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Gary A. Gauger v. Beverly Hendle

June 28, 2011

GARY A. GAUGER,
PLAINTIFF-APPELLANT,
v.
BEVERLY HENDLE, EUGENE LOWERY, AND CHRISTOPHER PANDRE IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES; THE OFFICE OF THE MCHENRY COUNTY SHERIFF, AND THE COUNTY OF MCHENRY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of McHenry County. No. 03-LA-292 Honorable Maureen P. McIntyre Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Jorgensen

PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Burke concurred in the judgment and opinion.

OPINION

Plaintiff, Gary A. Gauger, sued defendants, Beverly Hendle, Eugene Lowery, Christopher Pandre, the office of the McHenry County sheriff, and the County of McHenry*fn1 to recover damages for his arrest, conviction, and incarceration for the 1993 murders of his parents, Morris and Ruth Gauger. Following a trial on counts alleging malicious prosecution, conspiracy to maliciously prosecute, and indemnification, a jury rendered a verdict and answered special interrogatories in defendants' favor. Plaintiff appeals, arguing that the trial court erred in excluding: (1) this court's order on plaintiff's direct appeal of his conviction; and (2) evidence showing how the "actual murders" were committed and how the "real killers" were discovered. We affirm.

I. BACKGROUND

A. Proceedings Prior to the Current Lawsuit

In October 1993, a jury convicted plaintiff of the April 1993 murders of his parents. On January 11, 1994, plaintiff was sentenced to death. On September 22, 1994, his sentence was reduced to two sentences of life imprisonment without parole.

In 1995, while plaintiff's direct appeal was pending, federal authorities were investigating the Outlaw Motorcycle Club, a gang. On about August 31, 1995, Outlaw member Mark Quinn, who was being held in the Du Page County jail, contacted Sandra DeValkenaere, a federal Alcohol, Tobacco, and Firearms agent. On September 2, 1995, Quinn told DeValkenaere that Outlaw members Randall Miller and James "Preacher" Schneider killed plaintiff's parents during a robbery. Information concerning the federal investigation was first provided to the McHenry County State's Attorney's office in late 1995.

On March 8, 1996, this court reversed plaintiff's conviction and remanded the cause for a new trial. People v. Gauger, No. 2-94-1199 (1996) (unpublished order under Supreme Court Rule 23). We held that, when the police originally took plaintiff in for questioning, they placed him in custody but lacked probable cause to do so; there was no probable cause until plaintiff made incriminating statements at the police station. Id. at 27-28. We also held that plaintiff's incriminating statements should have been suppressed because they constituted the fruits of the illegal arrest. Id. at 29. Finally, we determined that the evidence was sufficient to prove plaintiff guilty beyond a reasonable doubt and, accordingly, we remanded the cause for a new trial. Id. at 29-30.

In August 1996, plaintiff was released on home monitoring, pending the Illinois Supreme Court's decision on the State's petition for leave to appeal our decision. On October 4, 1996, following the supreme court's denial of the State's petition for leave to appeal (People v. Gauger, 168 Ill. 2d 606 (1996) (table)), the McHenry County State's Attorney dismissed by nolle prosequi the charges against plaintiff.*fn2

On June 10, 1997, Schneider and Miller were arrested and Schneider confessed to the Gauger murders. Schneider later pleaded guilty to the murders, and Miller was convicted of federal racketeering charges that included the Gauger murders as predicate acts. In June 1997, after his arrest, Miller shared a cell block in the Waukesha County, Wisconsin, jail with Christopher Ignasiak. Over the next few weeks, Ignasiak kept notes of his conversations with Miller. Jail officials discovered the notes during a random search of Ignasiak's cell. The notes reflected that Miller had said that he was paid $3,000 "by the farmers' son" to "take out" the Gaugers; that Schneider had helped him; and that, if he had the opportunity, Miller would "slice" Schneider's throat as he did the Gaugers' for having told on him. Ignasiak submitted to questioning by federal investigators.

On October 1, 1999, plaintiff filed suit in federal court, raising both federal and state law claims against defendants for his alleged wrongful arrest and malicious prosecution. On September 24, 2002, the district court granted summary judgment in defendants' favor on the federal claims and declined supplemental jurisdiction over the state claims. Gauger v. Hendle, No. 99 C 50322, 2002 WL 31130087 (N.D. Ill. Sept. 24, 2002). On December 19, 2002, the Governor pardoned plaintiff based on plaintiff's innocence.

