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JELINEK v. COSTELLO

February 27, 2003

ROGER JELINEK, PETITIONER,
v.
JOSEPH COSTELLO, SUPERINTENDENT, MID-STATE CORRECTIONAL FACILITY, RESPONDENT.



The opinion of the court was delivered by: Weinstein, Senior District Judge.

MEMORANDUM AND ORDER

I. Introduction

The crux of the case is this: At a state trial, defendant's otherwise competent standby trial counsel may have performed inadequately by failing to advise his pro se client to move to dismiss two sodomy counts (Seven and Eleven) because of a variance between the indictment and proof — essentially how, when and where relevant incidents occurred. See Part X.B.2.c, infra. To now challenge his convictions on these counts, petitioner must show that otherwise competent appellate defense counsel was ineffective for failing to argue this point on direct appeal — an argument that has not been explicitly raised in the Appellate Division collaterally. The sexually abusive acts the jury found defendant guilty of would have had a devastating impact on the children and their parents whether the instrument of defendant's violation was his hands, his mouth or his penis. Nevertheless, those distinctions are important in determining whether there were legally significant variances between two felony counts as charged and as proved. The instant federal case seeking a writ of habeas corpus must be stayed to permit petitioner to attempt to exhaust his state coram nobis rights in the Appellate Division. To explain how and why this conclusion is reached, this memorandum addresses the applicable federal and state criminal collateral attack practice.

This long-delayed case raises profound questions of due process, of the intricacies of procedure in state and federal courts, and of the inadequacies of state counsel. Total innocence is not implied.

This matter has moved back and forth between the state and federal courts for some years. To the law's chagrin, its resolution must be delayed yet again. The case will be stayed to allow the petitioner to present apparently non-exhausted claims to a state court. Should state relief be denied, he will have the opportunity to return once again to the federal courts.

A reasonable reading of the record supports the conclusion that Jelinek was probably in fact guilty of a number of the counts for which he was convicted. Compare the miscarriages of justice in such cases described in Dorothy Rabinowitz, No Crueler Tyrannies (2003). Six boys, aged eight to sixteen, testified at trial that Jelinek sexually molested them over four years. Most of the allegations concerned improper touching, but several of the counts in the indictment charged sodomy in the first degree — that is to say, insertion of a penis into a mouth or rectum. For the most part the testimony of the child victims was convincing and compelling. Of the forty-three charges, the jury convicted on all but five.

Like most trials, this one was not error free. On direct appeal half of the counts for which Jelinek was convicted were vacated by the Appellate Division, including one-third of the felony convictions — on the ground that the indictment was duplicitous with respect to those counts. Another felony conviction was reversed because, as the state itself acknowledged, the jury had convicted Jelinek on that count despite the fact that absolutely no evidence had been presented at trial in its support. The remaining convictions were therefore allowed to stand.

In committing these odious crimes, petitioner abused his positions of trust in the community. Substantial punishment was justified. A thorough review of the state court proceedings nonetheless strongly suggests a constitutional violation. Germane was the critical failure of counsel to protect Jelinek's rights by moving to dismiss two of the first-degree sodomy counts charged against Jelinek after it became clear that the evidence presented at trial varied materially from what was alleged in the indictment. Appellate counsel apparently failed to bring this aspect of trial counsel's deficient performance to the attention of the Appellate Division.

As compelling as his claim to denial of due process may be, at this juncture a federal court is not authorized to provide relief. The reason is the labyrinthian structure of modern habeas jurisprudence — a sometimes befuddling conglomeration of procedural complexities, strict time limits and confounding case law — which society expects prisoners to noctambulate without the guiding hand of counsel. It is no surprise that state prisoners — or judges or lawyers themselves — pursuing complex claims of error-ridden trials, should fail repeatedly to assert the proper claims in the proper manner at the proper times before the proper tribunal. See, e.g., Miller-El v. Cockrell, ___ U.S. ___ 123 S.Ct. 1029, 1042, 154 L.Ed.2d 931 (2003) (federal court of appeals misunderstands its role on appeal).

