{ "id": 2627832, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOREN DEAN KERNER, Defendant-Appellant", "name_abbreviation": "People v. Kerner", "decision_date": "1989-05-03", "docket_number": "No. 5\u201487\u20140351", "first_page": "99", "last_page": "106", "citations": [ { "type": "official", "cite": "183 Ill. App. 3d 99" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "504 N.E.2d 163", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "165" }, { "page": "165" }, { "page": "165" } ], "opinion_index": 0 }, { "cite": "152 Ill. App. 3d 216", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3574686 ], "weight": 3, "pin_cites": [ { "page": "218" }, { "page": "218" }, { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/152/0216-01" ] }, { "cite": "490 N.E.2d 977", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "983" } ], "opinion_index": 0 }, { "cite": "141 Ill. App. 3d 737", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3496005 ], "pin_cites": [ { "page": "744" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/0737-01" ] }, { "cite": "101 S. Ct. 3010", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "69 L. Ed. 2d 392", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "451 U.S. 1019", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6369666, 6368547, 6368759, 6369830, 6369992, 6370352, 6368144, 6369010, 6370163, 6369238, 6368375, 6369468 ], "opinion_index": 0, "case_paths": [ "/us/451/1019-08", "/us/451/1019-03", "/us/451/1019-04", "/us/451/1019-09", "/us/451/1019-10", "/us/451/1019-12", "/us/451/1019-01", "/us/451/1019-05", "/us/451/1019-11", "/us/451/1019-06", "/us/451/1019-02", "/us/451/1019-07" ] }, { "cite": "410 N.E.2d 505", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "509" } ], "opinion_index": 0 }, { "cite": "88 Ill. App. 3d 514", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3525987 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/128/0372-01" ] }, { "cite": "513 N.E.2d 628", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "pin_cites": [ { "page": "631" } ], "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 370", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3650607 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0370-01" ] }, { "cite": "95 S. Ct. 1587", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "43 L. Ed. 2d 789", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "421 U.S. 920", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 541696, 541121, 541157, 541319, 541931, 541328, 541780, 541239, 541882, 541083, 541468 ], "opinion_index": 0, "case_paths": [ "/us/421/0920-02", "/us/421/0920-03", "/us/421/0920-11", "/us/421/0920-08", "/us/421/0920-06", "/us/421/0920-09", "/us/421/0920-10", "/us/421/0920-01", "/us/421/0920-05", "/us/421/0920-07", "/us/421/0920-04" ] }, { "cite": "311 N.E.2d 607", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1975, "pin_cites": [ { "page": "609" }, { "page": "609" } ], "opinion_index": 0 }, { "cite": "19 Ill. App. 3d 448", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2698839 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "451" }, { "page": "451" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/19/0448-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 12, "pin_cites": [ { "page": "444" }, { "page": "706" }, { "page": "1612" }, { "page": "479" }, { "page": "726" }, { "page": "1630" }, { "page": "478" }, { "page": "726" }, { "page": "1630" } ], "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] } ], "analysis": { "cardinality": 675, "char_count": 15409, "ocr_confidence": 0.778, "pagerank": { "raw": 1.0508856274004643e-07, "percentile": 0.5539726447372029 }, "sha256": "7b131a011baf5ed422ae8f58d1b1cbf2c964addf487ff778b392dc07897bff1b", "simhash": "1:a3dbb09f7f478474", "word_count": 2492 }, "last_updated": "2023-07-14T17:15:47.196010+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOREN DEAN KERNER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HARRISON\ndelivered the opinion of the court:\nAfter a jury trial, the circuit court of Jasper County sentenced the defendant on April 10, 1987, to a term of seven years\u2019 imprisonment for aggravated criminal sexual abuse in violation of section 12 \u2014 16(cXl) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 12\u2014 16(c)(1)). The defendant appeals. We reverse the judgment and remand the cause for further proceedings.\nThe prosecution arose from allegations of sexual abuse made by three young girls, aged 6, 7, and 10. The defendant was accused of having fondled the vaginas of two young girls at Sam Parr State Park in Newton, Illinois, on Sunday, August 3, 1986, and of having fondled breasts of another young girl at Boys Baseball Park in Newton on Thursday, August 14, 1986. At trial, Boyd Vieregge, a child-protective investigator with the Department of Children and Family Services (DCFS), testified that he had received a report from one of the children that the defendant had committed \u201cbad touches\u201d upon her on at least five occasions. Vieregge contacted Officer Lawrence Sroka of the Newton police department, who told Vieregge that the Newton police were also investigating the defendant. Vieregge requested the officer to assist in setting up a meeting with the defendant at the police station.