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People v. Hansen

August 25, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KENNETH HANSEN, DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of Cook County. No. 94 CR 21926. Honorable Mary Ellen Coghlan, Judge Presiding.

[7] The opinion of the court was delivered by: Presiding Justice Hoffman

[8]  This appeal comes before us following a second jury trial in which, the defendant, Kenneth Hansen, was convicted of the 1955 murders of 13-year old Robert Peterson, 13-year old John Schuessler, and 11-year old Tony Schuessler. Having elected to be sentenced under the Unified Code of Corrections of 1973 (Ill. Rev. Stat. 1973, ch. 38, par. 1001-1-1 et seq.), the defendant was sentenced to concurrent prison terms of not less than 200 years and not more than 300 years. On appeal, the defendant contends that: (1) the circuit court erred in refusing to admit certain exculpatory evidence under the former testimony exception to the hearsay rule; (2) he was deprived of due process by the State's failure to correct a key witness's false testimony; and (3) the circuit court erred in allowing certain prejudicial testimony implicating him in another crime. For the reasons which follow, we affirm.

[9]  The defendant was first convicted of the murders following a jury trial in 1995. While his direct appeal was pending, the defendant filed a petition for post-conviction relief, seeking a new trial on the ground that he had newly discovered evidence of his innocence consisting of a statement made by Joyce Saxon implicating her ex-husband in the murder of the three boys. Following an evidentiary hearing, the circuit court denied the defendant's post-conviction petition. The defendant's appeal from the denial of his post-conviction petition was consolidated with his direct appeal. In that appeal, this court found that certain evidence had been improperly admitted at trial and, as a consequence, reversed the defendant's convictions and remanded the case to the circuit court for a new trial. People v. Hansen, 313 Ill. App. 3d 491, 729 N.E.2d 934 (2000). In light of our remand for a new trial, the defendant's appeal from the denial of his post-conviction petition was rendered moot. Hansen, 313 Ill. App. 3d at 508.

[10]   A second jury trial, which is the subject of the instant appeal, was held in 2002. The State presented the following evidence at trial.

[11]   Ernest Niewiadomski testified that, shortly after 7:30 p.m. on October 16, 1955, he saw the victims at a bowling alley wearing baseball jackets. According to Ralph Helm, sometime between 8:30 and 9 p.m., he saw a boy he later identified as Tony Schuessler hitchhiking on the street, and two other boys dressed in "sports jackets" standing nearby. Hetty Salerno testified that, at approximately 9:30 p.m., she heard two screams coming from the direction of the Idle Hours Stable, which was located near the forest preserves where the victims' unclothed bodies were discovered two days later.

[12]   Dr. Edmond Donoghue, who was qualified as an expert in the field of forensic pathology, opined that Tony Schuessler was manually strangled, John Schuessler had been strangled in a manner consistent with a choke hold, and Robert Peterson had been strangled with an item such as a belt or rope. On cross-examination, the doctor testified that he found no evidence of oats, hay, horse manure, barley, horse feed, or animal hair on the victims' bodies. He further stated that, although the bodies were found unclothed, there was no evidence of semen or anal penetration.

[13]   Herbert Hollatz testified that, in 1952, when he was in his early 20's, he lived and worked for the defendant at the Park Ridge Stable for three or four months. After leaving the stable, Hollatz again saw the defendant in October 1955, at which time he told Hollatz that he wanted to talk to him about something. According to Hollatz, the defendant told him that he "was the one [who] killed them three boys" a week earlier. The defendant said that someone told him to kill the boys and threatened that, if Hollatz told anyone, the defendant's brother, Curtis, "would take care of things." Hollatz stated that he first told the authorities about the incident when he was approached by an assistant State's Attorney in April 1995.

[14]   Patrick Mason had testified at the defendant's first trial but, because he had died in 1997, his prior testimony was read to the jury. Mason stated that, in 1956, when he was 11 years old, he worked at the Bro-Ken H Stables on the weekends and one day walked in on the defendant performing oral sex on a 15-year old boy. The defendant later approached Mason and told him that, if he told anyone what he had seen, he would "wind up in the woods like those other boys."

