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People v. Maron

Court of Appeals of Illinois, Second District

December 31, 2019

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
Robert Q. MARON, Defendant-Appellant.

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          Appeal from the Circuit Court of McHenry County, Nos. 13-CF-652, 13-CF-653, 16-CF-832; the Hon. Sharon L. Prather, Judge, presiding.

          James E. Chadd, Thomas A. Lilien, and Steven L. Walker, of State Appellate Defender's Office, of Elgin, for appellant.

          Patrick D. Kenneally, State's Attorney, of Woodstock ( Patrick Delfino, Edward R. Psenicka, and John G. Barrett, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.



         ¶ 1 Defendant, Robert Q. Maron, pleaded guilty to two counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1), (b) (West 1996)) and one count of aggravated criminal sexual abuse ( id. § 12-16(c)(1)(i)). There were three separate victims, each of whom was under age 13. The trial court sentenced defendant to two 14-year sentences and one 4-year sentence, to run consecutively, for a total of 32 years.

         ¶ 2 On appeal, defendant challenges the admission at the sentencing hearing of videotaped statements he made to police. At the sentencing hearing, the State admitted that the statements were taken in violation of defendant's sixth amendment right to counsel. The theory was that the statements were obtained during the course of a separate investigation of an uncharged offense, concerning a victim who is not part of this case. The interview occurred, however, while defendant was in custody for the charged offenses and represented by counsel for the charged offenses. Defendant received a basic Miranda warning for the investigation concerning the uncharged offense. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Despite the Miranda warning, per People v. Kidd, 129 Ill.2d 432, 453-54, 136 Ill.Dec. 18, 544 N.E.2d 704 (1989), the State violated defendant's right to counsel in this case. Once the State charged defendant with the offenses in this case, the right to counsel

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attached to those charged offenses. Also, once defendant had retained counsel for the charged offenses, the State had an affirmative duty to honor that relationship, which it breached when it failed to notify counsel of the interview on the uncharged offense and instead elicited statements that would be used against him at sentencing here. (The State changes its position on appeal to argue that no sixth amendment violation occurred, but the record does not support affirming on that new ground.)

         ¶ 3 Defendant contends that, because the statements were obtained in violation of his sixth amendment right to counsel, they should not have been admitted at sentencing under any circumstances. He acknowledges that evidence obtained in violation of the fourth amendment may be allowed at trial for nonsubstantive purposes, such as impeachment, or at sentencing for substantive purposes, pursuant to the exclusionary-rule balancing test. See People v. Rose, 384 Ill.App.3d 937, 942, 323 Ill.Dec. 597, 894 N.E.2d 156 (2008). However, citing Bishop v. Rose, 701 F.2d 1150, 1156-57 (6th Cir. 1983),[1] defendant asserts that the sixth amendment affords stronger protections than the fourth amendment as it pertains to the admission of unlawfully obtained evidence.

         ¶ 4 We disagree with defendant's reading of Bishop. Instead, we determine that Bishop, together with Kansas v. Ventris, 556 U.S. 586, 590-91, 129 S.Ct. 1841, 173 L.Ed.2d 801 (2009), supports the conclusion that what matters is not which constitutional guarantee was violated, the fourth or the sixth, but when and how the constitutional guarantee was, or could be, violated. If the introduction of the evidence could itself constitute or exacerbate the violation, then the evidence is inadmissible. If, on the other hand, the violation has already occurred and the purpose of the exclusion would be to deter unlawful police conduct in the future, then the exclusionary-rule balancing test applies. Here, the violation occurred when the police obtained the statements, and the purpose of the exclusion would be to deter unlawful police conduct in the future. Therefore, the trial court properly applied the exclusionary-rule balancing test, and it did not abuse its discretion in deciding to admit the statements at the sentencing hearing.

         ¶ 5 Finally, defendant argues that the trial court relied on an improper sentencing factor. We disagree. Accordingly, we affirm.