\nOn August 20, 1986, Vieregge met the defendant, who had been escorted to the Newton police station by Officer Bryan Green, to discuss the allegations of child abuse. While the defendant spoke with Vieregge in the office of the Newton chief of police, Officers Green and Sroka and the State\u2019s Attorney waited outside of the office. Vieregge advised the defendant that he would have to notify the police and the State\u2019s Attorney if the defendant inculpated himself in the criminal activity, but did not advise the defendant that he had the right to remain silent and the right to an attorney. The defendant then spoke with Vieregge for approximately IV2 hours and made several incriminating remarks during the interview. Vieregge asked the defendant if he would execute a written statement, and the defendant subsequently executed a statement inculpating himself in the alleged offense. Officer Sroka then entered the chief-of-police\u2019s office and arrested the defendant.\nSubsequent to placing the defendant under arrest, Officer Sroka admonished the defendant pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, and interrogated him regarding the alleged abuse. The defendant then made some incriminating remarks to Sroka, which Sroka testified to during the trial.\nThe defendant argues on this appeal that: (1) the trial court erred by admitting in evidence the statement taken by Vieregge, an investigator for the DCFS, without Vieregge\u2019s having admonished the defendant pursuant to Miranda-, (2) the trial court erred by allowing Officer Sroka to testify to an oral statement taken from the defendant immediately after the statement given to Vieregge; (3) the trial court erred by refusing to give jury instructions defining the offense of battery; and (4) the trial court abused its discretion in sentencing the defendant to a term of seven years\u2019 imprisonment.\nThe defendant initially contends that the trial court erred by admitting in evidence a statement that he executed at the request of Vieregge of the DCFS in the office of the Newton chief of police on August 20, 1986. The defendant asserts that Vieregge acted as an investigative officer for purposes of Miranda without having admonished the defendant pursuant to Miranda. On February 24, 1987, the circuit court denied the defendant\u2019s pretrial motion to suppress the written statement, and the statement was admitted over objection as State\u2019s exhibit No. 4.\nIn Miranda v. Arizona (1966), 384 U.S. 436, 444, 16 L. Ed. 2d 694, 706, 86 S. Ct. 1602, 1612, the Supreme Court held that a prosecutor may not use an exculpatory or inculpatory statement arising from a custodial interrogation of a defendant unless the prosecutor can demonstrate the use of procedural safeguards effective to secure the defendant\u2019s privilege against incriminating himself. The Miranda decision requires the agent of the prosecution to warn the defendant prior to questioning that: (1) he has the right to remain silent; (2) anything he says can be used against him in a court of law; (3) he has the right to have an attorney present; and (4) if he cannot afford an attorney, one will be appointed for him prior to questioning if he so desires. Miranda, 384 U.S. at 479, 16 L. Ed. 2d at 726, 86 S. Ct. at 1630.\nPrevious case law indicates that the Miranda decision applies to any interrogating party who acts as an agent of the prosecution. In People v. Baugh (1974), 19 Ill. App. 3d 448, 451, 311 N.E.2d 607, 609, cert. denied (1975), 421 U.S. 920, 43 L. Ed. 2d 789, 95 S. Ct. 1587, the appellate court held that the trial court must exclude statements resulting from an interrogation of a defendant when the interrogating party failed to admonish the defendant pursuant to Miranda, and the interrogating party\u2019s \u201cinterests were so integrated and closely aligned with the authorities that his role in [the] case was adversary in nature and his conduct and questions directed at defendant were accusatory in character.