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.
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
537 N.E.2d 1048, 182 Ill. App. 3d 268, 130 Ill. Dec. 719 1989.IL.537
Appeal from the Circuit Court of Cook County; the Hon. Paul Foxgrover, Judge, presiding.
JUSTICE BUCKLEY delivered the opinion of the court. MANNING, P.J., and CAMPBELL, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY
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's 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 girls in defendant's van. After defendant dropped off the two girls at their homes in Dolton, Illinois, D.E. fell asleep in the backseat 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 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. ...