On October 30, 2003, the Seventh Circuit affirmed the dismissal of plaintiff's federal claims, except his false arrest claim. Gauger v. Hendle, 349 F.3d 354, 359 (7th Cir. 2003), overruled on other grounds, Wallace v. City of Chicago, 440 F.3d 421 (7th Cir. 2006), aff'd, Wallace v. Kato, 549 U.S. 384 (2007). Subsequently, the district court dismissed with prejudice the federal false arrest claim.

B. Current Lawsuit

On September 23, 2003, plaintiff filed a five-count complaint in state court against defendants alleging malicious prosecution, false imprisonment, intentional infliction of emotional distress, and conspiracy and seeking damages under the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 2002)). After summary judgment was granted in defendants' favor on several counts, a trial proceeded on the counts alleging malicious prosecution, conspiracy to maliciously prosecute, and indemnification.

Trial commenced on August 12, 2009.

1. Plaintiff

Plaintiff, age 57, testified that he works as an organic vegetable farmer on his parents' farm, which is in Richmond, off of Route 173. In 1993, plaintiff, who was then age 41, lived on the farm with his parents, Morris (age 72) and Ruth (69). In addition to farming, plaintiff's parents also ran (on the farm) a motorcycle repair shop and sold rugs. Plaintiff and his parents lived in the farmhouse. The rugs were sold from a trailer on the property. The farmhouse was located on a 214-acre parcel that Morris and Ruth owned; the house was about 400 to 500 feet from the end of the driveway adjacent to Route 173.

Plaintiff testified that he last saw his parents alive on Wednesday evening, April 7, 1993. His father went to bed at 8 p.m. because he had the flu. Plaintiff went to bed at 8:30 p.m. The next morning, Thursday, April 8, 1993, plaintiff awoke at 9 a.m. His parents were not in the house. Plaintiff ate in the kitchen. It was not a "big deal" to him that no one was in the house. Plaintiff was not certain where his parents were. He testified that his mother could have been away on errands; his father could have been in the shop or gone to Sugar Grove (Morris and Ruth had planned on going to Sugar Grove to purchase a tractor that their friend "Windy" (a man) had told them about, and Windy might have picked them up). Plaintiff looked for a note. He testified that he was in a hurry. He walked behind the house to the vegetable greenhouse.

The rain had stopped, and plaintiff moved pepper plants out of the greenhouse. After he moved the plants, he returned to the greenhouse to start a fire to warm up the shop. Plaintiff smoked part of a marijuana joint. He had a motorcycle project he was working on. The bike's owner stopped by with another motorcycle for plaintiff to repair. After the owner dropped it off, he left. Plaintiff started working on the bike. Later, at about noon, Art Clokey, who was renting the barn, asked plaintiff to move a pig for him. Afterwards, plaintiff continued working until 6:30 p.m.

While plaintiff walked across the field and to the house, he noticed a padlock on the rug trailer. This made him think that his parents had gone away, because the rug trailer was never locked unless his parents had gone away for the day. Plaintiff went into the house and ate. He looked for a note, but did not find one. Plaintiff then walked around the back of the house and checked a garage door. It was locked, which indicated to plaintiff that his parents were gone; they left it unlocked when they were home. Plaintiff returned to the shop to work on the bike. When he finished, he turned on the radio and finished smoking his joint.

At 10 p.m., plaintiff returned to the house and saw a light on in the garage. He looked inside through a window and saw no one. He did not look through another window with shrubbery in front of it; had he done so, he conceded, he would have seen his father's body. Plaintiff returned to the house. He became worried. Plaintiff testified that his parents would usually return by 10 or 10:30 p.m. He could think of no one to call. (his parents did not have cellphones.) Plaintiff waited by the phone until midnight and went to bed.

On Friday, April 9, 1993, plaintiff woke up about 9 a.m. and looked around the house. His parents were not in the house. A man drove up and asked when the shop was going to open; plaintiff told him that he did not know where his parents were and that the shop would not be opening that day. The visitor left. Plaintiff put up the gate and chain, picked up the newspapers, and returned to the house. At about 11 a.m., Morris's friend, Ed Zender, and his girlfriend, Traci Foskus, walked up the driveway. Plaintiff went outside and explained to them that his parents were missing. Zender asked for a British motorcycle nut, and they went to the garage to look for it. They entered the garage through a southwest door (plaintiff lifted the overhead door, which was unlocked) and proceeded toward the northwest corner to a box where the British nuts and bolts were kept. When they did not find what Zender needed, Zender suggested looking in the British parts section of one of the parts rooms, which was in the southeast section of the garage. They walked east into the first parts room. Plaintiff turned south to proceed down the first aisle, but his foot hit something on the floor and he backtracked and chose instead the middle aisle. Plaintiff and the visitors walked south into the second parts room. There, plaintiff discovered his father's body, face down, in a pool of blood.