\u201d\nIn People v. Hagar (1987), 160 Ill. App. 3d 370, 513 N.E.2d 628, a case with facts similar to those of the instant case, the appellate court affirmed the trial court\u2019s suppression of a statement given to two DCFS investigators by a defendant charged with aggravated criminal sexual assault. The Hagar court distinguished People v. Bradley (1984), 128 Ill. App. 3d 372, 470 N.E.2d 1121, a case where the appellate court determined that the trial court did not err by denying the defendant\u2019s motion to suppress a statement taken by a DCFS caseworker who received a defendant\u2019s incriminating statement without admonishing the defendant pursuant to Miranda. In Hagar, the defendant made the statement in a custodial environment, where in Bradley the defendant made the statement at his home. Additionally, in Hagar the DCFS employees were \u201cinvestigators\u201d whose role was to inquire into abuse and neglect charges, and to instigate charges where appropriate, where in Bradley the DCFS employee was a \u201ccaseworker\u201d whose role was to counsel the defendant, and not to solicit or encourage the incriminating remarks. Hagar, 160 Ill. App. 3d at 375, 513 N.E.2d at 631.\nIn the case sub judice, as in Hagar, the DCFS employee was an investigator and interviewed the defendant as part of his investigation for the DCFS. Vieregge admitted during the pretrial suppression hearing that he was \u201crequired by law to notify the [S]tate\u2019s [A]ttomey and the police department of the complaint.\u201d Vieregge told the defendant that he would have to notify the police and the State\u2019s Attorney if the defendant\u2019s statements indicated criminal activity. Vieregge was thus prepared, subsequent to taking the defendant\u2019s statement, to assist the police and the State\u2019s Attorney in their prosecution of the defendant. The defendant executed his written statement on a form Vieregge obtained from the Newton police. Officers Sroka and Green, and the State\u2019s Attorney, waited for Vieregge to finish interviewing the defendant before entering the room, where Officer Sroka immediately arrested the defendant. Furthermore, Vieregge exchanged information with Officer Sroka, who was handling the criminal investigation of the defendant, both before and after Vieregge\u2019s interview with the defendant. These factors indicate that Vieregge\u2019s role in the investigation was integrated with that of the Newton officers and the State\u2019s Attorney, and adverse to the interests of the defendant. Vieregge acted as a \u201cconduit for information elicited from defendant and used by the authorities in the prosecution of defendant.\u201d (People v. Baugh (1974), 19 Ill. App. 3d 448, 451, 311 N.E.2d 607, 609.) Thus, Vieregge was an agent of the prosecution for purposes of Miranda.\nWe also note that the setting of the investigation was custodial in nature. The Miranda decision applies only to \u201ccustodial\u201d interrogations, which the Court defined as \u201cwhen an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning.\u201d (Miranda, 384 U.S. at 478, 16 L. Ed. 2d at 726, 86 S. Ct. at 1630.) The determination of whether the defendant was in custody at the time of the interrogation depends on several relevant factors, including: (1) the place of the interrogation; (2) statements or nonverbal conduct indicating an accused is not free to leave; (3) the extent of the knowledge of the officers and the focus of their investigation; and (4) the intention of the officers. (People v. Newsome (1983), 117 Ill. App. 3d 1005, 1007-08, 454 N.E.2d 353, 355.) In the instant case, the circumstances of Vieregge\u2019s interrogation indicate that the defendant was in a custodial setting during the questioning. Vieregge interrogated the defendant in the office of the chief of police. The door of the office was kept closed and locked at all times. Officers Green and Sroka, and the State\u2019s Attorney, blocked the only exit from the office. Vieregge had information regarding the defendant\u2019s culpability of the offense prior to the questioning, and the focus of Vieregge\u2019s investigation was at all times upon the defendant. Officer Sroka intended to arrest the defendant, and did arrest the defendant, immediately after the interview. Thus we find, from the factors prescribed in Newsome, that the defendant was in custody for purposes of Miranda.\nThe standard of review for a motion to suppress is whether the finding of the trial court was manifestly erroneous. (People v. Brown (1980), 88 Ill. App. 3d 514, 519, 410 N.E.2d 505, 509, cert. denied (1981), 451 U.S. 1019, 69 L. Ed. 2d 392, 101 S. Ct. 3010.) Vieregge\u2019s role in the interrogation clearly indicates that he was an instrumentality of the prosecution, and the evidence indicates that the interrogation took place while the defendant was \u201cin custody\u201d for purposes of Miranda. Consequently, Vieregge was required to give Miranda warnings to the defendant prior to interrogating him. The trial court\u2019s failure to suppress Vieregge\u2019s statement was manifestly erroneous, and we must therefore reverse the court\u2019s judgment and remand the cause for a new trial.