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July 26, 1994


Appeal from Circuit Court of Champaign County. No. 92CF1309. Honorable Harold L. Jensen, Judge Presiding. This Opinion Refiled by the Court for Withdrawn Opinion of July 15, 1994, Previously

Honorable Robert J. Steigmann, J., Honorable John T. McCULLOUGH, P.j., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In June 1992, the State charged defendant, Paul A. Goyer, with aggravated arson (Ill. Rev. Stat. 1991, ch. 38, par. 20-1.1). After a February 1993 bench trial, the trial court convicted defendant of that offense and later sentenced him to eight years in prison. Defendant appeals, arguing that the trial court erred by (1) refusing to suppress his statements, and (2) improperly considering conduct implicit in the offense of which he was convicted when imposing his sentence.

We affirm.


During the early hours of May 28, 1992, defendant started a fire in the basement of Carle Hospital in Urbana, Illinois, that primarily damaged part of the hospital's electrical system. Around 5:30 a.m., officer Raymond Hutcherson of the Urbana police department was dispatched to Crystal Lake Park in Urbana with a description of defendant. Hutcherson found defendant wandering around the park near Carle hospital and stopped defendant and asked him for identification. While checking his identification, Hutcherson explained to defendant that he was not under arrest, but that Hutcherson wanted to ask him a few questions. Soon thereafter, two other officers arrived.

Hutcherson and one of the other officers, Jeffrey Welborn, asked defendant several questions about the fire at the hospital. Defendant said that he was an employee of the hospital, but he had just quit because he was not allowed to take a cigarette break. During the conversation, Welborn indicated to defendant that they would like to talk to him further at the hospital. Welborn told defendant that he was not under arrest and that he could leave if he wanted to. Defendant agreed to accompany the officers back to the hospital. Before getting into a squad car, Welborn frisked defendant and found a disposable lighter and some matches in his pockets.

Welborn drove defendant to the hospital, arriving around 6:00 a.m. He left defendant in an interview room unattended while he spoke in the hallway with assistant chief Robert Pettyjohn of the Urbana fire department. Defendant was not handcuffed or restrained in any way, the door to the room was not locked, and no guard was posted. When Welborn and Pettyjohn came into the room, Welborn told defendant that he wanted to ask him some questions but that he was not under arrest and was free to leave at any time. Defendant made no response.

Welborn and Pettyjohn conducted the interview while Hutcherson silently observed from the back of the room. Welborn started by telling defendant that they were investigating a fire at the hospital. He again told defendant that he was not under arrest, was free to leave at any time, and that he would not be placed under arrest that morning regardless of any statement he might make. As the interview progressed, defendant admitted that he was not an employee at the hospital; instead, he was a patient there. Earlier that morning, he was in a basement area of the hospital and smelled smoke.

At this point in his statement, defendant said that he might wish to talk to an attorney. Pettyjohn responded that he simply wanted to learn more about the fire and was hoping defendant could help them do that. Thereafter, defendant essentially confessed to setting the fire.

At the Conclusion of the interview, defendant was told that he was free to go, and he left. At no time was he given the Miranda warnings.

The trial court denied defendant's motion to suppress his statements, finding as follows:

"Well, it's uncontroverted that the defendant was advised any number of times during the course of this whole episode that he was not under arrest and that he was free to leave. I think a couple of the points that [the prosecutor] makes about returning the lighter to him, [and] about the fact that * * * [defendant was], for all practical purposes, abandoned in this conference room at the emergency room with no one standing guard over him [are significant]. It's uncontroverted that he willingly consented to go from Crystal Lake Park to [the hospital] to discuss the matter.

I think the indicia are that this is a non-custodial interview, and there's nothing to contradict that. Because of that, I think it's not necessary to touch the question of the attorney * * *. I think all the characteristics of what happened, the way it's all been described here and that's not controverted, show this was clearly non-custodial and the motion to suppress [defendant's] confession is denied."

As stated earlier, the trial court later found defendant guilty in a bench trial of aggravated arson.


A. Was the Interview Custodial for Miranda Purposes?

Defendant first argues that he was in custody when he made his statements to the police. Therefore, because the officers did not give him the Miranda warnings, the trial court erred ...

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