Plaintiff called 911. The operator asked plaintiff how long he thought his father had been dead; plaintiff testified: "And at first I said about 24 hours. Then I realized I didn't know. So I said, well, he's been missing for about 24 hours." Plaintiff then searched for his mother. He checked her car. Plaintiff saw a key lying in the grass five feet from a blue Volkswagen that was outside the garage. Plaintiff thought this was unusual, and he later told the police about it.

After the police arrived, they asked to search the house. Plaintiff consented to the search and answered questions. He then attempted to call his brother, who lived in Whitewater, Wisconsin; plaintiff did not reach his brother. Plaintiff contacted his brother's neighbors and told them that his father was dead. He also called Francis, Ruth's best friend, and told her the news. While looking for Francis's number, plaintiff located Windy's number. He called Windy to tell him of Morris's death, and Windy gave a "bizarre" response, denying that he and Ruth were having an affair.

Plaintiff led police through their search of the house. At this point, he understood that the police suspected foul play. Detective Beverly Hendle was at the scene by 12:55 p.m. She questioned plaintiff. Plaintiff then spoke to the coroner. Plaintiff waited in the kitchen "in case anybody wanted to ask [him] any more questions" and made coffee. Plaintiff looked outside and realized that it was a sunny day. He was concerned that his plants, which were in closed cold frames, would burn. Plaintiff testified that he asked one of the officers if he could go open the cold frames. The officer told him he could do so. Plaintiff was gone for 15 to 20 minutes. He spoke to neighbors during this time and took a small "hit" of marijuana that one of his friends offered him. Plaintiff returned to the kitchen.

An officer asked plaintiff for a key to the rug trailer lock. When no key could be found, plaintiff suggested that the officers break the lock. Plaintiff walked outside. He saw the officer enter the trailer and then rush out; subsequently, two or three officers rushed inside. The officers discovered Ruth's body under a pile of rugs. One officer came out, pointed at plaintiff, and stated "don't let him go." Two officers then came up to plaintiff and escorted him to a squad car. Before he entered the car, the officers frisked plaintiff's pockets. He could not exit the squad car because there were no handles on the inside of the doors and there was a cage between the back and front seats. It was about 1 p.m.

Plaintiff waited in the squad car for 20 to 30 minutes. An officer came and opened one of the rear squad-car doors and the driver's-side door. The officer sat on the driver's side. Plaintiff asked if they had found his mother and if she was dead, and the officer replied in the affirmative. Plaintiff stated that he was afraid of that. He also said, "how could anybody do something like this for money?" Plaintiff testified that this was the only reason he could conceive of to explain why his parents were killed. Plaintiff did not cry; he testified that he did not show any emotions while with the officers, because he was in shock. Plaintiff asked to leave to urinate, and he did so behind a tree with the officer standing nearby. He was then escorted back to the squad car. After 45 minutes to 1 hour, plaintiff asked again to go urinate, which he did. He returned to the squad car and stayed for two to three hours.

Hendle approached the squad car and told the officer who waited there with plaintiff that they would be taking plaintiff to Woodstock. Plaintiff was escorted to another squad car and was told that he would be transported. Plaintiff asked whether they were "going for ridies," a reference to what his brother would say when he took his dogs for a ride. Plaintiff testified that he would "make comments sometimes when [he was] uncomfortable" and that he wanted to "lighten the mood," since he had been waiting for hours. "It was just a short flip comment" and there was "nothing to it." Hendle sat in the front passenger's seat, and plaintiff was transported to the sheriff's department. There, he was placed in an interrogation room. It was about 4 p.m.

The interrogation, which lasted 18 hours, was neither videotaped nor audiotaped, and none of plaintiff's statements was reduced to writing. According to plaintiff, the interrogation room was 12 feet wide and 20 feet long. Hendle led plaintiff into the room. Detective Eugene Lowery was waiting in the room. Hendle and Lowery read plaintiff his Miranda rights. Plaintiff then made a "flip comment" (i.e., said "Que?," Spanish for "What?") when his rights were not read to him in Spanish. He then apologized for the comment, realizing that it was "inappropriate."*fn3 Plaintiff testified that he makes "flip comments" when he is nervous. Plaintiff did not request an attorney because he had nothing to do with his parents' murders and he wanted to cooperate with the police. The detectives interviewed plaintiff, asking him questions about the preceding two days. They then went over the events again. Plaintiff signed a consent-to-search form at 4:20 p.m.

