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05/03/89 the People of the State of v. Loren Dean Kerner

May 3, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

LOREN DEAN KERNER, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

538 N.E.2d 1223, 183 Ill. App. 3d 99, 131 Ill. Dec. 667 1989.IL.652

Appeal from the Circuit Court of Jasper County, No. 86-Cf-28; the Hon. Richard H. Brummer, Judge, presiding.

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. WELCH, P.J., and HOWERTON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

After a jury trial, the circuit court of Jasper County sentenced the defendant on April 10, 1987, to a term of seven years' imprisonment for aggravated criminal sexual abuse in violation of section 12-16(c)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 12-16(c)(1)). The defendant appeals. We reverse the judgment and remand the cause for further proceedings.

The prosecution arose from allegations of sexual abuse made by three young girls, aged 6, 7, and 10. The defendant was accused of having fondled the vaginas of two young girls at Sam Parr State Park in Newton, Illinois, on Sunday, August 3, 1986, and of having fondled breasts of another young girl at Boys Baseball Park in Newton on Thursday, August 14, 1986. At trial, Boyd Vieregge, a child-protective investigator with the Department of Children and Family Services , testified that he had received a report from one of the children that the defendant had committed "bad touches" upon her on at least five occasions. Vieregge contacted Officer Lawrence Sroka of the Newton police department, who told Vieregge that the Newton police were also investigating the defendant. Vieregge requested the officer to assist in setting up a meeting with the defendant at the police station.

On August 20, 1986, Vieregge met the defendant, who had been escorted to the Newton police station by Officer Bryan Green, to discuss the allegations of child abuse. While the defendant spoke with Vieregge in the office of the Newton chief of police, Officers Green and Sroka and the State's Attorney waited outside of the office. Vieregge advised the defendant that he would have to notify the police and the State's Attorney if the defendant inculpated himself in the criminal activity, but did not advise the defendant that he had the right to remain silent and the right to an attorney. The defendant then spoke with Vieregge for approximately 1 1/2 hours and made several incriminating remarks during the interview. Vieregge asked the defendant if he would execute a written statement, and the defendant subsequently executed a statement inculpating himself in the alleged offense. Officer Sroka then entered the chief-of-police's office and arrested the defendant.

Subsequent to placing the defendant under arrest, Officer Sroka admonished the defendant pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, and interrogated him regarding the alleged abuse. The defendant then made some incriminating remarks to Sroka, which Sroka testified to during the trial.

The defendant argues on this appeal that: (1) the trial court erred by admitting in evidence the statement taken by Vieregge, an investigator for the DCFS, without Vieregge's having admonished the defendant pursuant to Miranda ; (2) the trial court erred by allowing Officer Sroka to testify to an oral statement taken from the defendant immediately after the statement given to Vieregge; (3) the trial court erred by refusing to give jury instructions defining the offense of battery; and (4) the trial court abused its discretion in sentencing the defendant to a term of seven years' imprisonment.

The defendant initially contends that the trial court erred by admitting in evidence a statement that he executed at the request of Vieregge of the DCFS in the office of the Newton chief of police on August 20, 1986. The defendant asserts that Vieregge acted as an investigative officer for purposes of Miranda without having admonished the defendant pursuant to Miranda. On February 24, 1987, the circuit court denied the defendant's pretrial motion to suppress the written statement, and the statement was admitted over objection as State's exhibit No. 4.

In Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612, the Supreme Court held that a prosecutor may not use an exculpatory or inculpatory statement arising from a custodial interrogation of a defendant unless the prosecutor can demonstrate the use of procedural safeguards effective to secure the defendant's privilege against incriminating himself. The Miranda decision requires the agent of the prosecution to warn the defendant prior to questioning that: (1) he has the right to remain silent; (2) anything he says can be used against him in a court of law; (3) he has the right to have an attorney present; and (4) if he cannot afford an attorney, one will be appointed for him prior to questioning if he so desires. Miranda, 384 U.S. at 479, 16 L. Ed. 2d at 726, 86 S. Ct. at 1630.

Previous case law indicates that the Miranda decision applies to any interrogating party who acts as an agent of the prosecution. In People v. Baugh (1974), 19 Ill. App. 3d 448, 451, 311 N.E.2d 607, 609, cert. denied (1975), 421 U.S. 920, 43 L. Ed. 2d 789, 95 S. Ct. 1587, the appellate court held that the trial court must exclude statements resulting from an interrogation of a defendant when the interrogating party failed to admonish the defendant pursuant to Miranda, and the interrogating party's "interests were so integrated and closely aligned with the authorities that his role in [the] case was adversary in nature and his conduct and questions directed at defendant were accusatory in character."

In People v. Hagar (1987), 160 Ill. App. 3d 370, 513 N.E.2d 628, a case with facts similar to those of the instant case, the appellate court affirmed the trial court's suppression of a statement given to two DCFS investigators by a defendant charged with aggravated criminal sexual assault. The Hagar court distinguished People v. Bradley (1984), 128 Ill. App. 3d 372, 470 N.E.2d 1121, a case where the appellate court determined that the trial court did not err by denying the defendant's motion to suppress a statement taken by a DCFS caseworker who received a defendant's incriminating statement without admonishing the defendant pursuant to Miranda. In Hagar, the defendant made the statement in a custodial environment, where in Bradley the defendant made the statement at his home. Additionally, in Hagar the DCFS employees were "investigators" whose role was to inquire into abuse and neglect charges, and to ...


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