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November 6, 1997


Appeal from the Circuit Court of Lake County. No. 95--CF--1597. Honorable Charles F. Scott, Judge, Presiding.

Released for Publication December 4, 1997.

The Honorable Justice Inglis delivered the opinion of the court. McLAREN and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Inglis

The Honorable Justice INGLIS delivered the opinion of the court:

Following a jury trial, defendant, Gary D. Matney, appeals his conviction of first-degree murder (720 ILCS 5/9--1(a)(1), (a)(2) (West 1994)). On appeal, defendant contends that (1) the trial court erred in denying his motion to suppress statements; (2) the trial court erred in giving the jury instructions over defendant's objections regarding defendant's failure to testify; and (3) he received ineffective assistance of trial counsel. We affirm.

This case arose from the death of Ronald Pecore, who was killed by a train on July 7, 1995. During police questioning, defendant confessed to knocking the victim unconscious and placing him on the railroad tracks. Prior to trial, he brought a motion to suppress those statements.

At the motion to suppress, Detective Theodore Meeker of the Hainesville police department testified that he initially investigated the victim's death as a suicide. He learned that the victim had been living at a campsite about 480 feet from the railroad tracks and that Officer Michael Wisniewski recovered a citation with defendant's name on it from a cigarette package on the path leading from the railroad tracks to the campsite.

To help in his investigation surrounding the victim's death, Meeker sought defendant for questioning. Accompanied by Wisniewski and Officer John Sapyta, Meeker found defendant at a bar around 1 a.m. on July 8, 1995. Defendant voluntarily complied with Meeker's request to question him. Defendant was not placed under arrest, and none of the officers drew weapons or handcuffed him.

At the Hainesville police station, the officers gave defendant coffee and cigarettes, allowed him to use the bathroom, and never prohibited him from leaving. Defendant informed Meeker that he had consumed in excess of a case of beer during the day. Meeker testified that defendant appeared normal, rational, and coherent. Defendant's breath moderately smelled of alcohol and his eyes were red. Meeker testified that defendant "seemed like he had had a little bit to drink, but other than that, he walked fine; he didn't stumble or stagger or anything like that." In his opinion, defendant did not appear to be under the influence of alcohol. Meeker further testified that defendant was experienced with the criminal justice system, having been arrested approximately 20 times before.

Defendant told Meeker that he and the victim had been good friends. When Meeker asked defendant when he last saw the victim, defendant first responded that it had been several days and then he replied that it had been two days. Finally, defendant said that he was drinking with the victim the day before and that he and the victim were arguing because the victim stole money from defendant and food stamps from defendant's girlfriend. In response to how he felt about this, defendant replied that he was "mad enough to kill" the victim.

At that point, Meeker stopped the interview and read defendant his Miranda rights. Defendant stated that he understood those rights and agreed to continue talking. Defendant never signed a written waiver of his rights.

Detectives Daniel Colin and John Crilly of the Lake County sheriff's department were called to interview defendant. Meeker informed Crilly that he gave defendant Miranda warnings. Defendant told the detectives that he drank a case of beer throughout the day, which was normal for him. Both detectives testified that it was apparent that defendant had some drinks but that he did not appear to have been intoxicated. Defendant did not slur his speech, stumble, or lose his balance. They stopped the interview several times to let defendant have coffee, cigarettes, and use the washroom. Crilly testified that defendant understood what they were asking, and defendant spoke clearly to them. Defendant did not request an attorney or seek to stop the interview.

After the detectives questioned defendant at the Hainesville police station, they transported defendant to the Lake County sheriff's department to audiotape the interview. Before Colin began taping, he asked defendant if he recalled receiving Miranda rights. Defendant hesitated, and, after Meeker reminded him of the event, he stated that he remembered. After Colin turned on the tape, he again asked defendant if he previously was advised of his Miranda rights and defendant stated, "I can't remember; I am pretty sure they did; pretty sure they did."

During the taping, defendant related different stories including that he and the victim had argued over money that the victim had stolen but quickly reconciled. Afterwards, they went to the campsite near the railroad tracks and began to fight again. Following a second reconciliation, defendant and the victim walked along the railroad tracks where once again they fought. Defendant admitted that he knocked the victim unconscious and dragged him to the railroad tracks and laid him on the tracks in front of an oncoming train.

Several witnesses testified for defendant at the suppression hearing. Defendant's mother, Genevieve Webb, stated that on July 8, 1995, she and defendant, who lived with her, drank an excessive amount of beer and wine coolers throughout the day from 12:30 to 9 p.m. She believed that defendant was very drunk that night. Defendant's brother, Thomas Matney, testified that, when he saw defendant that day, he was extremely intoxicated. Matney stated that defendant was an alcoholic and was frequently intoxicated. He also stated that his mother appeared extremely intoxicated. Defendant's friend, Cody Broten, visited defendant around 8 p.m. that evening. He had several beers before he arrived. He stated that he drank 8 to 10 beers and defendant drank at ...

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