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People v. Fox





Appeal from the Circuit Court of Peoria County; the Hon. Stephen J. Covey, Judge, presiding.


Rehearing denied January 26, 1983.

Following a jury trial, the defendant, Perry Fox, was convicted of aggravated arson and sentenced to a minimum term of six years imprisonment. In this appeal the defendant contends that the trial court erred in denying his motion to suppress his confession. He also contends that even if his confession was properly admitted into evidence, he was denied a fair trial because references in the confession to the sexual gratification he received from setting fires were irrelevant and highly prejudicial.

A fire broke out on the second floor of the Continental Regency Hotel in Peoria, Illinois, during the night of April 14-15, 1981. In the course of investigating this fire, Peoria police detective Dean Dearborn and Peoria Fire Department investigator Ernest Russell spoke to the defendant, an employee of the hotel, in the main lobby around 5:30 a.m. The defendant was asked about his whereabouts at the time of the fire, his working hours and duties, the identity of his co-worker, and was asked to describe any suspicious persons he might have seen in the hotel that night. At the conclusion of this conversation, which lasted about 15 minutes, Detective Dearborn and investigator Russell told the defendant that they might want to talk to him again.

Later in the day on April 15, officers from the police and fire departments were given the use of a hotel room in which to conduct interviews of hotel employees and guests. A total of six or seven guests and seven or eight employees, including the defendant and a co-worker, David Banks, were interviewed.

When the interviews began, the officers had a number of suspects, including the defendant, Banks, a hotel guest and an individual who had argued with someone at the front desk on the night of the fire.

The defendant was directed by his boss to go to Room 3702 of the hotel to be interviewed. Two fire department investigators, Captain Parker and Captain Wolgan, and two police officers, Detective Dearborn and Officer Ulrich, questioned the defendant from approximately 5:05 p.m. until 7:30 p.m. None of the officers was in uniform, although all introduced themselves to the defendant as police or fire department investigators.

During the questioning, various discrepancies between the defendant's statements and those of David Banks became apparent. For example, Banks reported that he and the defendant had smoked in the Left Bank area of the hotel on the night in question. The defendant denied smoking at all that night. The defendant also stated that he did not return to the second floor after he and Banks left the Left Bank area and went to the basement where they ate lunch and then set up a room for hotel guests. The statement was refuted by a paper sack with a sales receipt inside found in front of Room 2206. The receipt had the name "Fox" on it. Fire investigator Wolgan checked with the Avanti store and found that no one other than the defendant had ordered a sandwich for delivery to the hotel on the night of April 14. Additional discrepancies were evident when the defendant stated that he and Banks were together at all times; whereas Banks told the officers that he and the defendant were not together the entire evening.

The defendant was confronted with the discrepancies between his story and those of other employees. He was asked if he would be willing to take a polygraph examination. It was explained to him that the test was voluntary and would aid the police in their investigation by clearing up discrepancies in the statements they had taken. At the suppression hearing, the defendant admitted that he voluntarily agreed to take the polygraph examination at a private examiner's office. Both Captain Parker and Detective Dearborn testified that the defendant was not the only suspect at that time.

The three officers who were present during the questioning of the defendant in the hotel room and who testified at the suppression hearing stated that the defendant was free to leave the hotel room at any time and that no threats or promises were made to him. The defendant testified that he asked if he could go but that his questions were ignored. The defendant was offered something to eat several times throughout the evening and soda crackers, cheese and peanut butter were brought to the hotel room. The defendant declined food but drank a soda.

During the 45 minutes wait before the polygraph examination could be arranged the television set was turned on and the defendant watched television. The defendant never asked that the interview be discontinued, nor did he claim that he was ill.

Captain Parker offered to drive the defendant to the polygraph examiner's office. The defendant accepted the offer and at approximately 9 p.m., he arrived with officers Parker and Dearborn at the firm of Dennis Jenkins and Associates. Michael Terrell, an employee of the firm who administered the polygraph test to the defendant, was briefed by Captain Parker concerning the fire and the discrepancies between the defendant's statements and those of others.

Terrell administered the series of three minute tests to the defendant after first reading him Miranda-type warnings which are customarily given to all persons before a polygraph examination. The defendant read the rights form and signed it.

About 1 1/2 to 2 hours after beginning the examination, Terrell exited his office and informed Detective Dearborn that the defendant had made an oral admission and wanted to speak to him. Dearborn and Parker had ...

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