\nThe defendant\u2019s second contention is that the trial court erred by allowing Officer Sroka to testify to an oral statement of the defendant taken immediately after the statement to Vieregge. The trial court denied the defendant\u2019s pretrial motion to suppress the statement to Sroka and Sroka testified at trial as to the defendant\u2019s statement. The defendant objected to Officer Sroka\u2019s testifying because the defendant alleged that the statement made to Sroka was \u201cfruit of the poisonous tree\u201d obtained from Vieregge, and the statement was thus tainted by Vieregge\u2019s failure to give Miranda warnings.\n\u201cUnder Illinois law, the admissibility of defendant\u2019s subsequently warned confession after an initial Miranda violation depends upon the voluntariness of the second statement. [Citation.] Voluntariness is determined after a consideration of the totality of the circumstances and depends upon whether the accused\u2019s will was overborne at the time of the statement. [Citations.] The fact that the first statement is inadmissible does not automatically render a subsequent statement inadmissible.\u201d (People v. Fuller (1986), 141 Ill. App. 3d 737, 744, 490 N.E.2d 977, 983.) We are unable to determine from the record whether the defendant made his statement to Officer Sroka voluntarily. Upon remand, the court should conduct a rehearing to determine the voluntariness of the defendant\u2019s statement to Sroka.\nThe defendant next contends that the trial court erred by refusing to give jury instructions defining the offense of battery. The record indicates that the defendant tendered proposed jury instructions setting forth the elements of battery, accompanied by verdict forms for battery. The court sustained the State\u2019s objection to these instructions and the instructions were not given to the jury.\nSection 12 \u2014 3(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 12 \u2014 3(a)) defines battery as where an individual \u201cintentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.\u201d In People v. Reynolds (1987), 152 Ill. App. 3d 216, 218, 504 N.E.2d 163, 165, the appellate court acknowledged that a defendant may be entitled to instruct a jury on a lesser included offense. However, the court noted that the evidence must permit a jury rationally to find the defendant guilty of the lesser offense and not guilty of the greater offense. (Reynolds, 152 Ill. App. 3d at 218, 504 N.E.2d at 165.) The Reynolds court determined that the record failed to indicate any evidence under which the jury could find the defendant guilty of the lesser offense of attempted burglary because the evidence was clear that someone had burglarized the victim\u2019s house. The court concluded that, when the evidence indicates that a defendant is either guilty of the greater offense or not guilty of any offense, the court may properly refuse an instruction on the lesser offense. Reynolds, 152 Ill. App. 3d at 219, 504 N.E.2d at 165.\nIn the instant case, the court properly refused to give the instruction on the lesser offense of battery because the defendant is either guilty of the greater offense of aggravated criminal sexual abuse or not guilty of any offense. The defendant has consistently argued that he did not touch the victims\u2019 sex organs or breasts, or, if he had, that the touching was unintentional. If the jury believed the defendant\u2019s version of the facts, then it could only conclude that he had not committed any offense. The only other possibility is that the touching was intentional. If there were an intentional touching, under the evidence presented, the touching of the victims\u2019 sex organs or breasts could only have been for sexual gratification. Thus the defendant would have committed aggravated criminal sexual abuse, not merely battery. Accordingly, the jury could either find the defendant guilty of aggravated criminal sexual abuse or find him not guilty of any offense. The trial court therefore correctly refused to give the instruction for battery.\nThe defendant\u2019s final contention is that the trial court abused its discretion in sentencing him to an extended term of seven years\u2019 imprisonment. We need not rule on this point since we are reversing the lower court\u2019s judgment and remanding the cause for a new trial.\nFor the foregoing reasons, we reverse the judgment of the circuit court of Jasper County and remand the cause for further proceedings.\nReversed and remanded.\nWELCH, P.J., and HOWERTON, J., concur.", "type": "majority", "author": "JUSTICE HARRISON" } ], "attorneys": [ "Curtis G. Quindry, of Newton, for appellant.", "James Tomaw, State\u2019s Attorney, of Newton (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOREN DEAN KERNER, Defendant-Appellant.\nFifth District\nNo. 5\u201487\u20140351\nOpinion filed May 3, 1989.\nCurtis G. Quindry, of Newton, for appellant.\nJames Tomaw, State\u2019s Attorney, of Newton (Kenneth R. Boyle, Stephen E. Norris, and Gerry R. Arnold, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0099-01", "first_page_order": 121, "last_page_order": 128 }