A state prisoner seeking a writ of habeas corpus plays a giant and deadly game of Chutes and Ladders. Every advance through the court system holds the potential for significant frustration as the pro se petitioner tries to move through such bewildering hazards as time bars, exhaustion doctrine, procedural defaults, independent and adequate state grounds, cause and prejudice, and mixed petitions. The prize in this game, even if skillfully played by an often uncounseled, ill-educated and penurious player, is the reward of having his constitutional claim actually adjudicated on the merits in federal court. It is a prize not often won in this Sisyphean-like contest. And, even when the federal court is freed to consider the merits, the sought after award — a "Get Out of Prison" card — is rarely granted.

The present case is complicated. Represented at trial by an attorney who had lost interest in the case when his full fee was not paid, counseled on appeal by a lawyer who achieved a great deal but missed one of the main points of a meritorious constitutional argument, left without an attorney to contend with technical post-conviction doctrines, Jelinek is once again before a federal court.

He has been back and forth from state court to this court three times, and must return to the state for a fourth cycle. Each time Jelinek fails to state his claims precisely he is in danger of defaulting on those claims, risking that they can never be heard on the merits. His predictably deficient pro se attempts in the state to present even his meritorious claims for adjudication may, in the end, require a federal court to deny him all relief. For the reasons set forth below, Jelinek's petition will be stayed to allow him to return to state court, should he choose to do so, in order to exhaust his remaining, arguably viable claims.

II. Facts

A. Overview

Jelinek, a married man with six children, was arrested in 1991 and tried in 1993 for sexually abusing seven boys from his neighborhood over several years. The state's case rested almost entirely on the testimony of these boys — the youngest of whom was six years old when he appeared before the grand jury — along with the testimony of an investigating detective and a Department of Social Services caseworker. One of the alleged victims was allowed to testify via two-way, closed-circuit television. No medical evidence was introduced.

The defendant testified, recalled several state witnesses, and presented a pair of character witness. He delivered a closing argument himself after dismissing his attorney.

What emerges from the trial testimony is a chiaroscuro portrait of Jelinek as both pillar of the community — natural and adoptive father, Little League coach, Cub Scout official, volunteer meal-provider to the elderly — and sexual predator who abused his positions of trust. The jury convicted Jelinek on most, but not all counts. It acquitted him altogether of the charges he faced with respect to the youngest of the alleged victims.

The following encapsulation of the trial evidence presented demonstrates the strength of the state's case with respect to many of the counts of conviction. It is also testament to the largely professional and competent representation that Jelinek received from trial counsel on his behalf at most stages of the trial. At the same time, the summary makes clear that trial counsel's failure to recognize and object to substantial variances from the indictment relating to two of the most serious charges lodged against Jelinek arguably fell well below the constitutional minimum required of effective counsel. Because the ineffective assistance of counsel related most clearly to the alleged sodomy of J.N. and J.C., the synopsis begins with a description of their testimony.

B. Testimony of Complaining Witnesses

There were many inconsistencies between the Grand Jury and trial testimony of a number of the complaining witnesses. Jelinek's counsel in the Appellate Division compiled a chart, titled "Summary of Trial Testimony of Prior Uncharged Acts," which sets forth many of these discrepancies and was presented on direct appeal. See Appendix. Although the chart is not complete, it accurately summarizes the views of appellate counsel. It may be of some service as a rough road map to many of the inconsistencies discussed below.

1. Child J.N.

Jelinek was charged with a number of counts alleging that he improperly touched and sodomized J.N., an eight-year-old boy, who was a friend of two of Jelinek's sons, all at defendant's home.

The most serious of the counts charged Jelinek with placing his mouth on the penis of J.N. When asked at trial whether the incident had occurred, J.N. unequivocally responded that it had not. Trial counsel nonetheless failed to move at any time to dismiss the count, and the jury convicted Jelinek on that sodomy count. There were substantial other discrepancies among J.N.'s testimony at two Grand Jury hearings and at trial.

a. Charges Related to J.N.

Count Eleven was for sodomy in the first degree, relating to an alleged incident on or about July 1991 in which Jelinek put his mouth on the penis of J.N.

Five of the charges were for sexual abuse in the first degree. Count Twelve charged Jelinek with touching the penis of J.N. on or about and between June 15 and July 15 of 1991. Count Thirteen charged him with putting his mouth on the buttocks of J.N. on or about and between June 15 and July 15 of 1991. Count Fourteen charged him with touching the buttocks of J.N. on or about and between June 15 and July 15 of 1991. Count Fifteen charged him with touching the penis of J.N. on or about June 1991. Count Sixteen charged him with touching the buttocks of J.N. on or about June 1991.

