of an identification. Biggers
, 409 U.S. at 199-200; People v. Smith
, 299 I ll. App. 3d 1056, 1062 (1998). ¶ 25 Her e, both g irls positively identified defendant as t h e d ri ver of the truck. I t is true that Alycia identified defe ndant in the photo l ineup but not in court, while Keilee n identified defe ndant in court but could not pick him out of the photo lineup. Howeve r, Keilee n selec ted defe ndant’s photo as one of two that looked simil ar to the driver. Moreove r, Al y ci a’s inability to identify defe ndant in court does not nece ssarily destroy the validity of her ear lier identification of him f

rom the photo lineup. Earlier identifications ar e admissible de spite a witness’s inability

to make an in-court identification. People v. Gonzalez
, 292 I ll. App. 3d 280, 287 (1997) (“A reliable identification occur ring only minutes afte r the crime should not be kept from the jury solely beca use the witness is unable, sever al months later and under the
pressure of t esti fy i n g i n court, to identify the defendant.” ). The g irls appea red to have had

a sufficie nt opportunity to view defe ndant, as they wer e within eight fee t of the truck and the
encounte r went on for some time. T hey wer e clea rly attentive, as they eng ag ed with him in a brie f conve rsation, and the photo lineup oc curr ed within hours of the of fense

. ¶ 26 Fu rt her, it is undisputed that, with one exception, defen d an t m at ch ed t h e gen er al descr iptions the girls g ave. Mor eover , he drove a blac k pickup, as they descr ibed, and wa s stopped by a police office r near the scene less than an hour afte r the offe nse. Contacted later
at his home
, which was less than two miles f rom the scene , he admitted having been in the

are a on the da

y in question, although he denied talkingto the g irls. ¶ 27 Def

endant points to various inconsistencies in the g irls’ descriptions of the offe nder. H e contends, for example, that the g irls descr ibed the offe nder as bald while defe ndant has hair. Keilee n testified that the offe nder had brown eyes, but she claimed that he wore sung lasses during most of the incident and that she g ot only a “quick gl i m p s e” of his eyes when he

remove d the g lasses while driving awa y

. He complains that the g irls inconsistently descr ibed his fac ial hair and notes that, while both g irls testified that defe ndant had some f acia l hair,

-6-Schindlbeck made no mention in his report of any fac ial hair. ¶ 28 As noted, identifications are usually based on overa ll impressions rathe r than on specific features. Robinson
, 206 I ll. App. 3d at 1051. Def endant does not c ontend that the g irls ha d

an inadequate opportunity to observe the offe nder or that an y o f t h e proce dures used to identify the offe nder wer e unduly sug g estive. Rather, he complains o n l y ab o u t the g irls’ descr iptions of “phy sical features.” As noted, both g irls testified consi s t en t l y that the offe nder wore a hat. Thus, their failure to notice defe ndant’s hair is not unrema rkable
, espec ially g iven defe ndant’s admitte dly “hig h fore head.” Def endant char acte rizes their testimony that he was bald as “ra nk speculation,” but it would have been equally speculative
to testify that he had hair. The jury was a war e that the of

fende r wa s wea

ringa hat and that
any testimony about his hair or lack there of was nece ssarily speculative. Simi larly
, the g irls testified consistently that the offe nder wore sung lasses during the incident, and thus the jury

was awa re that any testimony about the color of his eyes was suspect. Howeve r, these fac ts did not require the jury to reje ct their ultimate i d enti fication of defe ndant as the offe nder. That Schindlbeck did not note d ef en d an t’s fac ial hair also does not undermine the identification of defe ndant as the offe nder. The office r did not testify that the man he stopped did not have fa cial hair ; his report mere ly failed to note a

ny

. ¶ 29 Def

endant also contends, howeve r, that th e gi rl s ’ d es cr i p tion of the truck was fatally flawe d. He notes that they descr ibed the truc k as havingno license pla tes and no ba ckseat, and that Alycia thought it was a For d, wher eas the truck was a Do dg e cre w cab and had license plates when stopped an hour afte r the incident. These are the ty pes of omissions that, like the failure to notice scar s and fac ial hair, do not automatically invalidate a later identification. Even discounting the possibili ty that defe ndant, bent on mischief, temporar ily

remove d or cover ed the license plates, the g irls appar ently saw the truck primarily from the side, so their failure to notice license plates could be forg iven. Moreove r, the g irls’ attention was focused on defe ndant, who was speaking to them, so their failure t o corr ectly identify the make of

the truck or

to notice spec ific deta ils about it i s unremar kable. ¶ 30 Def

endant argues that the g irls picked his truck out of a photo lineup only afte r Simpson
sug g ested that they look at the photo of the truck with red stripes. Both g irls then conclude d that, without the s tripes, t he truck could have been the one that they saw. The signific ance of t his is not rea dily appar ent. Defenda nt, not his truck, was char g ed with the offe nse, and both g irls id en t i fied him as the offe nder. Whil e a lineup must not be unduly sug g estive in identifying an o ff

en d er, it is not clea

r how the sug g estive truck lineup aff ecte d the g irls’ identification of de fenda

nt. ¶ 31 Finally
, defe ndant points out that Keilee n’s draw ing of the truck does not include running boards. The draw ing does contain a fi n e d o ub l e line under the door that could repr esent a running board, but, in any event, we wil l not reve rse de fenda nt’s conviction bec ause a 13-
y ear -old’s cr

ude line-dr awingof his truck fa ils to i nclude a runningboard. ¶ 32 Def

endant lists other examples of what he considers flaws in the g irls’ testimony . Most of these have nothing to do with the issue of his identifi ca t i o n

. Defendant appar ently lists seriatim ever

y point on which one or both of the g irls was or could have been impeache d and invites us to assess their cre dibilit y differ ently th an the jury did. We must decline the

-7-invitation, as the jury is the ultimate arbiter of witness cre dibilit y

. See Campbell
, 146 I ll. 2d

at 375. ¶ 33 The judg ment of the c ircuit court of Du Pag e County

is affirme d.

¶ 34 Affir

med.

-8-