No. 2-12-0323 Opinion filed September 30, 2013 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 10-CM-2367 ) ROBERT P. DEREADT, ) Honorable ) Karen M. Wilson, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Hutchinson concurred in the judgment and opinion.

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.

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¶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

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said that he had driven in the area around 4 p.m. to go to his grandparents’ home and put some tools

away. He denied having contact with any girls that day.

¶ 11 Simpson later saw the same truck (based on defendant’s license plates) at a shopping mall.

This time the truck had red stripes on the front hood and on the rear. He prepared a photo lineup of

pickup trucks for the girls. He had received reports that Keileen had seen the same truck several

times since the incident (but never mentioned red stripes). The girls did not identify any of the trucks

until Simpson pointed out the one with the red stripes. They then agreed that, but for the stripes, that

one could have been the one that they saw.

¶ 12 The jury found defendant guilty of two counts of disorderly conduct. The trial court merged

the counts and sentenced defendant to 30 days in jail. Defendant timely appeals.

¶ 13 Defendant first contends that the trial court erred by proceeding with a 6-person jury without

securing his personal waiver of a 12-person jury. He concedes that he did not include this issue in

his posttrial motion, but asks that we consider it as plain error. As the knowing waiver of the right

to a jury trial is “fundamental,” it implicates the second prong of plain-error review, where

“remedying the error is necessary to preserve the integrity of the judicial process.” In re R.A.B.,

(2001). Thus, we consider whether plain error occurred.

¶ 14 As defendant correctly notes, the right to a jury trial in a criminal case is guaranteed by both

the federal and the state constitutions. U.S. Const., amend. VI; Ill. Const. 1970, art. I, §§ 8, 13. The

constitutional right to a jury trial is codified in section 115-1 of the Code of Criminal Procedure of

1963 (the Code) (725 ILCS 5/115-1 (West 2010)), which provides that “[a]ll prosecutions except

on a plea of guilty or guilty but mentally ill shall be tried by the court and a jury unless the defendant

waives a jury trial in writing.” The general understanding, possibly dating back as far as the tenth

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century (725 ILCS Ann. 5/115-4, Committee Comments-1963, at 23 (Smith-Hurd 2008)), is that a

jury consists of 12 members. Thus, the Code provides that, where a defendant elects a trial by jury,

“[t]he jury shall consist of 12 members.” 725 ILCS 5/115-4(b) (West 2010).

¶ 15 Nevertheless, a 12-person jury is not absolutely required, for a defendant’s right to waive his

right to a jury trial entirely necessarily includes the right to waive a jury composed of 12 members.

People ex rel. Birkett v. Dockery,

(2009). In People v. Scudieri,

(1936), the supreme court found no error in proceeding to trial with a jury of 11 after the defendant

had agreed to the lesser number because a full panel was unavailable. See also People v. Pierce,

(1938) (same). Indeed, Illinois courts have consistently held that a criminal defendant may

waive the participation of the full number of jurors and proceed with fewer than 12. See, e.g.,

People v. LaFond,

(2003) (after the jury has retired to deliberate and one

juror becomes unable to serve, defendant may agree to proceed to verdict with fewer than 12);

People v. Matthews,

(1999) (defendant may waive the right to a jury

of 12 and proceed with a lesser number, as long as the waiver is affirmatively shown on the record);

People v. Ernst,

(1991) (collecting cases holding that a defendant may waive

his right to a jury of 12 and proceed with a lesser number).

¶ 16 Somewhat less clear is what is necessary for a valid waiver of the right to a 12-person jury.

In cases involving complete jury waivers, an oral waiver by defense counsel in the defendant’s

presence, in open court and without objection by the defendant, is generally valid. See People v.

Murrell,

(1975); People v. Sailor,

(1969). However, defendant

cites Matthews for the proposition that the trial court could not proceed with a 6-person jury without

securing defendant’s personal waiver of a 12-person jury.

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¶ 17 We disagree with defendant’s reading of Matthews. The court there reversed the defendant’s

conviction and remanded for a new trial because “nothing in the record indicates that defendant was

aware of his right to a 12-person jury. Nothing in the record indicates that defendant agreed to a jury

of fewer than 12 members, as occurred in [People v. Quinn,

(1977)], or

acquiesced in a jury of six.” Matthews,

. Thus, the court’s primary concern

was that the defendant was not aware of his right to a 12-person jury and could not, under the

circumstances, be deemed to have acquiesced in a trial by a lesser number.

