Appeal from the Circuit Court of Du Page County. No. 10-CM-2367, Honorable Karen M. Wilson, Judge, Presiding.
Presiding Justice Burke and Justice Hutchinson concurred in the judgment and 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 ...