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People v. Marek

OPINION FILED DECEMBER 31, 1980.

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

v.

GAIL MAREK ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. FRED G. SURIA, Judge, presiding.

MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

On August 16, 1975, four persons died as a result of a fire which occurred at 2802 South Austin Avenue in Cicero. Lillian Weisner, the owner of the building, and Gail Marek, Weisner's daughter, were charged in the circuit court of Cook County by a 13-count indictment with arson and with the murders of Jannett Jundt and Jundt's three children, Joseph, Charles, and Elisa Maldonado. Directed verdicts were granted in favor of the defendants on the counts which charged knowing and intentional murder. The remaining nine counts went to the jury. The defendants were found guilty of murder and arson. They were sentenced to 25 years on each murder charge and 5 years on the arson charges, the sentences to run concurrently. Marek and Weisner appealed. Their appeals were consolidated and they filed joint briefs. Weisner's appeal was dismissed on March 13, 1980, following her death. On appeal, Marek (the defendant) argues (1) the trial court committed reversible error in denying her motions to suppress oral and written statements; (2) the trial court should have declared a mistrial or should have stricken testimony recounting her oral statements because the substance of these statements was not disclosed pursuant to discovery; (3) the trial court should have granted her motion for acquittal because the State failed to prove the corpus delicti beyond a reasonable doubt; (4) the trial court should have granted her motion for a mistrial because the State's Attorney told the jury that she had been on probation; (5) the trial court improperly redacted her confession; and (6) the trial court abused its discretion in admitting evidence after the close of all the evidence where the defendants were not allowed to introduce evidence in rebuttal.

We first relate the facts concerning the issue of whether the trial court erred in denying the defendant's motions to suppress. She was interviewed in the early morning hours of August 17, 1975. She returned to the station at 7 o'clock that evening. She gave two written statements either that evening or early the following morning.

According to the initial paragraphs of the first written statement, it was taken at approximately 11:45 p.m. on August 17, 1975, in the detective's room of the Cicero Police Department. Assistant State's Attorney Lawrence O'Gara, Assistant State's Attorney Ronald P. Stronjy, Cicero Police Department Detective Jack Oden, and Cicero Fire Department Inspector Harold R. Adams were present. The questioning was conducted by O'Gara. Edward Stabrawa was the court reporter.

O'Gara read the defendant each of the Miranda warnings. After each warning he asked her whether she understood, and in each instance she answered that she did. O'Gara then asked the defendant whether she wanted to talk to him without having a lawyer present. She answered that she did. He asked her whether she understood that she could stop talking to him at any time and that she could demand a lawyer at any time. She answered yes. O'Gara asked the defendant whether she wished to make a statement and the defendant began her statement.

The defendant stated that she went to Weisner's home at 2802 South Austin, at approximately 5 p.m. on August 16, 1975. She brought her youngest child in the house for a nap. She, her two older children, and Weisner went outside. After a while Jannett Jundt and her three children, who lived in the upstairs apartment, arrived home from the laundromat. The defendant had known Jundt for approximately two years.

At approximately 11:30 that evening the defendant, her husband, her children and Weisner were in the first floor apartment of Weisner's house. Jundt, her three children and her husband, Ernest, were in the upstairs apartment.

Weisner and the defendant had a conversation concerning a fire. According to the defendant, Weisner wanted to set fire to the house at 2802 South Austin in order to collect on the insurance. Weisner said that she had hired a person for $25,000 to set fire to the house but that she was unable to obtain the money. Weisner told Marek that she had asked "Mike the Mouse" if he would set the fire. He agreed to do so if Weisner would pay him $400 before the fire was set and $400 afterwards. Weisner offered the defendant's husband $500 to set the fire. He refused. Weisner then said, "We got to do it." The defendant asked, "What about them upstairs?" Weisner answered, "We'll just have to yell."

Weisner went into the back bedroom with the defendant, the defendant's husband, and the defendant's youngest child. The defendant went to the bedroom closet where clothes were being stored. She had a matchbook from Walgreens in her hand. She lit a match and dropped it on a bedspread which was in the closet. Then Weisner lit a book of matches and put it in the closet. The defendant's husband yelled, "Don't, don't." The fire started blazing. All the clothes in the closet caught fire. The defendant grabbed her children. She was standing in the hallway yelling for Jannett Jundt. Weisner called for Jannett and Ernie Jundt shouting, "The house is on fire." The defendant heard Ernie Jundt say "Yeah." The defendant, her husband, her children, and Weisner ran out the front door. The defendant related that she did not think that the whole house would catch fire. She just wanted one room to be burned.