The interrogation continued. By 7:30 p.m. plaintiff was tired and had not eaten. He testified that he had told the detectives everything he knew. Everyone loved his father, and plaintiff could think of no one who might have wanted to hurt his parents. Plaintiff wanted to leave, and the detectives told him that they would not let him go. They continued questioning him.

Plaintiff testified that he told the detectives that he did not call his brother at 10 p.m. on Thursday, April 8, because he did not want him to worry. "That's not the way we did things[,] *** my parents were very private people. They took care of themselves. So no news is good news." Plaintiff also told the detectives that he did not call police on Thursday evening because it was his understanding that he had to wait 24 hours to report a missing person. At most, his parents were missing since Thursday morning, and it was not unusual for them to return home at 10:30 p.m. According to plaintiff, Lowery asked him many questions about the route he took to look for the British nut instead of walking down the middle aisle of the parts room; plaintiff explained to Lowery that he went to look for the British nut in the box containing such pieces; when he did not find one there, he took the quickest path to the second parts room, i.e., through the first parts room. Plaintiff told the officers that he thought his father was killed about 7:30 a.m., because, when his body was discovered, he was wearing boots and a coat he typically wore first thing in the morning.

The questions went into plaintiff's background, including his alcoholism (he had been sober over one month prior to the interview), his first marriage and divorce, his children, living in a commune in Tennessee, et cetera. By 10 p.m., plaintiff had still not eaten and had drunk 15 cups of coffee. Plaintiff testified that he was tired and asked if he could leave; he was told that he could not leave. The detectives told plaintiff that they did not believe his story, and Lowery yelled at him. At this point, plaintiff offered to undergo a polygraph examination. The detectives agreed, and plaintiff signed a consent for them to administer and videotape the examination.

While waiting for the polygraph examiner to come to the station, the questioning became less "intense" or "badgering." The detectives ordered sandwiches, and plaintiff ate a few bites and drank water and coffee. Plaintiff inquired whether polygraphs were reliable and told the detectives that he had read that relaxation or meditation could lower one's blood pressure and affect the test results. Plaintiff told Hendle that he could lower his blood pressure and that he meditates. The polygraph examiner, Kenneth Frankenberry, arrived at midnight. While Frankenberry was preparing plaintiff for the examination, he asked plaintiff if he was aware how his parents had been killed. After plaintiff replied in the negative, Frankenberry told him that their throats had been cut. This was the first time that plaintiff was informed of this.

While Frankenberry was setting up for the examination, plaintiff spontaneously made another "flip" comment, about "voices" (i.e., "I said voices"), and then apologized. Plaintiff was fatigued at this point. He typically went to bed at 10:30 p.m. and almost always before midnight. The examination lasted about one hour. Plaintiff testified that he answered truthfully.*fn4 When plaintiff was exiting the examination room, Lowery asked him how he would cut someone's throat. Plaintiff replied that he would "take a knife and grab their head." Plaintiff then just dropped his hands and stopped speaking. They walked back to the interrogation room. When asked how he knew how to cut someone's throat, plaintiff responded that he saw it in a "Rambo" movie. At this point, Lowery and two other officers were in the interrogation room; they asked only a few questions for about 20 minutes. Lowery left and then returned and started questioning plaintiff. Detective Christopher Pandre was introduced to plaintiff. At this point, only Lowery and Pandre were in the room with plaintiff. Hendle returned after 30 minutes and Pandre left.

Plaintiff testified that the questioning became "bizarre" at this time. Hendle told plaintiff that the detectives had a stack of evidence against him; plaintiff stated that Hendle was "crazy," to which Hendle replied that they did have such evidence. Lowery mentioned that plaintiff told Frankenberry that he heard voices and plaintiff replied that Lowery was lying. This "made no sense" to plaintiff. He inquired if he passed the polygraph examination, and Lowery told him that he did not. According to plaintiff, "It made no sense at all." The detectives told plaintiff that they found a bloody knife in his pocket, bloody sheets on his bed, and bloody fingerprints in his bedroom (none of which was true). Lowery again questioned plaintiff about the route he took in the garage. Plaintiff asked when he would be able to view the evidence, and the detectives responded that he could see it on Monday. Plaintiff asked if they were lying, and they replied in the negative and further stated that they could not lie.