Count Seventeen charged Jelinek with the misdemeanor of endangering the welfare of a child, J.N., by engaging in sexual acts, "in the presence of or upon the person of" J.N. on or about and between June 1990 and July 1991. As the prosecutor explained, "all of the sexual acts that the defendant performed on [J.N.] or in front of him constitutes and will be proof of endangering his welfare. . . ." (Trial Tr. at 111.)

b. Grand Jury Testimony of J.N.

J.N. was eight years old when he testified before the Grand Jury in August and September of 1991. He testified at this first Grand Jury appearance that he was friends with two of Jelinek's sons, that one of Jelinek's daughters often babysat for him, and that he was often at the Jelinek home after school, occasionally sleeping over. When asked about an incident that allegedly occurred at Jelinek's home after J.N. was released from school in June 1991, he responded in the hesitant, disjointed manner typical of the children examined in this case that touching only occurred:

Q Did anything happen when you came home from school and went to Roger Jelinek's house?

A Yes.

Q What happened?

A I forgot.

Q Did you forget?

A Yes.

Q You really forgot? Well, did the defendant do anything to you?

A Yes.

Q Do you know what it was that he did?

A Yes.

Q Can you tell us what he did?

A He gave me a little squeeze and he squeezed my tushie.
Q I didn't understand the first thing you said. . . . What did you say first?

A He gave me a weenie squeeze.

Q A weenie squeeze?

A Yes.

Q What's a weenie squeeze?

A When he squeezes it.

Q What's it?

A My penis.

Q This was in June when you came home from school?

A Yes.

Q You said he gave you a weenie squeeze. What else did he squeeze?

A My tushie.

(Aug. 22, 1991 Grand Jury Tr. at 40-42.)

J.N. was then asked about another incident that allegedly occurred in July 1991:

Q Do you remember a day when you were at the defendant's house when [J.C., another alleged victim] was there too?

A I can't remember it.

Q What?

A I can't remember it.

Q Has [J.C.] ever been to Roger's house?

A Yes.

Q How do you know that?

A When I come over, he is there.

Q Okay. When you went over there and [J.C.] was there, did anything happen?

A Yes.

Q What?

A He gave me a weenie squeeze and he squeezed my butt.

Q Who gave you a weenie squeeze?

A Roger [Jelinek].

Q [J.C.] was there at the time?

A Yes.

Q Did the defendant do anything else after he gave you a weenie squeeze on the day that [J.C.] was there?

A No.

Q When the defendant gave you a weenie squeeze, did you have your clothes on?

A Yes.

Q Did you ever not have your clothes on when you were with the defendant?

A Yes, when I came from the shower.

Q Did anything happen when you didn't have your clothes on?

A Yes, he gave me a tushie bite.

Q A tushie bite?

A Yes.

Q Did anything else happen?

A No.

Q Do you remember when it was that he gave you a tushie bite?
A After he started — after he did the penis squeeze and the butt squeeze.

(Id. at 42-43.)

In his testimony at a subsequent Grand Jury appearance in September, J.N. expanded upon this account and testified for the first time that Jelinek put his mouth to J.N.'s penis:

Q Did [the defendant] ever put his mouth anyplace?

A Once.

Q Where did he put his mouth?

A On my penis.

Q Was that in July of this year also?

A Yes.

(Sept. 27, 1991 Grand Jury Tr. at 36 (emphasis added).)

c. State Examination of J.N. at Trial

J.N. was nine years old at the time of the trial. He first testified that in June of 1991 Jelinek "touched my penis, gave me a tuschy squeeze, a tuschy bite, and wanted to put his, and went to put his — what do you call it? — penis in my mouth, once." (Trial Tr. at 597.) According to J.N., this type of incident occurred every time he went over to Jelinek's home, which was nearly every day.

He further described an incident in which Jelinek "put his penis in my mouth" in the presence of J.C. (Id. at 598.) Later on direct examination the following exchange occurred:

Q Did [Jelinek] do anything to you [in July]?

A He gave me a tuschy squeeze, a tuschy bite, and he put his hands down my pants and once touched my penis and put his penis in my mouth.