         ¶ 6 I. BACKGROUND

         ¶ 7 This case involves three charged offenses: (1) the predatory criminal sexual assault of C.D. in that defendant placed his finger in C.D.'s vagina (No. 13-CF-652); (2) the predatory criminal sexual assault of J.S. in that defendant placed his finger in J.S.'s vagina (No. 16-CF-832); and (3) the aggravated criminal sexual assault of A.A. in that defendant touched A.A.'s vagina (No. 13-CF-653). Each of the crimes occurred between 1996 and 1998, and each of the victims was under age 13. Defendant, who was born in 1968, was over age 17.

         ¶ 8 In 2013, while defendant was in custody in McHenry County for the charged offenses, the Schaumburg Police Department sought to investigate defendant for the uncharged offense. The victim was defendant's stepdaughter, who alleged that defendant placed his finger in her vagina when she was 16 years old in the mid-2000s. She reported that defendant assaulted her when her mother was in the

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hospital, having just given birth to twins (who were fathered by defendant).

         ¶ 9 The McHenry County Sheriff allowed a Schaumburg detective to interview defendant concerning his stepdaughter's allegations. The officers did not notify defendant's retained counsel. The interview was videotaped. Defendant received a basic Miranda warning, and he signed a waiver. Defendant confessed to assaulting his stepdaughter. He claimed that he began giving his stepdaughter an ordinary muscle massage, "like he would give his wife," when he entered a dreamlike state. When he realized that his finger was in his stepdaughter's vagina, he awoke from his dreamlike state. He knew that he had gone too far, and he felt remorse. This portion of the interview lasted approximately three to four minutes.

         ¶ 10 After defendant confessed to assaulting his stepdaughter, the Schaumburg detective asked defendant if there was anything else that defendant "wanted to get off his chest." Defendant asked the detective if he meant A.A. and C.D., two of the victims of the charged offenses. The detective appeared to assent, asking "what happened?" Defendant proceeded to describe his actions against A.A. The detective then reminded defendant of C.D. Defendant responded by describing his actions against C.D. Defendant again claimed that he had been in a dreamlike state when he assaulted A.A. and C.D. He did not awake from the dreamlike state until he realized that he had violated the girls. He said that he felt remorse. This portion of the interview lasted approximately two to three minutes.

         ¶ 11 During the portion of the interview concerning the charged offenses, the detective asked defendant approximately 20 questions. These ranged from general prompts, such as providing defendant with a summary and then asking, "Is that correct?," to specific questions, such as "And you put your hand where?" Other questions included: "What was the name?"; "What happened with that?"; "You want to stress again [that you were] tired?"; "Tell me if this is correct"; "Did you ever [take out] your penis?"; "Did you ever anally penetrate?"; "What was that— same thing? [ i.e., Did you do the same thing to C.D.?]"; "[Did that occur] in a tent or somewhere else?"; "Was it planned?"; and "Once you touched the vagina, did you pull out because you realized it was wrong?"

         ¶ 12 The stepdaughter's allegations ultimately resulted in separate charges, pending in another county. In the meantime, in February 2017, defendant accepted a partially negotiated plea arrangement and pleaded guilty to the three charged offenses at issue here. (The terms of the partially negotiated guilty plea are not in the record.)

         ¶ 13 In April 2017, the trial court conducted a sentencing hearing. The State moved to admit the video of the interview by the Schaumburg detective. Defense counsel stated that in preparation for trial he had drafted a motion to suppress the interview on sixth amendment grounds. However, after counsel spoke with the State, defendant chose not to go to trial and instead entered the partially negotiated guilty plea.