The defendant signed and initialed each of the 15 pages of the first written statement. O'Gara and Oden signed as witnesses.

The initial paragraphs of the second statement stated that it was given at 4 a.m. on Monday, August 18, 1975, at the Cicero Police Department. Present were O'Gara, Oden, and the defendant. Stabrawa was the court reporter. O'Gara readvised the defendant of her constitutional rights. She was asked whether she understood each of them and answered that she did.

The defendant was asked whether, after signing and initialing the first statement, she had told O'Gara that something contained in the first statement was not true and correct. The defendant answered that, contrary to what she had told O'Gara during the first statement, her husband was not present at Weisner's house at the time of the fire. She stated that everything else in the first statement was true. The second statement was signed and dated by the defendant. O'Gara and Oden witnessed the signature.

At the hearing on the motion to suppress, August F. Mazzona testified that at the time of the fire he was chief arson investigator for the State of Illinois Department of Law Enforcement, Division of Fire Prevention. On August 17, 1975, at approximately 4 a.m. Mazzona interviewed the defendant and her mother at the Cicero police station. Cicero Police Inspector Adams and Cicero Police Officer Biziarek were present during this interview.

Mazzona conducted a second interview with the women at approximately 7 or 7:30 that evening. This interview took place in the detective room of the Cicero Police Department. Present were Mazzona, the defendant, and Cicero Police Officer Wilson. Mazzona read the Miranda warnings to the defendant from a form. After each item he asked her whether she understood. He handed the form to the defendant. She looked at it for a few minutes and then signed it. Mazzona and Wilson signed as witnesses to the defendant's signature. Mazzona questioned the defendant for an hour and a half to two hours. He then left the room for approximately 5 to 10 minutes. At that time Oden and Wilson and one other detective were present. Fire Inspector Adams may also have been present.

The defendant appeared highly nervous, but answered questions. At one point she said she was sick and indicated that she might vomit. She did not vomit but did spit into a wastepaper basket.

On cross-examination, Mazzona testified that the detective room in which the interview was conducted was approximately 14 feet by approximately 12 or 13 feet. He stated that there were no Miranda warnings given during the morning interview because the defendant was not a suspect at this time.

The morning interview lasted from 4 until 4:30 or 5. The evening interview began at approximately 7:30 or 8, and continued for an hour and a half or two hours. Mazzona, Wilson and the defendant were the only persons in the room. During that period no one else entered the room, with the possible exception of someone who may have brought coffee or water to the door for the defendant. During this time the defendant sobbed occasionally. Although she complained on one occasion that she was nauseous, she did not ask to go to the washroom. At no time during this two-hour period did the defendant complain that she was tired. Rather, she told Mazzona that during the time between the morning and evening interviews she had slept at her home. Mazzona did not remember the defendant asking to see either her mother or her husband.

When Mazzona left the room after an hour and a half to two hours, Oden entered the room. Adams may have entered the room with Oden. Mazzona was gone for about 10 minutes and then was called back into the room. He stayed in the room for approximately 10 minutes. He then left the room again for 5 or 10 minutes. It was then approximately 10:30 or 11 p.m. The Assistant State's Attorney arrived shortly thereafter. The Assistant State's Attorney waited for a court reporter.

In response to a question asked by defense counsel, Mazzona admitted that he had included the following statement in a report he prepared on August 19, 1975:

"Approximately 1:00 A.M., Sunday, August 17, State's Attorney's Office was called and two Assistant State's Attorney's arrived at the Cicero Police Station where they obtained a statement from Gail Marek, Lillian Weisner, Carl Marek and Jerry Weisner."

Someone at the police station told Mazzona that Weisner had asked for insulin, which was given to her. In response to a telephone call made by the police department, someone, whom the witness believed to be Weisner's husband, came to the station "with her needs."

Cicero Police Department Detective Jackie Oden testified that at approximately 9:30 p.m. on August 17, 1975, he interviewed the defendant. Cicero Fire Department Inspector Adams was also present. Prior to the interview Oden read the Miranda rights to the defendant. After reading each right he asked her whether she understood. Each time she answered that she did. The defendant then made a statement concerning the fire. Oden notified State Investigator Mazzona of the statement and asked him to come into the room. Mazzona asked her some questions and left the room again. Oden continued to interview the defendant. Oden then called his partner, Detective Wilson and Mazzona into the room. The defendant then gave further statements. Oden then called the Assistant State's Attorney's office. Assistant State's Attorneys Ronald Stronjy and Lawrence O'Gara arrived at the Cicero Police Station at approximately 11 p.m. The court reporter arrived sometime before 12 a.m. While they were waiting for the court reporter, O'Gara introduced himself, read the defendant her Miranda rights, and asked her to repeat the statement that she had given previously. She did so. Present were O'Gara, Stronjy, Adams, Oden and possibly Wilson. O'Gara then took a statement from the defendant in the presence of a court reporter. The same men were present during this interview. During the interview Cicero Police Officers Biziarek and DeFalco entered the room.