Q Did he put your penis in his mouth?

A No.

Q What did he do?

A He put his penis in my mouth.

(Id. at 601 (emphasis added).)

Neither the prosecutor nor defense counsel called the jury's attention to the fact that the trial was the first time J.N. had made the accusation that defendant had put his penis in J.N.'s mouth, or that the story diverged widely from that which he had told before the Grand Jury — i.e., that Jelinek had placed his mouth on J.N.'s penis rather than placing his penis in J.N.'s mouth.

J.N. at trial also testified for the first time about an incident in July 1991 in which Jelinek allegedly took a picture of J.N. naked after emerging from the shower:

Q And can you tell us what, if anything, happened, when you got out of the shower?

A He took a picture.

Q And did you have clothes on or no clothes on?

A No clothes on.

Q And what, if anything, did he say about the picture?
A He was going to hang the picture on the bulletin [board] in the school.

(Trial Tr. at 600.)

d. Defense Examination of J.N. at Trial

On cross-examination, J.N. agreed with defense counsel that his initial interview with a police detective and caseworker from Children's Protective Services ("CPS") lasted for nearly four hours. J.N. disagreed with counsel, however, that he was told by them that "they knew pretty much something had happened . . . [and] had [his] name from other kids." (Id. at 605.) He also acknowledged that before speaking with the caseworker and detective he never told anyone about the sexual abuse he allegedly suffered at Jelinek's hands.

Q Now, do you remember going to the Grand Jury twice in 1991 . . . ?

A I don't think so.

Q Well, do you remember being asked these questions and making these answers —

MS. WATSON [the prosecutor]:

Judge, I object. He doesn't even remember being at the Grand Jury.

MR. KRIEGER [defense counsel]:

Well, if I read it perhaps it will refresh his recollection, Judge.
THE COURT: Well, refresh his recollection, if you can, first. Let him look at it to see if it refreshes his recollection.
Q Read [the transcript of the Grand Jury testimony] to yourself from line 11 down to the bottom of that page.

THE WITNESS: I don't understand this.

THE COURT: Let us know when you're finished reading it and the lawyer will ask you questions.

THE WITNESS: I don't understand that.

THE COURT: Ask your question.

Q [J.N.], were you asked these questions —

THE COURT: No, no. Does that refresh your recollection?

Q Does that refresh your recollection?

A No.

THE COURT: Okay.

Q Were you asked —

MS. WATSON: Objection.

THE COURT: No, sustained.

MR. KRIEGER: I'd ask that the witness be shown . . . page 42, lines 6 through 11?

Q Do you remember being asked — THE COURT: No, no.

Q The question —

MS. WATSON: Objection.

THE COURT: Sustained.

Q Does that refresh your recollection about some questions and answers that you were asked and answers you gave in the Grand Jury? Do you know what the term "refresh" means?

A No.

THE COURT: If you can remember, if you look at that and then it triggers your memory of what happened, you would say yes. And if it doesn't, you would say no?

THE WITNESS: It don't.

THE COURT: Okay.

MR. KREIGER: May we approach?

THE COURT: Yes.

(The following discussion took place at the bench:)

THE COURT: Now, I'm not going to tell you how to present your case. One procedure is to refresh his recollection, another procedure, if you believe there is some inconsistency between testimony and anything he swore to previously, there is a way to get that in. But I'm not going to say now, and you have to show the inconsistency first.

MR. KRIEGER: Well, the offer of proof —

THE COURT: Where is the inconsistency?

MR. KRIEGER: The inconsistency is done on the prior occasion.

THE COURT: What prior occasion?

MR. KRIEGER: On the Grand Jury. This witness under oath swore that he had forgotten two incidents that he was asked about by ADA Ennis.
THE COURT: I don't understand. He said under oath that he forgot what?

MR. KREIGER: He asked — Let me show you.

THE COURT: Where is the inconsistency?

MR. KREIGER: Wherever he's asked about a specific day and a specific month that he remembers now, but he didn't remember then.

(Id. at 608-13.) Counsel thereupon read to J.N. several portions of his testimony before the Grand Jury, asking him if he remembered the questions and answers. To all of counsel's queries J.N. responded that he did not remember either the questions or the answers.