         ¶ 14 The State admitted that defendant's sixth amendment right to counsel had been violated, stating, "If this matter had proceeded to trial, it [is] the State's position that most likely under almost no circumstances could I think of how that would not have been suppressed." (Emphasis added.) Despite the violation, the State maintained that the video was admissible. It cited Rose, 384 Ill.App.3d 937, 323 Ill.Dec. 597, 894 N.E.2d 156, noting that, there, the sentencing court had allowed evidence that was obtained in violation of the fourth

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amendment, even though that evidence would have been suppressed at trial. Defendant responded that Rose was inapposite, because it concerned a fourth amendment, as opposed to a sixth amendment, violation.

         ¶ 15 The trial court agreed with the State and admitted the video:

"I would grant that [ Rose ] is factually distinguishable from this case in that the Rose case dealt with [a] fourth amendment violation and in this case we have a sixth amendment violation regarding statements.
However, the reasoning in Rose is well applicable to this case. The case indicates that the exclusionary rule does not generally apply to sentencing hearings. Defendant's objection to the admission of the tape will be overruled."

         ¶ 16 Next, the State submitted victim-impact statements from all three victims in this case. Two of the victims were present and read their statements aloud. One of the victims explained that she had been so innocent at the time of the offense that it took her years to understand what had happened to her. All of the victims reported that defendant's actions had damaged their lives and their psychological well-being.

         ¶ 17 Cary police detective Susan Ellis testified to her investigation of the charged offenses. While investigating the charges, she contacted the police departments in municipalities where defendant had lived previously. This led to the discovery of other offenses. Also, defendant himself told Ellis of an offense he committed against his sister. Thus, in addition to the three victims at issue in this case, Ellis learned of four other victims. These victims included his stepdaughter, two young girls in Rock Falls, and his 12-year-old sister (when he was 16). Additionally, defendant had child pornography on his computer, and he once physically harmed his pregnant wife.

         ¶ 18 Regarding his stepdaughter, and as set forth in the video, defendant gave her a massage and then inserted his finger into her vagina. He also hid in her closet, wearing only his underwear, and he watched through the door's wood slats as she showered. When she caught him, he told her that he had only been trying to scare her.

         ¶ 19 Regarding the young girls in Rock Falls, he engaged in a game of truth or dare with them. They were 12 or 13 years old. He dared them to pull down their pants. When they refused, he spanked them. The incident was reported to the police but did not result in charges. Defendant explained that he had only been trying to teach them a lesson, because they had asked him to disrobe first.

         ¶ 20 Regarding his sister, defendant had sexual relations with her. His sister came forward soon after, and defendant was "shipped off" to a sexual-predator rehabilitation program in Minnesota. Ellis could not locate the program.

         ¶ 21 After Ellis interviewed defendant, defendant immediately called his wife and told her to destroy information on his computer. The police heard the phone call, because defendant made the call from the interview room. Officers were able to obtain a warrant in time to search the home. They obtained evidence from the computer, including a pornographic image of an eight-year-old girl in an explicitly sexual position. There was also a record of an online communication between defendant and an unknown girl. The girl stated that she was having sexual intercourse with her father. Defendant replied that "there should be more girls out there like [her]."

         ¶ 22 Finally, Ellis spoke with defendant's ex-wife, who told her that defendant once physically hurt her. When she was

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pregnant and asleep, defendant fired a taser weapon at her. She awoke, and defendant laughed and told her that he just wanted to see what would happen.

         ¶ 23 The State also submitted presentencing reports, sex-offender risk-assessment reports, and a psychological evaluation. The reports showed that defendant had no major psychiatric illness, though he did have clinically significant levels of anxiety. Defendant had been sexually abused as a child. The reports ultimately concluded that defendant was at moderate-high risk for recidivism, based on "his lack of empathy for the victims, his lack of responsibility for his actions, his history of sexual trauma, and instability in his life."

         ¶ 24 Defendant did not call any witnesses. The parties presented their arguments. Part of the State's argument was as follows:

"THE STATE: Your Honor, when sentencing the defendant today, I think it's very important to keep in mind that if defendant had committed these offenses a mere three or four years later, Your Honor really wouldn't have as much a decision to make today. ...

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