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September 12, 1994



Released for Publication October 14, 1994.

Campbell, Buckley, Manning

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant Buddy Marts was found guilty of arson and four counts of involuntary manslaughter. The trial court entered a judgment notwithstanding the verdict on the charge of arson. However, defendant was sentenced to ten years in the Illinois Department of Corrections on the involuntary manslaughter convictions. Defendant now appeals those convictions.

The record on appeal indicates the following facts. Defendant was charged by indictment with first degree murder, aggravated arson and arson relating to a fire at an apartment building located at 4802 N. Bernard, Chicago, Illinois, on August 31, 1988. Before trial, defendant filed motions to quash his arrest and suppress evidence, suppress statements and join related prosecutions.

The primary witnesses at the hearing on defendant's motion to quash his arrest and suppress evidence were defendant and Detective Martin Gavin of the Chicago Police Department's bomb and arson section. Though the witnesses offered differing accounts of the circumstances leading to defendant's arrest in this matter, some of the facts are not disputed. On January 9, 1989, Detective Gavin and Detective Wayne Micek were admitted to defendant's home, which he shared with his sister and brother-in-law. Defendant had previously spoken to Detective Gavin regarding an arson defendant claimed to have witnessed. Detective Gavin had been investigating approximately 25 fires in the area surrounding the intersection of Grand and Austin; a victim of one such fire, Ms. Collazo, had called the police claiming that defendant may have been involved in setting the fire.

After speaking at defendant's home, defendant voluntarily accompanied the detectives to the police station to look at mug shots. Defendant was taken to a glass-partitioned room by one of the officers, who then left to make a phone call. This room had a ring to secure people with handcuffs, but defendant was not handcuffed at this time. Defendant could see two officers talking out of earshot.

Defendant testified that he was informed he was under arrest for four counts of murder and arson immediately after the officers returned to the glass-partitioned room. Defendant also testified that he was not told he was under arrest until after the officers escorted him to the scene of the fire at 4802 N. Bernard "to refresh his memory."

Detective Gavin testified that he spoke with defendant in the glass-partitioned room in the presence of Detective Micek and Detective Timothy O'Meara. Detective Gavin indicated that he tolddefendant of additional fires and Ms. Collazo's concern that defendant was responsible for them. According to Detective Gavin, defendant immediately broke down and said "I have a sickness, I am not well." Detective Gavin stated he believed this comment referred to defendant's mental health; at this point, Gavin did not believe defendant was free to leave. Detective Gavin then informed defendant of his constitutional rights, which defendant said he understood. According to Detective Gavin, defendant stated that he wanted to get something off his chest and then admitted setting numerous fires, including the fire relating to Ms. Collazo, giving specific incidents and addresses. Gavin testified that defendant was placed under arrest after he was informed of his constitutional rights, but later testified that he was placed under arrest after making the admissions.

The trial court denied the motion to quash, finding that probable cause existed for the police to detain and ultimately arrest defendant for the offenses charged.

Defendant also moved to suppress statements he gave to the police and the State's Attorney's office, alleging that they were coerced and that defendant's low intelligence left him unable to understand his constitutional rights or to knowingly waive them. Detective Gavin again testified, as did Detective Lawrence Poli, who participated in taking a written statement from defendant. Assistant State's Attorney Edward Schreiber testified regarding a statement he took from defendant in the presence of a court reporter and detectives. School psychologist Kevin Caines and forensic psychiatrist Gerson Kaplan gave expert testimony regarding defendant's ability to understand the meaning of the Miranda warnings. Defendant testified that he gave the statements because he had been struck and threatened by the police. After hearing the witnesses and argument, the trial court denied defendant's motion to suppress statements.

Defendant also moved to join this prosecution with related prosecutions of defendant based on defendant's statements. Defense counsel argued that he would seek to discredit the statements defendant made to the police by showing that when defendant was arrested, the police had already obtained a confession from Michael Gillon as to at least one of the fires to which defendant had made admissions, though Gillon apparently had not confessed to the fire at issue in this case. The trial court denied defendant's motion for joinder of the prosecutions.

During jury selection, a prospective juror told the court he had heard about "the Marts case" and had "rehashed" it with co-workers, but did not remember the names of the people who had been murdered. The venireman remembered the horror of the case becausea home that had been in his family for three generations had burned down at about the same time. The venireman also indicated that he thought he could Judge the case on the evidence presented at trial and that he did not have any preconceived notions about defendant. The trial court denied defendant's motion to excuse this venireman for cause; defendant then exercised a peremptory strike to remove this venireman from the jury.

At trial, Martin Haug, who lived two houses north of the building at 4802 N. Bernard, Chicago, Illinois, on August 31, 1988, testified that he saw flames on the stairs of that building at approximately 11:30 p.m. and called the fire department. George Soto, a resident of the building on the date in question, indicated that his smoke alarm sounded approximately 15 to 20 minutes after he arrived home between 11:30 p.m. and midnight on the date in question.

Namil Kim, the owner of the building at 4802 N. Bernard, testified that the first floor of the building was occupied by businesses, while the second and third floors contained apartments. All 32 apartments were occupied in August 1988. A wooden stairway led from the alley to the second and third floors. A steel gate on the side of the stairs separated a gangway leading to the businesses on the first floor from the alley. Kim testified that this gate was locked on the night of the fire.

Kim further testified that there were two dumpsters in the alley, from which garbage was collected twice weekly. Kim indicated that some of the store owners kept cardboard ...

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