¶ 18 In Quinn, which Matthews distinguished, defense counsel and the prosecutor, during a

conference in the judge’s chambers, agreed to a six-person jury. The defendant remained in the

courtroom during this conference. However, defense counsel had informed the defendant that he had

a right to a 12-person jury but that he could waive that right and agree to be tried by a 6-person jury.

Quinn,

. The reviewing court refused to find plain error, noting that the

defendant’s rights were explained to him, he did not object at that time, and he had never claimed

that he did not understand the right to a 12-person jury.

.

¶ 19 More recently, in People v. Barrier,

(2005), the Third District rejected

the defendant’s argument that Matthews required the defendant’s personal waiver of a 12-person

jury. There, defense counsel stipulated, in the defendant’s presence, to select 12 jurors with no

alternates. When a juror became ill, the trial proceeded with 11 jurors. The court held that defense

counsel’s stipulation in the defendant’s presence to proceed with no alternate jurors strongly implied

the defendant’s awareness of the right to a 12-person jury and her acquiescence in proceeding with

less than that number if a juror became ill.

.

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¶ 20 Here, defense counsel stated that she had spoken with defendant “about whether he would

want a jury of six and twelve.”1 This was sufficient under Quinn and Barrier. In fact, this case is

stronger than those cases because counsel’s statement implies that defendant actively participated

in the decision rather than merely acquiescing in counsel’s decision.

¶ 21 Defendant next contends that he was not proved guilty beyond a reasonable doubt, because

the girls’ identification of him and his truck was vague and uncertain. We disagree.

¶ 22 Where a defendant challenges on appeal the sufficiency of the evidence, we ask whether,

after viewing all the evidence in the light most favorable to the prosecution, a rational trier of fact

could have found the elements of the offense beyond a reasonable doubt. People v. Beauchamp,

(2011). We may not substitute our judgment for that of the trier of fact on questions

involving the weight of the evidence, the credibility of the witnesses, or the resolution of conflicting

testimony. People v. Campbell,

(1992). A positive identification by a single

witness who had a sufficient opportunity to observe the defendant is enough to support a conviction.

People v. Johnson,

(1986). However, a doubtful, vague, or uncertain

identification will not support a conviction. People v. Slim,

(1989).

¶ 23 Nevertheless, courts have consistently recognized that vague or discrepant descriptions do

not necessarily render identifications unreliable, because very few witnesses are trained to be keen

observers. See, e.g., People v. Williams,

(1987) (witness’s failure to mention

the defendant’s facial hair did not render her identification unreliable); People v. Nims,

(1986) (victim’s failure to mention the defendant’s facial scars did not render her

1 Defense counsel probably meant to say “six or twelve,” but defendant does not argue that

counsel’s statement to the court confused him.

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identification unreliable); see also People v. Bias,

(1985) (inaccuracies

pertaining to the “presence or absence of a beard, mustache, or tattoo, whether the assailant had

missing teeth, and the assailant’s height, weight and complexion, do not render an identification

utterly inadmissible”). Indeed, “ ‘[t]he credibility of an identification does not rest upon the type of

facial description or other physical features which the complaining witness is able to relate.

[Citation.] It depends rather upon whether the witness had a full and adequate opportunity to observe

the defendant.’ ” People v. Robinson,

(1990) (quoting People v.

Witherspoon,

(1975)).

¶ 24 Illinois courts consider five factors, commonly known as the Biggers factors, when

determining whether a witness’s identification is reliable. People v. Piatkowski,

(2007) (citing Neil v. Biggers,

(1972)). The Biggers factors include: (1) the

witness’s opportunity to view the offender at the time of the offense; (2) the witness’s degree of

attention at the time of the offense; (3) the accuracy of the witness’s earlier description of the

offender; (4) the level of certainty shown by the witness when confronting the alleged offender; and

(5) the length of time between the offense and the identification confrontation. Biggers,

; Slim,

. In addition to these specific factors, courts also consider the

totality of the circumstances when reviewing the reliability of an identification. Biggers,

; People v. Smith,

(1998).

¶ 25 Here, both girls positively identified defendant as the driver of the truck. It is true that Alycia

identified defendant in the photo lineup but not in court, while Keileen identified defendant in court

but could not pick him out of the photo lineup. However, Keileen selected defendant’s photo as one

of two that looked similar to the driver. Moreover, Alycia’s inability to identify defendant in court

does not necessarily destroy the validity of her earlier identification of him from the photo lineup.