Plaintiff testified that he was exhausted and asked to lie down. The detectives told him that he could not do so. Plaintiff asked if he could get help, to which Lowery "explode[d]" and accused plaintiff of "thinking about saving [his] own ass." Lowery yelled at plaintiff and put in front of him two photographs of Morris's and Ruth's bodies. Plaintiff pushed them away. At one point, plaintiff retrieved the photograph of his mother's body and pointed to her clothes, noting that they were not the same clothes she wore when plaintiff last saw her. Also her hair had been pulled back, and Ruth did not wear her hair that way. The interrogation became "very intense." The detectives told plaintiff that they did not believe him and that a 10-year-old "could have done better."

Next, plaintiff testified, "And I asked Detective Hendle, could it be possible that I did this in a blackout? And she said yes, yes. She said this often happens in family members where a person will kill someone in their family and then black it out." Plaintiff continued:

"I have absolutely no memory of this. They are not letting me go. I don't know what else to do. I said well, what if I construct a hypothetical scenario using the details you have given me of the crime to try to jog my memory so I can remember what I did because they are saying I did it.

And I said that, and an alarm bell did go off in my mind. I mean wait a minute. Is this really right? But it is like 2:00 in the morning. I want this crime to be solved. I suppose I should have asked for a lawyer then. But if I killed my parents, I want to know about it.

They said they can't lie. I'm not thinking right at all anymore. I'm not. So they agreed with me. They thought it was a good idea if I go through a hypothetical scenario of how I must have killed my parents. Now, the only memories I have of my parents were nothing about murdering my parents. I just had to take details from the past."

Plaintiff then testified that he told the detectives how he would have killed his parents. He would have approached his mother in the trailer, walked up behind her, pulled her hair, cut her throat, and let her fall. When asked if he would have covered her with blankets, plaintiff responded that he could not recall if he did, but, if he did, he would have done so because he cared. He testified that he started to cry after he told the detectives how he would have killed his mother. Plaintiff next told the detectives how he would have killed his father. He would have approached him from behind while Morris was in the garage, pulled back his hair, cut his throat, and let him fall. When the detectives asked plaintiff if his father knew he was there, plaintiff told them that Morris would not have heard him because he was "hard of hearing" (a family trait that plaintiff has inherited). The detectives asked plaintiff what he did with the murder weapon, and plaintiff told them that he would have left it there. Plaintiff testified that, at this point in the interrogation, he was sobbing. Hendle was on his right side and Lowery was on his left. They told him he did it. "I look at Beverly Hendle. I killed my mother. And she looks at me and she says you did it, Gary."

According to plaintiff, Lowery was loud and accusing and Hendle was warm and sympathetic. "And now [Hendle] says you did it, Gary. And I believe her. I believe her." Plaintiff testified that he told the detectives that he had no memory of killing his parents. "Every time I try to get my composure, they say Gary, we see it in your eyes. You killed them. You're telling the truth now."

This line of questioning continued for 1 to 11/2 hours. "And now they have me believing I had killed my parents." The questioning then turned to plaintiff's motive. They did not identify a motive. Plaintiff asked Lowery, who carried a pistol on his belt, to remove the gun because plaintiff might grab it and kill himself; Lowery removed the gun. About 2 a.m., on Saturday, April 10, the detectives told plaintiff that the State's Attorney was there and would seek the death penalty. "I didn't care."

At about 5 a.m., Pandre entered the room. He carried a bag with jail clothes in it and told plaintiff that he would be collecting his clothes. Hendle left the room, and plaintiff changed into the clothes that Pandre had brought into the room. The questioning continued, with Pandre asking plaintiff what he did the morning his parents were murdered. According to plaintiff, he was flooded with relief. "I thought oh my gosh, this is all part of the investigation. They are just trying to solve the murder. I didn't kill my parents. It was wonderful." After plaintiff started recounting the events, one of the detectives stated that they wanted to hear how he killed his parents. Plaintiff then again recounted what he maintained was a hypothetical scenario, but it was not couched in hypothetical terms. However, he added: "I said I can't believe I killed my parents. And I'm not ready to sign a confession because I have no memory of this. I think I did it. I loathe myself. But I have no memory. I won't sign a confession because I don't remember it."

At 10 a.m., plaintiff requested an attorney. He was escorted to the booking sergeant and was subsequently placed in a holding cell.

2. Defendant Beverly Hendle

Hendle testified that, when she arrived at the farm on Friday, plaintiff was a person of interest because he "was the only surviving member on the farm where his parents had been ...


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