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08/11/88 the People of the State of v. Larry Gerdes

August 11, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

LARRY GERDES, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

527 N.E.2d 1310, 173 Ill. App. 3d 1024, 123 Ill. Dec. 535 1988.IL.1249

Appeal from the Circuit Court of Saline County; the Hon. Michael J. Henshaw, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARRISON delivered the opinion of the court. LEWIS and CALVO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Defendant, Larry Gerdes, was charged by information with obstruction of Justice in violation of section 31-4(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 31-4(a)). Pursuant to section 114-1(a)(8) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 114-1(a)(8)), defendant moved to dismiss that information on the grounds that it failed to state an offense. Following a hearing, defendant's motion was granted. The State now appeals. (107 Ill. 2d R. 604(a)(1).) We affirm.

The record before us shows that on June 2, 1986, while confined in the Saline County jail, defendant was interviewed by Officer Lloyd Cullison of the Eldorado, Illinois, police department. During that interview, which was tape-recorded, defendant claimed, among other things, that James Butler had asked him "to burn [Butler's] house for him," in exchange for which Butler offered to pay defendant $50 and to forgive a debt which defendant owed. Defendant further claimed that he subsequently burned the house down, as requested, and that Butler paid him the money he had been promised.

Ten days later, on June 12, 1986, Gerdes was interviewed by other members of the Eldorado police department, this time at "Jim Hamblins Garage" in Norris City, Illinois. During this second interview, defendant repeated his claims that he had been paid by Butler to burn Butler's house down. He provided additional details as to how he started the fire and indicated that Butler wanted the house "torched" so that he (Butler) could collect insurance money.

Based upon these interviews, Butler was charged by information with the crime of arson in connection with the burning of his house. Butler subsequently moved to dismiss the information, and a hearing on his motion was held by the circuit court of Saline County on February 27, 1987. At that hearing, an affidavit executed by defendant was submitted to the court by Butler's attorney. The affidavit, notarized by Charlene Ferrell, secretary to Butler's attorney, and dated July 25, 1986, stated:

"1. I [Larry Gerdes,] falsely accused James Butler of Eldorado, Illinois of asking me to burn his house at 1110 Beulah Street in Eldorado, Illinois.

2. James L. Butler has never requested or asked me to burn his home.

3. I was scared by the charges the police were making against me and for that reason I told them that James L. Butler had asked for my help in burning his house.

4. James L. Butler never agreed with me to the commission of arson.

5. James L. Butler never provided or promised to me anything in exchange ...


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