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11/27/96 PEOPLE STATE ILLINOIS v. MARK MAXSON

November 27, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MARK MAXSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Daniel M. Locallo, Judge Presiding.

Rehearing Denied December 30, 1996. Released for Publication January 15, 1997.

Presiding Justice McNULTY delivered the opinion of the court: Gordon and Hourihane, JJ., concur.

The opinion of the court was delivered by: Mcnulty

PRESIDING JUSTICE McNULTY delivered the opinion of the court:

After a jury trial, defendant Mark Maxson was found guilty of first degree murder and aggravated criminal sexual assault. Defendant was sentenced to natural life for the first degree murder and an extended term of 50 years for the aggravated criminal sexual assault, the sentences to run concurrently. Defendant claims on appeal that: (1) the trial court erred in denying defendant's motion to quash arrest and suppress statements; (2) defendant was denied effective assistance of counsel where his attorney failed to file a motion in limine to bar impeachment use of defendant's prior conviction for rape; (3) the trial court improperly conducted its own investigation into the destruction of the crime scene; (4) the prosecutor improperly commented in closing argument that defendant's conduct fit the pattern of a child molester; and (5) the trial court erred in sentencing defendant to an extended term for aggravated criminal sexual assault where that offense was not the most serious offense with which defendant had been charged. We affirm in part, vacate in part and remand in part.

Prior to trial, a hearing was held on defendant's motion to quash arrest and suppress statements. Detective Pesavento testified at the hearing that on August 30, 1992, at about 5 p.m., he and his partner were called to an abandoned garage at 10730 South State Street and observed the body of six-year-old Lindsey Murdock. Lindsey's body was naked and bloody and had obvious injury to the back of the head. At about 9 p.m. that evening, Detective Pesavento learned that a man being interviewed on the television news was giving information on Lindsey's whereabouts the night of his death. Detective Pesavento located this man, whom the detective identified as defendant, in a lot near the garage where the body was found. The detective asked defendant if he had information that could help them in their investigation. Defendant was very cooperative. He told the detectives that he had met Lindsey the previous night near 111th and Michigan, had a conversation with him, bought him some potato chips, and then walked him part of the way home. He did not see Lindsey after that.

Detective Pesavento asked defendant if he would come to the station to give a statement. Defendant was willing and cooperative. The detective then drove defendant to Area Two headquarters.

Detective Pesavento placed defendant in a small office and, at about 10 p.m., had a conversation with him in which defendant gave a more detailed account of what happened, including names of people he saw after leaving Lindsey. This interview lasted about an hour or an hour and a half. Detective Pesavento did not inform defendant that he was free to leave. The detective asked defendant whether he would be willing to stay at the station while he attempted to confirm his story. Detective Pesavento also asked defendant whether he would take a lie detector test, and defendant agreed. Defendant said that he was willing to help out in any way he could. Detective Pesavento was unable to schedule a lie detector test for that evening. The detective was also unable to contact any of the people defendant claimed to have seen after leaving Lindsey. Defendant spent the night in the interview room, which did not have either a bed or a cot.

Detective Duffy next testified that on August 31, 1992, at 9:30 a.m., he and his partner, Detective Dwyer, interviewed defendant. They found him in an interview room, with the door closed, but not locked. The room was located on the second floor in a completely secured area.

Detective Duffy advised defendant of his Miranda warnings. During the half-hour interview, defendant told the detectives that he saw Lindsey, they walked a short distance, they went to a liquor store and then parted. Defendant did not know what happened to Lindsey after that. At the conclusion of this conversation, Detective Duffy did not tell defendant that he could go home, but instead obtained defendant's consent to take a lie detector test. Defendant was then allowed to make three phone calls to family members. Detectives Duffy and Dwyer then took defendant to 1121 South State Street. They arrived there at 11:30 a.m. Defendant was not handcuffed during the ride. When the lie detector test was completed, Robert Tovar, the technician who administered the test, informed defendant and the detectives that, in his opinion, defendant had not answered the questions truthfully. Detective Duffy did not offer to take defendant home but, instead, drove him back to Area Two. Defendant was not handcuffed during the drive.

At about 3:45 p.m., Detective Duffy asked defendant if he would agree to have blood drawn for a test, as well as give samples of head and pubic hair and saliva. Defendant agreed. Detective Duffy explained to defendant that blood and hair samples had been found at the scene. According to Detective Duffy, defendant never asked to leave to the station and agreed to stay until the next day to give the samples. While the detectives were telephoning hospitals to arrange for the blood test, they gave defendant something to eat and drink.

Defendant was taken to Roseland Hospital, where his blood was drawn at 6:40 p.m. Detective Duffy testified that he did not offer to take defendant home and defendant did not ask to go home. Defendant was instead taken back to Area Two and placed in the same interview room. The door to the room was closed but unlocked. Detective Duffy claimed that defendant agreed to spend a second night at the station.

The next morning, September 1, 1992, an evidence technician took head hair, pubic hair and saliva samples from defendant. Detective Duffy and his partner interviewed defendant at 1:45 p.m., for a half an hour. After that conversation, defendant was not told he was free to leave.

The detectives interviewed defendant again at about 6 p.m. During this 30- to 45-minute conversation, defendant said that he was present in the garage and that he saw Lindsey's body, covered up with a window frame. Defendant told the detectives that he needed time to think. The detectives did not tell defendant that he was free to leave and defendant did not ask to go home. Defendant told the detectives that he would stay as long as needed to help solve the crime. Detective Duffy stated that defendant was not abused or threatened in any way.

At about 10 p.m., defendant requested to speak with Detective Pesavento and his partner. Detective Pesavento testified that when he went to the interview room, the door was probably locked. The detectives gave defendant his Miranda warnings. During this two-hour interview, defendant implicated himself in the crime. Defendant was formally arrested at 10 p.m. Assistant State's Attorney Carlos Weeden arrived at Area Two at 2:10 a.m., and at about 8:30 a.m., a court-reported statement was taken.

Defendant testified at the suppression hearing that he went to the police station voluntarily and was assured by Detective Pesavento that he would not be there long. He was taken to the second floor of the station and placed in a small windowless room, which had in it two chairs and a long metal bench. After being questioned by Detective Pesavento for a half an hour, the detective did not tell him he was free to leave. Rather, the detective left the room and locked the door, leaving defendant alone in the room. Defendant testified that when he needed to use the washroom, he had to bang on the door and someone came, took him to the washroom, and then returned him to the interview room.

Defendant testified that when Detective Pesavento returned, they had another conversation, during which defendant asked if he could leave and why he was being questioned this way. Detective Pesavento told him that he appeared to be a suspect. The detective then left the room, again ...


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