After this bungling and hacking in a failed attempt to show a critical contradiction in the child's testimony before the Grand Jury and at trial, defense counsel elicited from J.N. the more pallid admission that his recollection of events from about two years earlier was hazy at best, and may have resulted from practice in answering:

Q So, would it be fair to say, then, that some things that happened back in August of 1991 in sort of an official setting you don't remember?

A No.

Q And would it be fair to say that there are other things from the summer of 1991 that you don't really remember?

A I don't remember.

Q Actually, are there some things that you were telling when you were speaking today, when Ms. Watson [the assistant district attorney] was questioning you — She was the first one that talked to you here after the jury came in, right?

A Yes.

Q When you answered Ms. Watson's questions here this afternoon and you gave some answers, were those from having practiced those answers or did you really remember?

A I remembered.

Q And was there a time back in August of 1991 when you didn't really remember?

A Yes.

Q You didn't?

A Not all of it.

Q Well, you remember more of it now than you did then?

A A little, yeah.

Q That's because you went over it a lot of times?

A A little.

(Id. at 616-17.)

Defense counsel failed to demonstrate to the jury the fact that J.N. had outright denied the facts of the sodomy allegation that was charged in Count Eleven of the indictment or that the Grand Jury testimony and the trial testimony were quite inconsistent with respect to whose mouth was placed on whose penis.

e. Jury Verdicts on Charges Related to J.N.

The jury convicted Jelinek on all seven of the counts in the indictment charging J.N. as the victim.

f. Disposition of Charges Related to J.N. on Appeal

The Appellate Division dismissed four of the seven counts of conviction relating to J.N. because these counts were duplicitous — meaning that there was evidence at trial of multiple crimes for which the jury might have found the defendant guilty with respect to each of these counts, leaving it unclear whether the jury had decided unanimously to find Jelinek guilty for the same conduct. The dismissed counts were for sexual abuse in the first degree with respect to the four alleged incidents in which Jelinek touched J.N.'s buttocks and penis. The remaining convictions, including that for first-degree sodomy, were affirmed.

2. Child J.C.

Jelinek was charged with a number of counts alleging that he improperly touched and sodomized J.C., an eight-year-old boy who was a friend of one of his sons and whom he coached in Little League. As was the case with the sodomy count relating to J.N., the evidence offered at trial with respect to the alleged sodomy of J.C. varied from what was charged in the indictment. Specifically, Jelinek was charged with putting his penis to the anus of J.C. at Jelinek's home, but evidence at trial indicated only that such an incident occurred at a public beach.

a. Charges Relating to J.C.

In all, eight counts in the indictment were for conduct in which J.C. was the alleged victim. Jelinek was accused of sodomy in the first degree relating to two incidents. In Count One — as amplified by the bill of particulars — he was charged with putting his mouth on the penis of J.C. in his home on or about June 1991. In Count Seven he was charged with placing his penis on the anus of J.C. at his home on or about July 1991.

Jelinek was accused of sexual abuse in the first degree relating to another five alleged incidents. In Count Two, he was charged with touching the penis of J.C. in his home on or about June 1991. In Count Three he was charged with touching the penis of J.C. at Tobay Beach, in Nassau County, on or about July 1991. In Count Four he was charged with rubbing his penis against the leg of J.C. at Tobay Beach on or about July 1991. In Count Five he was charged with touching the penis of J.C. in his home on or about June 1990. In Count Six he was charged with touching J.C.'s buttocks at his home on or about June 1990.

In Count Eight Jelinek was charged with the misdemeanor offense of endangering the welfare of a minor, J.C., by, on or about and between June 1990 and July 1991, engaging in sexual acts in the presence of and upon the person of J.C. — a charge which, as the prosecution explained to the jury, "incorporates the other acts, the touching of the penis, the touching of the buttocks, and the other acts alleged in the earlier counts of the Indictment with respect to [J.C.]." (Trial Tr. at 104.)

b. Grand Jury Testimony of J.C.

J.C. then told the Grand Jury that Jelinek, in June 1991 at his house, "asked me to sit on his lap and I sat on his lap. And Jason . . . was upstairs, and me and [the defendant] went downstairs in the living room watching TV, and he would put like — he would touch me in my private spots and put his mouth on my weenie." (Id. at 14.) Before the Grand Jury in September, J.C. testified that J.N. was also present during this incident.