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Earlier identifications are admissible despite a witness’s inability to make an in-court identification.

People v. Gonzalez,

(1997) (“A reliable identification occurring only

minutes after the crime should not be kept from the jury solely because the witness is unable, several

months later and under the pressure of testifying in court, to identify the defendant.”). The girls

appeared to have had a sufficient opportunity to view defendant, as they were within eight feet of the

truck and the encounter went on for some time. They were clearly attentive, as they engaged with

him in a brief conversation, and the photo lineup occurred within hours of the offense.

¶ 26 Further, it is undisputed that, with one exception, defendant matched the general descriptions

the girls gave. Moreover, he drove a black pickup, as they described, and was stopped by a police

officer near the scene less than an hour after the offense. Contacted later at his home, which was less

than two miles from the scene, he admitted having been in the area on the day in question, although

he denied talking to the girls.

¶ 27 Defendant points to various inconsistencies in the girls’ descriptions of the offender. He

contends, for example, that the girls described the offender as bald while defendant has hair. Keileen

testified that the offender had brown eyes, but she claimed that he wore sunglasses during most of

the incident and that she got only a “quick glimpse” of his eyes when he removed the glasses while

driving away. He complains that the girls inconsistently described his facial hair and notes that,

while both girls testified that defendant had some facial hair, Schindlbeck made no mention in his

report of any facial hair.

¶ 28 As noted, identifications are usually based on overall impressions rather than on specific

features. Robinson,

. Defendant does not contend that the girls had an

inadequate opportunity to observe the offender or that any of the procedures used to identify the

offender were unduly suggestive. Rather, he complains only about the girls’ descriptions of

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“physical features.” As noted, both girls testified consistently that the offender wore a hat. Thus,

their failure to notice defendant’s hair is not unremarkable, especially given defendant’s admittedly

“high forehead.” Defendant characterizes their testimony that he was bald as “rank speculation,” but

it would have been equally speculative to testify that he had hair. The jury was aware that the

offender was wearing a hat and that any testimony about his hair or lack thereof was necessarily

speculative. Similarly, the girls testified consistently that the offender wore sunglasses during the

incident, and thus the jury was aware that any testimony about the color of his eyes was suspect.

However, these facts did not require the jury to reject their ultimate identification of defendant as the

offender. That Schindlbeck did not note defendant’s facial hair also does not undermine the

identification of defendant as the offender. The officer did not testify that the man he stopped did

not have facial hair; his report merely failed to note any.

¶ 29 Defendant also contends, however, that the girls’ description of the truck was fatally flawed.

He notes that they described the truck as having no license plates and no backseat, and that Alycia

thought it was a Ford, whereas the truck was a Dodge crew cab and had license plates when stopped

an hour after the incident. These are the types of omissions that, like the failure to notice scars and

facial hair, do not automatically invalidate a later identification. Even discounting the possibility that

defendant, bent on mischief, temporarily removed or covered the license plates, the girls apparently

saw the truck primarily from the side, so their failure to notice license plates could be forgiven.

Moreover, the girls’ attention was focused on defendant, who was speaking to them, so their failure

to correctly identify the make of the truck or to notice specific details about it is unremarkable.

¶ 30 Defendant argues that the girls picked his truck out of a photo lineup only after Simpson

suggested that they look at the photo of the truck with red stripes. Both girls then concluded that,

without the stripes, the truck could have been the one that they saw. The significance of this is not

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readily apparent. Defendant, not his truck, was charged with the offense, and both girls identified

him as the offender. While a lineup must not be unduly suggestive in identifying an offender, it is

not clear how the suggestive truck lineup affected the girls’ identification of defendant.

¶ 31 Finally, defendant points out that Keileen’s drawing of the truck does not include running

boards. The drawing does contain a fine double-line under the door that could represent a running

board, but, in any event, we will not reverse defendant’s conviction because a 13-year-old’s crude

line-drawing of his truck fails to include a running board.

¶ 32 Defendant lists other examples of what he considers flaws in the girls’ testimony. Most of

these have nothing to do with the issue of his identification. Defendant apparently lists seriatim

every point on which one or both of the girls was or could have been impeached and invites us to

assess their credibility differently than the jury did. We must decline the invitation, as the jury is the

ultimate arbiter of witness credibility. See Campbell,

.

¶ 33 The judgment of the circuit court of Du Page County is affirmed.

¶ 34 Affirmed.

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