"Quite a few hours later, maybe two," the statement had been typed up by the court reporter, the defendant had read and signed each page, and O'Gara asked the defendant, as she was reading the pages, if everything in the statement was true and correct. The defendant answered no, that there was something she would like to change. She made an additional statement.

During the second written statement, O'Gara, Oden, the defendant, and the court reporter were present. Oden could not remember if anyone else was present. The defendant appeared nervous and apprehensive. Her answers were responsive to the questions. Neither he nor anyone in his presence mentally or physically coerced either the defendant or Weisner.

On cross-examination Oden testified that it had taken the defendant approximately one-half hour to read the first written statement once it had been transcribed. At no time did he hear her ask for any coffee. Oden stated that the defendant asked to talk to her mother and to her husband, which was allowed. The defendant did not ask for a lawyer. She did not say that she was nauseous or ill. Oden did not see anyone give her a wastepaper basket to spit into. She did not ask for a drink of water at any time. She did not ask to go to the bathroom until after she made the statements. According to Oden the defendant was sobbing at different times during the interview. The defendant did not make any reference about her children to Oden.

Cicero Police Detective James DeFalco testified that at approximately midnight on April 17, 1975, he entered the detective room of the Cicero police station in order to obtain some of his equipment. The defendant was being questioned. He did not recall anything that was said to the defendant, since he was not paying attention and believed that they had stopped talking when he walked in.

On cross-examination, he testified that the only persons he can specifically remember being in the detective room were Oden, Mazzona, and the defendant. DeFalco's shift began at approximately 11 o'clock that night, but he did not walk into the detective room immediately as he did not want to interrupt the interview.

Investigator Adams testified that he had been employed for more than 17 years by the Cicero Fire Department, Illinois Fire Prevention Bureau. He interviewed Weisner and the defendant at the Cicero police station at approximately 4 a.m. on April 16, 1975. Also present during the interview were Mazzona and Cicero Police Officer Biziarek. He did not consider either Weisner or the defendant to be suspects at that time. Weisner and the defendant each gave a statement with respect to the origin of the fire. They stated that they were tired and they asked if they could leave. They were allowed to go home, but were told that they might possibly be called for further questioning.

Later that day Adams telephoned both women and asked them if they would return to clarify a few points in their statements. The defendants returned to the station at approximately 7 p.m. Adams interviewed the defendant's husband for approximately one hour. He then talked with the defendant. Also present during this interview were Oden and Adams. The interview lasted about 10 minutes. The defendant gave information about the fire. Adams then called Detective Wilson and Investigator Mazzona, who were in the interview room for approximately 10 or 15 minutes. Some time thereafter there was a call made to the State's Attorney's office. At approximately 11 p.m. two Assistant State's Attorneys arrived at the station, one of whom was O'Gara. Adams, Oden, and Wilson were present as the Assistant State's Attorney took a statement from the defendant in the presence of a court reporter.

Later the defendant gave another statement. Adams could not remember what time that statement was taken. Throughout the questioning, the defendant appeared nervous, Weisner appeared calm and somewhat on the aggressive side.

On cross-examination Adams stated that during the morning interview the defendant did not cry. After further questioning, he stated that she did. While she was sobbing, she stated, "You won't take my son away from me, will you?" Adams had not asked her any questions about her son prior to this statement.

Adams stated that during the evening interview he did not remember discussing the defendant's son with her. He did not remember hearing anyone telling the defendant that if she did not confess that the police would take her children away from her and that she would never see her family again. During the evening interview, the defendant may have been crying.

On further cross-examination Adams stated, in reference to the evening interview, that he first talked to the defendant at about 10 p.m., approximately three hours after she arrived at the station. During that interview Mazzona and Wilson were present. The witness did not remember whether the defendant had asked or been allowed to use the bathroom. He did not remember the defendant telling him that she was nervous and wanted to vomit. When asked whether the defendant's hair was well kept or disheveled at the time of the evening interview, the witness answered that it was about the same way as it was on the day of his testimony. He described her hair on the day of his testimony as not being "combed and brushed like she were going out somewhere special." Rather, it was ...


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