J.C. next described an incident that allegedly occurred at Tobay Beach in July 1991. He and a number of boys — including alleged victims J.N. and B.D., as well as Jelinek's sons Michael and Jason — had been taken to the beach by Jelinek. At one point everyone was swimming except for J.C. and Jelinek. J.C. testified that Jelinek wrapped a towel around him, sat him on his lap, touched J.C.'s penis over his bathing suit, and "put his weenie on my leg and rubbed it." (Id. at 16-17.) J.C. did not testify about the rubbing incident at trial.

After describing the Tobay Beach incident, J.C. further testified that his "butt" had hurt:

Q Do you remember telling your mommy you hurt someplace?

A Yes.

Q Where did you hurt?

A My butt.

Q When you told your mommy you hurt in your butt, did you know why you hurt in your butt?

A Yes.

Q Can you tell the Grand Jurors why you hurt in your butt?

A Roger Jelinek did it.

Q What did Roger Jelinek do?

A He put his weenie on my butt.

Q When you say he put his weenie, that's he put the same kind of thing that you have, right?

A Yes.

Q He put that in your butt? Did he actually put it inside?

A No, not really.

Q Did he touch your butt with his weenie?

A Yes.

(Id. at 17-18 (emphasis added).) It is not clear from the August Grand Jury testimony whether this incident occurred at Tobay Beach, but during his September Grand Jury appearance, J.C. testified that it was while in Jelinek's house in July 1991 that Jelinek "put his weenie on my butt," leading him to eventually tell his mother that he had pain in the buttocks area. (Sept. 27, 1991 Grand Jury Tr. at 21-22 (emphasis added).)

Finally, J.C. testified at the Grand Jury that, sometime between the middle of June and the middle of July 1991, he witnessed the defendant "put his mouth on [J.N.'s] weenie " at Jelinek's home. (Aug. 22, 1991 Grand Jury Tr. at 19 (emphasis added).)

c. State Examination of J.C. at Trial

Just prior to J.C.'s testimony, defense counsel learned that J.C. would testify concerning uncharged criminal acts allegedly performed by Jelinek. Defense counsel objected that the defense was unfairly surprised by the prosecution and moved to preclude such testimony as fatally prejudicial. The court denied the motion after defense counsel inaccurately conceded that he had not requested a bill of particulars with respect to the charge of endangering the welfare of a child.

J.C., who was now ten years old, testified, as he had before the Grand Jury, that on several occasions Jelinek tickled him or touched him on his "private spots." (Trial Tr. at 392.) He then testified about criminal acts that were not specifically charged in the indictment:

Q Now, in June of 1990 when you were inside of the house and you say this happened, [J.C.], was there anybody else there?

A Yes.

Q Who else was there?

A [J.N.] and Jason Jelinek.

Q Now, [J.C.], in June of 1990, can you tell us what, if anything, you saw Roger Jelinek do to other people?

A I saw him put [J.N.'s] weenie in his mouth.

Q Who was present at the time?

A What does present mean?

Q Who else was there?

A Jason Jelinek.

(Id. at 393-97 (emphasis added).) Jelinek was not charged in the indictment with putting the penis of J.N. in defendant's mouth in June of 1990; rather, he was charged with performing a similar act in June or July of 1991. At the Grand Jury, J.C. said defendant put his mouth on J.N.'s penis, while at the trial he said defendant put J.N.'s penis in defendant's mouth. As noted above, during the trial J.N. testified that defendant put his penis in J.N.'s mouth, and flatly denied that the defendant had placed J.N.'s penis in defendant's mouth.

J.C. did testify that in June of 1991 Jelinek put his mouth over J.C.'s penis, an act that was charged in the indictment;

Q [I]n June of 1991 can you tell us what, if anything, Roger Jelinek, the defendant, did to you?
A Well, he still touched me on my private spots and he put my weenie in his mouth.
Q Now, when you say he still touched your private spots, can you tell us how many times that happened in June of 1991, approximately?

A Five times.

Q And was that both of your private spots?

A Yes.

Q And where did that happen?

A Either at his house or at the beach.

Q And when you say he put your weenie in his mouth, where did that happen?

A At his house.

(Id. at 397-98.)

