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01/26/87 the People of the State of v. Donald Dunnegan

January 26, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DONALD DUNNEGAN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

503 N.E.2d 823, 151 Ill. App. 3d 973, 104 Ill. Dec. 961 1987.IL.56

Appeal from the Circuit Court of Ogle County; the Hon. John L. Moore, Judge, presiding.

APPELLATE Judges:

JUSTICE HOPF delivered the opinion of the court. LINDBERG, P.J., and NASH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

Defendant, Donald Dunnegan, was charged with reckless homicide (Ill. Rev. Stat. 1983, ch. 38, par. 9-3(a)) and concealment of a homicidal death (Ill. Rev. Stat. 1983, ch. 38, par. 9-3.1(a)). At a pretrial hearing on defendant's motion to suppress his statement the motion was denied, and the case proceeded to trial. Following a bench trial, defendant was found guilty on both charges and was sentenced to one year in the Department of Corrections for the offense of reckless homicide and two years' probation for the offense of concealment of a homicidal death. This appeal ensued.

In this court defendant contends: (1) the trial court erred in denying defendant's motion to suppress his statement; (2) the evidence adduced at trial failed to establish defendant's guilt beyond a reasonable doubt of reckless homicide; (3) the evidence adduced at trial failed to establish defendant's guilt beyond a reasonable doubt of concealment of a homicidal death; (4) the indictment for concealment of a homicidal death failed to state an offense; and (5) the trial court erred in sentencing defendant to a term of imprisonment for reckless homicide.

On April 18, 1985, defendant, Robert Hartz, and Joseph Russell were on their way from Maustin, Wisconsin, to Iowa with a load of recycled axles and wheels for mobile homes. The men sat three astride on a bench seat of a pickup truck which was hauling a trailer full of axles. The three men had consumed a 12-pack of beer purchased in Maustin and part of another 12-pack purchased in Janesville, Wisconsin. En route to Iowa, defendant stopped the truck and trailer on the shoulder of the southbound lane of Highway 51 near Rochelle, Illinois, so the parties could urinate.

After urinating, defendant reentered the truck, Hartz slid in next to defendant, and the door closed. Defendant put the truck into gear and started off. Russell began running to get into the truck. Hartz held the passenger door open so Russell could jump in the truck but Russell slipped and rolled under the trailer. After defendant had stopped the truck and backed it up so Russell's body could be freed from the trailer tires between which it had become wedged, Hartz and defendant put the body in the truck. They proceeded to Dixon, Illinois, where they stopped at Hardee's for something to eat and at a phone booth so Hartz could call his girlfriend. The men then proceeded to the emergency room of the hospital in Dixon, arriving there at about 8:30 p.m. Russell was pronounced dead.

Subsequently, James Kerns, a special agent with the State Police Criminal Investigation Division, arrived at the hospital about 10:30 p.m. to investigate the incident. Kerns spoke privately with defendant in an examining room which was across the hall from the waiting area of the emergency room. At about 11:17 p.m. Kerns taped defendant's statement regarding the incident.

In defendant's motion to suppress defendant contended that his statement was procured pursuant to a custodial interrogation by Kerns and that, prior to the interrogation, defendant was not informed of his Miranda rights. At the hearing on defendant's motion to suppress, Agent Kerns and Robert Hartz testified on behalf of the State. Defendant testified on his own behalf. At the Conclusion of the suppression hearing, the court found that defendant was not in custody at the time he gave his statement to Kerns and, therefore, the statement was admissible.

The case proceeded to a bench trial with testimony presented by the three State police troopers involved in the investigation of the crime scene, by a husband and wife who observed defendant and Hartz consuming food at Hardee's after the incident and prior to the men's arrival at the hospital, by a patient present in the emergency-room waiting area with whom defendant conversed, by Agent Kerns, by Robert Hartz, and by the defendant. Facts brought out through the testimony presented at these hearings will be included in this opinion where appropriate.

After hearing all the evidence and arguments of counsel, the trial court found defendant guilty of both reckless homicide and concealment of a homicidal death. At a subsequent sentencing hearing, defendant received a term of one year's incarceration on reckless homicide and two years' probation on concealment of a homicidal death.

In his first contention defendant maintains that the trial court erred in denying his motion to suppress the statement given by him to Agent Kerns on the night of the incident since defendant was not read the warnings required by Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, prior to the giving of his statement.

The Miranda warnings are required to precede only statements made as a result of custodial interrogation. (People v. Romano (1985), 139 Ill. App. 3d 999, 1009, 487 N.E.2d 785.) To determine whether a statement was made in a custodial setting, the court must focus on all of the circumstances surrounding the questioning, with no single factor deemed controlling, to decide whether the defendant was in custody or deprived of his freedom of action in any significant way prior to the questioning. (139 Ill. App. 3d 999, 1009, 487 N.E.2d 785; People v. Savory (1982), 105 Ill. App. 3d 1023, 1028, 435 N.E.2d 226.) Several factors are relevant to this inquiry: (1) the place of the interrogation; (2) any statement or nonverbal conduct indicating an accused is not free to leave; (3) the extent of the knowledge of the police officers and the focus of their investigation; (4) the intentions of the police officers; and (5) the objective circumstances surrounding the investigation to determine what a reasonable man innocent of any crime would perceive. (People v. Romano (1985), 139 Ill. App. 3d 999, 1009, 487 N.E.2d 785; People v. Newsome (1983), 117 Ill. App. 3d 1005, 1007-08, ...


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