[15]   Roger Spry testified that he began living with the defendant's family in 1960 when he was 10 or 11-years old and continued to live with them for approximately 20 years. Spry stated that, when he was about 15-years old, the defendant had told him that he once picked up three boys, took them to a barn, and then sent the older boy off to do something so he had the two younger boys alone. According to the defendant, he was having sex with the two younger boys when the older boy walked in on them and threatened to report what the defendant had done. The defendant told Spry that he grabbed the older boy's throat and accidentally choked him to death, leaving him no choice but to kill the other two boys. He also told Spry that Silas Jayne arrived and helped him dump the bodies off in the forest preserves. Spry stated that the defendant referred to one of the boys as "Peterson." He testified that, several months later, the defendant caught him pocketing money from riders at the stable and told him, "you're going to end up just like that Peterson boy." Spry acknowledged that he first told law enforcement officials about the defendant's statements in August 1994 while facing prosecution for arson and that, in exchange for his testimony in this case, his sentence in the arson case was being reduced.

[16]   William Wemette testified that he lived at the Sky High Stables "off and on" between 1968 and 1970 during which time he had "at least a dozen" conversations with the defendant about the murders. During these conversations, the defendant had asked Wemette if he knew about "the Peterson boys", stating that it was a very famous case. The defendant told Wemette that he picked up the three boys hitchhiking and took them to the Idle Hours Stable. According to Wemette, the defendant told him that he sent the two older boys away and took the younger boy into a room, where he performed oral sex on the boy. When he finished, the other two boys walked in and threatened to call the police or their parents. The defendant told Wemette that he called his brother, Curt, for assistance. The defendant further stated that Curt injured one of the boys with a blunt instrument and then helped him choke the boys. The defendant told Wemette that, in order to avoid getting caught by the police, he had moved to the south side of Chicago and that someone had burned down the Idle Hours Stable for him. On cross-examination, Wemette admitted that he had been a paid informant for the Federal Bureau of Investigations from 1971 through 1989. He testified that he provided information to the government in the defendant's case, and stated that he was reimbursed for expenses and was also given a "reward", but could not remember the exact amount.

[17]   Joe Plemmons testified that he began leasing part of the Sky High Stables from the defendant in 1972 and became good friends with him during that time. Plemmons stated that, in May 1972, the defendant told him that his brother, Curt, "held those boys over his head like a club." According to Plemmons, sometime in 1976, he and the defendant had a conversation during which the defendant commented that "it was either those boys or him" because "in 1955 you couldn't be gay." On another occasion in 1988, Plemmons brought up the subject of the three murders and the defendant confided that he worried about being caught some day. Plemmons admitted that he had been convicted of fraud and has been known by several aliases. Plemmons also admitted that he came forward with the information relating to the defendant in November 1994 because he believed that the defendant had lied to him about "what happened to his wife Beverly." Following Plemmons' testimony, the State rested.

[18]   The defendant presented the testimony of three witnesses who stated that he did not work at the Idle Hours Stable during the relevant time period. Frank Jayne, whose testimony from the first trial was read to the jury, testified that from 1950 to 1960, his brother, Silas, owned the Idle Hours Stable and that the defendant did not work there. Barbara Ashbaugh, who was an instructor at the stable in 1954, stated that she never saw the defendant there. Finally, Dorothy Jayne testified that the defendant did not work at the stable from 1954 to 1966 while she worked there.

[19]   Dr. Shaku Teas, qualified as an expert in forensic pathology, testified that, after reviewing the victims' autopsy reports, it was her opinion that the deaths of John and Tony Schuessler occurred within two to three hours after they ingested their last meal which, according to their parents, was at approximately 1:30 p.m. The defense then rested.

