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08/03/88 the People of the State of v. Mark E. Gardner

August 3, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MARK E. GARDNER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

527 N.E.2d 155, 172 Ill. App. 3d 763, 122 Ill. Dec. 783 1988.IL.1210

Appeal from the Circuit Court of Peoria County; the Hon. James M. Bumgarner, Judge, presiding.

APPELLATE Judges:

JUSTICE SCOTT delivered the opinion of the court. STOUDER, P.J., and HEIPLE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

In the early morning hours of November 18, 1985, Paul and Rosetta Paetsch, husband and wife, had fallen asleep while watching television in their home near Chillicothe, Illinois. Paul was awakened at approximately 2:30 a.m. by an intruder, who, with a companion, had entered their home. The next three hours were to be a period of terror for Paul and Rosetta. The two intruders were wearing ski masks and referred to each other as "Shawn" and "Gary." Subsequent events were to disclose that the intruder Gary was in fact the defendant, Mark E. Gardner. With knives being held to the throats of Paul and Rosetta, the couple were bound. The defendant then asked the couple if they had any money in their home. Rosetta indicated that she had money in her purse. Rosetta would remember that the voice of the defendant was "raspy," while that of his companion was "softer and less frantic."

The defendant then informed Paul that he and his companion Shawn were going to take Rosetta on a tour of the house. Both intruders then took Rosetta upstairs. Rosetta was undressed, and with a knife being held to her throat, while she was lying on the floor, the defendant attempted to have intercourse with her. The defendant was unable to effect a penetration and then forced Rosetta to bend over a chair and while in this position penetration was effected and intercourse occurred during which the defendant ejaculated.

After Rosetta dressed herself she returned to the downstairs, where she and her husband were tied together. The defendant and his accomplice conducted a search of the house and during the course of the search Rosetta heard the accomplice refer to the defendant as "Mark" or "Mike."

The defendant then left the residence and ransacked two parked automobiles. Paul heard leaves rustling in the grass and determined that the intruders had departed. Approximately 10 minutes later Paul and Rosetta had freed themselves to an extent that they were able to hop to a neighbor's house, where the State Police were called.

It was later determined by Paul and Rosetta that in addition to the $800 taken from Rosetta's purse a number of other personal items were missing, to wit, jewelry, including a sapphire ring, a camera and a flashlight.

Less than a month later the defendant was arrested in the State of Arkansas for criminal offenses committed in that State. Some of the items taken from Paul and Rosetta Paetsch were found in the defendant's possession by the Arkansas law enforcement officers. On December 20, 1985, the defendant, while incarcerated in Arkansas, was questioned by Agent Frank Walter of the Illinois State Police. The defendant admitted and confessed to being one of the two men who perpetrated the crimes in the Chillicothe area of which Paul and Rosetta Paetsch were the victims.

After trial by jury the defendant was convicted of home invasion, armed robbery, and two counts of aggravated criminal sexual assault. The court imposed sentence on all charges and found that the defendant was eligible for both extended terms and consecutive sentences. The defendant was sentenced to an extended term of 60 years for home invasion and a consecutive term of 30 years for one count of aggravated criminal sexual assault, said terms to be served concurrently with an additional term of 90 years' imprisonment consisting of an extended term of 60 years for armed robbery and a consecutive term of 30 years for the other count of aggravated criminal sexual assault.

The defendant has raised five issues in this appeal. In considering and determining the issues, additional facts will be set forth as the same become pertinent and necessary.

Factual background as to the first issue is that the defendant was tried and convicted for a triple murder in Arkansas. Rosetta Paetsch was a witness for the State at the defendant's sentencing hearing. While waiting to testify, Rosetta overheard the defendant talking to his attorney. She then informed the authorities that she could ...


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