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People v. Bowen

OPINION FILED JULY 25, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

EVERETT BOWEN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. MARVIN J. PETERS, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

___ N.E.2d ___ After a jury trial, defendant was convicted of murder (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a)(2)) and arson (Ill. Rev. Stat. 1977, ch. 38, par. 20-1) and sentenced to serve a term of 100 to 150 years. On appeal, defendant presents these arguments: (1) his confession was involuntary; (2) the trial court erred in refusing his involuntary manslaughter instructions; (3) the trial court erred in precluding testimony of his expert witness; (4) the trial court abused its discretion in refusing to read a list of witnesses to the first panel of jurors; and (5) the case should be remanded in light of the recent Supreme Court decision in Dunaway v. New York (1979), 442 U.S. 200, 60 L.Ed.2d 824, 99 S.Ct. 2248. We affirm the trial court.

I. MOTION TO SUPPRESS DEFENDANT'S PRE-TRIAL STATEMENTS

A fire occurred on July 2, 1977, at 4:30 a.m. at the home of Mr. and Mrs. William Booth. Mrs. Evelyn Bowen, defendant's spouse, and her four children were living in the Booth household at the time. Three of the children perished in the fire. Mrs. Bowen and another son escaped. The Booth family was away in Wisconsin.

Defendant was spotted at the scene of the fire at 8:15 a.m. He asked where the children were and was told that his children had died in the fire. He responded, "You're kidding me." Northlake Police Officer Thomas O'Cull asked defendant to go down to the Northlake police station to speak with detectives there but he was not told he was under arrest, nor was he handcuffed or searched. He agreed to go and was transported to the station in a squad car. Sergeant Gilliam gave him Miranda warnings. Defendant stated that he understood his rights and signed a waiver of rights form. When asked about his activities of the previous evening, he stated that he went to his brother-in-law's house to talk with his wife concerning insurance matters but did not go into the house. He kicked in the front door of the house, left, and went back to his house. After leaving his house, he spent the evening drinking at a tavern until 3 a.m. and then returned home.

Assistant State's Attorney Patrick O'Brien arrived at the station to talk with defendant and again advised him of his rights. Defendant indicated he understood, and denied starting the fire. He volunteered to take a polygraph test, but there was no technician on duty to administer the test. He was then taken to Cook County morgue to make a positive identification of the children, whereupon he broke down and cried for a short period when the last of his children had been identified.

After obtaining defendant's consent to search his apartment, Detective Peters and Mr. O'Brien talked with his upstairs neighbor, Cynthia Duda Benson, and she told them that she heard his van leave early in the morning of July 2, 1977. When O'Brien returned to the station, defendant was speaking with his minister. After the minister left, he was again questioned but denied moving his van on the morning in question.

O'Brien determined there was insufficient evidence to hold defendant but he was asked to return to the station the next morning to take the polygraph test. The following morning defendant accompanied Sergeant Gilliam and Detective Peters to Joliet for the test. He was not questioned on the way to Joliet. Prior to the test, he was asked by technician Dennis Luporini if he understood his Miranda rights, whereupon he indicated that he had previously taken a polygraph test in connection with his employment. Technician Luporini analyzed the results of the test and determined defendant had not told the truth in regard to the fire investigation. Subsequently, he was confronted with the results of the test but denied that he had lied. Detective Peters questioned him on the return trip from Joliet. Neither Sergeant Gilliam nor Detective Peters yelled at, accused, or threatened him.

Chief Lee Gehrke requested to speak with defendant. He asked him whether he had returned to the station voluntarily and defendant indicated that he had. Gehrke informed defendant that his rights were still in effect and that he could leave the station any time. He indicated that he understood. Chief Gehrke went over defendant's version of what had transpired the evening of July 1, 1977, and the early morning of July 2, 1977. Defendant twice denied setting the fire. Gehrke then said to him, "Everett, if you had anything to do with that fire now is the time to make peace with yourself, your God, and your children." Gehrke stated that defendant started to cry and said, "I can't stand it any longer. I started the fire." Defendant indicated that when he left the tavern in Northlake he walked to the Booth house, went to the side window, took out a cigarette lighter and lighted the curtains or drapes. He closed the window, walked back to his van and returned home, remaining there until he received a telephone call from a friend telling him about the fire.

Chief Gehrke learned from defendant that the cigarette lighter he had been using to light his cigarettes was the one used to start the fire. Gehrke confiscated the lighter as evidence and told Detective Peters to notify the State's Attorney's office.

Defendant spoke with his minister after his statement was taken. Up until the time his statement was made he was not under arrest and no charges had been placed against him.

Assistant State's Attorney Mark Tobias took defendant's written statement, again advising him of his rights. After the statement was transcribed, Tobias read the contents of the statement to him. Defendant initialed each page of the statement.

The next morning defendant requested to be taken to the Northlake Funeral Home. As he left the funeral home, he remarked, to no one in particular, "God knows I didn't want to do it, but Evelyn made me."

Later that day, assistant State's Attorney Colin Simpson read page 8 of defendant's confession to him wherein he admitted starting the fire, and asked him whether that was the statement he had told Mr. Tobias. Sergeant Gilliam testified that defendant told Mr. Simpson that he had confessed "Because it's true, I did it."

Defendant made a motion to quash the arrest and a motion to suppress statements. He did not testify at the motion to suppress statements. The trial court found that he had not been arrested until after he had made the written statement. The court further found his confession to be voluntary and that he waived his rights under Miranda.

II. TRIAL

Mrs. Bowen testified that she had contacted an attorney in May 1977 for the purpose of obtaining a divorce. Mrs. Bowen indicated that defendant pleaded with her not to do it. On May 29, 1977, Mrs. Bowen stated that defendant tried to drag her to bed. She struck him with a ...


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