[20]   In the State's rebuttal, Dr. Donoghue stated that he disagreed with Dr. Teas' opinion regarding the victims' time of death. It was Dr. Donoghue's opinion that examining digestive rates is an unreliable method of determining a person's time of death. Lance Williamson testified in rebuttal that the defendant had told him that he worked for Silas Jayne at the Idle Hours Stable in the 1950's. Dave Hamm, a former investigator with the Illinois State Police, similarly testified that the defendant told him that he had worked for Jayne at the Idle Hours Stable.

[21]   The jury subsequently found the defendant guilty of the first degree murder of the three boys. The defendant was sentenced to concurrent prison terms of not less than 200 years and not more than 300 years. Thereafter, the defendant filed a motion for a new trial, which the circuit court denied. He now appeals.

[22]   The defendant first contends that the circuit court erred in refusing to admit the prior testimony of Joyce Saxon under the "former testimony exception" to the hearsay rule.

[23]   The record shows that, while the defendant's direct appeal following his first trial was pending, he filed a post-conviction petition alleging, inter alia, that he had newly discovered evidence of his innocence consisting of Saxon's statement that her ex-husband, Jack Reiling, had admitted to committing the murders. In 1998, an evidentiary hearing was held on the defendant's post-conviction petition, and the crux of Saxon's testimony at the hearing was that, a few months after the murders occurred, she and Reiling had a heated argument, at which time, Saxon screamed, "And you killed those three boys, didn't you", to which Reiling responded, "Yes, I did." The circuit court, finding Saxon to be an incredible witness, denied the defendant's post-conviction petition.

[24]   On remand for a new trial, the defendant filed a "motion in limine to admit [the] extra-judicial confession of Jack Reiling", and attached in support thereof portions of Saxon's testimony from the post-conviction hearing relating to Reiling's alleged confession. After assessing the factors set forth in Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed. 2d 297 (1973), relating to the admissibility of extra-judicial third-party confessions, the circuit court granted the defendant's motion. Approximately a week before the second trial was scheduled to begin, however, defense counsel filed a motion to admit the prior post-conviction testimony of Saxon, along with the testimony of Frank Jayne from the first trial. According to the motion, both Saxon and Jayne were physically and mentally unable to testify at the defendant's second trial. With respect to Saxon, specifically, defense counsel attached an unsworn letter, dated July 19, 2002, from her psychiatrist, Dr. Michael Brilliant, stating that Saxon's physical and mental health had deteriorated over the past several years, that she was being treated for major depressive disorder since 1997, that her testimony would not be accurate due to her memory impairment, and that the stress of testifying could exacerbate her illness. Also attached to the motion was an unsworn letter, dated June 19, 2002, from her treating physician, Dr. Reinhold Llerena, stating that, "[f]rom a physical standpoint[,] [Saxon] may be able to endure a short period in court, but I highly doubt she would be able to withstand a full day of courtroom hardship."

[25]   At the hearing held on the defendant's motion, the State argued that it had just received psychiatric records relating to Saxon a few days earlier and that, had defense counsel turned them over in 1998, the State could have investigated the matter. Defense counsel responded that he had no doubts about Saxon's competency to testify in 1998, but became concerned about her mental and physical ability when he went to see her six months before trial. According to defense counsel, it was at that time that he asked Saxon's family to contact her doctors for their opinions on this matter. After considering the parties' arguments, the trial judge denied the defendant's motion, stating:

[26]   "Based on the allegations set forth in Defendant's motion to admit the prior testimony of Joyce Saxon and Frank Jane, [sic] Sr.[,] as a matter of law, there is not a sufficient basis upon which this Court could conclude that either witness is legally unavailable for purposes of the former testimony exception to the Hearsay Rule. Based on what has been presented to this Court to date, the motion is denied.

[27]   Certainly, if further information becomes available, I would not preclude you from bringing that to the Court's attention. But based on the two letters introduced in support of the motion, it is denied."

[28]   The defendant did not provide any further documentation in support of Saxon's alleged physical or mental impairment. He did, however, supplement his motion to admit Jayne's prior testimony with detailed sworn affidavits about his physical and mental condition. The ...


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