J.C. was next queried about an incident in which Jelinek allegedly placed his penis to J.C.'s anus. J.C.'s testimony at the Grand Jury indicated the incident occurred at Jelinek's home, the bill of particulars indicated the incident occurred at Jelinek's home, and the jury was advised in the prosecution's opening that the state would prove that the incident occurred at Jelinek's home. Nonetheless, J.C. unequivocally denied at trial that such an incident occurred at Jelinek's home:

Q Now, [J.C.], I next want to ask you about July of 1991. Can you tell us what, if anything, the defendant did that time in July of 1991?

A At his house or at the beach?

Q Let's start with at his house.

A Nothing happened at his house, but at the beach things happened.

Q What is it that would happen at the beach?

A In July, 1991, when I went to the beach with him —. . . . with his son, Jason, Michael, Brett, [J.N.], and he was sitting in a chair.

Q Who is "he"?

A Roger Jelinek. And he told me to sit in his lap, and I sat in his lap, and he put a towel around us and he touched my private spots, and he put his weenie in my butt.
Q Now, where were the other boys that you say went to the beach with you at that time?

A In the water.

Q Now, [J.C.], how many times since you've known Mr. Jelinek, Roger Jelinek, has he put his weenie on your butt?

A Once.

Q And what did you do after that happened?

A I went home and I told my mom that my butt hurt.

Q And what did she do?

A She put Vaseline on it.

Q Now, other than at the beach in July of 1991, at any time, other time, during that month, did Mr. Jelinek do anything to you?

A No.

(Id. at 398-400 (emphasis added).) It will be noted that the direct testimony of J.C. was not consistent with respect to whether defendant's penis was placed "in" or "on" J.C.'s "butt." Testimony of J.C. before the Grand Jury that a butt-penis incident occurred at defendant's home was inconsistent with testimony at trial that it occurred at the beach.

Finally, J.C. provided the only testimony in support of the charge that Jelinek put his mouth to J.N.'s penis, stating that he "saw [Jelinek] put [J.N.'s] weenie in his mouth" between June and July of 1991. (Id. at 400.) J.N. himself, as already noted, flatly denied at trial that this incident occurred.

J.C. did not testify about the incident he described before the Grand Jury during which Jelinek allegedly rubbed his penis against J.C.'s leg at Tobay Beach. As pointed out below, although no evidence of this alleged crime was offered at trial, Jelinek was nonetheless convicted of it.

d. Defense Examination of J.C. at Trial

On cross-examination, defense counsel tried to establish that J.C. had been subjected to suggestive and unreasonable questioning by the state officials who first interviewed him. This was a strategy counsel deployed throughout the trial, presumably in anticipation of arguing at closing that the children's testimony was largely the product of suggestion. As was the case with respect to his questioning of J.C., this examination strategy yielded very little of substance from any of the children that might be used in support of such an argument.

Counsel did elicit from J.C. an acknowledgment that he never told his parents about any of these incidents. J.C. also stated, however, that he was interviewed by police detectives for less than an hour and that the detectives did not tell him they thought Jelinek had done anything wrong:

Q Well, you're outside with the two detectives and they told you that they are police detectives and you have seen their badges. What's the next thing that they said?

A They asked me if I knew Roger Jelinek.

Q What did you say?

A Yes.

Q What's the next thing they said?

A They asked me if he did anything to me.

Q Now, did they suggest to you the type of things that they thought he had done?

A No.

Q Did they tell you any type of things that they thought he might have done?

A No.

Q Now, did you want to help the police?

A No.

Q Pardon me?

A No, I just told them my story.

Q Now, you talked to them for two hours?

A I didn't talk to them for two hours. They talked with my whole family for about two hours.

Q For how long did you talk to them?

A 45 minutes, half an hour.

(Id. at 403-04.)

Defense counsel proceeded to cross-examine J.C. about the sodomy incident allegedly perpetrated at Tobay Beach — an accusation, as noted above, that at least with respect to location and to whether or not Jelinek's penis was "in" or "on" J.C.'s butt — varied from what was charged in the indictment:

Q Now, when you went to the beach did the defendant take you alone or were there other people there?

A There were other people there.

Q And you say something happened with the towel. Did you bring the towel?

A No.

Q You went to the beach without a towel?

A I went to the beach with a towel, but it wasn't my towel that ...

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