People v. Gard

602 N.E.2d 920, 236 Ill. App. 3d 1001, 177 Ill. Dec. 25, 1992 Ill. App. LEXIS 1747
CourtAppellate Court of Illinois
DecidedOctober 29, 1992
Docket5-91-0541
StatusPublished
Cited by12 cases

This text of 602 N.E.2d 920 (People v. Gard) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Gard, 602 N.E.2d 920, 236 Ill. App. 3d 1001, 177 Ill. Dec. 25, 1992 Ill. App. LEXIS 1747 (Ill. Ct. App. 1992).

Opinions

JUSTICE WELCH

delivered the opinion of the court:

Defendant, Chuck Gard, appeals from his convictions on two counts of arson. He was tried before a jury in the circuit court of Shelby County on May 6-8, 1991. On June 26, 1991, defendant was sentenced to serve two concurrent terms of four years’ imprisonment, and judgment was entered on the convictions. Defendant raises three issues on appeal: (1) whether it was reversible error for both the prosecutor and defense counsel to repeatedly refer to the fact that polygraph examinations had been given to two witnesses, Diana King and John Clutter; (2) whether one of defendant’s convictions must be vacated because both convictions are based on a single act; and (3) whether the defendant’s sentence of fours years’ imprisonment is excessive and must be reduced in light of his potential for rehabilitation and in light of his codefendant’s lesser sentence. For the reasons which follow, we affirm defendant’s convictions and sentences.

Defendant, along with his codefendant, Diana King, was charged, by information filed in the circuit court of Shelby County on September 7, 1991, with two counts of arson in that, on or about July 31, 1990, he did, (1) by means of fire, knowingly damage a building without the owners’ consent, and (2) by means of fire, and with the intent to defraud an insurer, knowingly damage a building. We will summarize the evidence presented at defendant’s jury trial to the extent it is necessary to resolve the issues before us on appeal.

The owner of the damaged building, David Eberspacher, testified that he did not give anyone permission to damage the building by fire. The building was insured by Cincinnati Insurance Company. The building contained several offices on lease, including a portion of the building leased by Diana King and used by her as a music store known as Music Mountain. The building owners did not provide for insurance on the contents of the building. Access to the basement of the building could be gained from a manhole and a grate both located in the sidewalk in front of the building. The defendant was not a party to any lease of the building.

Insurance agent Richard Firnhaber represents Cincinnati Insurance Company, which had a fire and liability insurance policy on the business of Diana King known as Music Mountain. The policy insured only the contents of the business against fire. Diana King provided Firnhaber with a list of contents that had been destroyed in the fire. The amount of the insurance on the contents of the building was $20,000. The amount of the claim submitted was $17,438. Defendant is not a beneficiary of any insurance policy covering Music Mountain.

Michael Macklin can see the Music Mountain store from the window of his residence. At approximately midnight on July 28, 1990, he was up late watching television. He heard a noise outside, and when he looked out his window, he observed Diana King and her boy friend moving furniture into the back of a truck. He identified defendant as the boy friend. At approximately 3:30 on the morning of July 31, 1990, Macklin was awakened and told to evacuate his residence as the building across the street was on fire.

Diana King testified that she was 30 years of age and had been romantically involved with the defendant. They met in June 1990, and she began living with him in July 1990. King was the owner of Music Mountain, a music store that sold cassettes and related items. She had started the business in December 1989. In June and July 1990, business was very bad, and King thought about burning the business and collecting the insurance money in order to get out of it.

Approximately one week before the fire, King discussed with defendant her idea of burning the building. They discussed collecting the insurance money, paying off their debts and purchasing a Harley Davidson motorcycle. They went so far as to pick out the motorcycle they wanted. They later discussed it again and decided to do it. On the Saturday before the fire, King and defendant placed a faulty extension cord on some flammable materials in hopes it would start a fire. Also present was John Clutter, an employee of the store who also resided with King and defendant. They left the store. No fire occurred. They returned to the store on Monday, and after they left, defendant told King that he had placed a cigarette in a chair. On Monday night, when they realized again that no fire had started, defendant suggested that they go back that night and start one. King and defendant returned to the store at approximately 1:30 a.m. They planned to make it look as if a burglary had occurred. King took tapes and other items from the store, including the money from the cash register. Defendant kicked the basement door in to make it appear that someone had entered the store from the basement. However, he kicked it from the wrong side. Defendant then set a chair on fire with his cigarette lighter. They returned home.

The police informed them of the fire at approximately 9 a.m. King later told John Clutter that she and defendant had started the fire. King submitted a claim in the approximate amount of $17,000 to her insurance company. Defendant knew that she was planning to do this.

King was interviewed by the police three different times. When asked in direct examination who was present for the second interview, King responded, “Mr. Marlow and the man that gave the lie detector test.” She denied any involvement in the fire. On September 7, 1990, King confessed to the police, and she was placed under arrest. King had pleaded guilty to two counts of arson but had not yet been sentenced at the time of defendant’s trial. The State had agreed to recommend a three-year prison term in return for King’s guilty plea.

In cross-examination, in establishing the chronology of the various interviews King had with the police, she mentioned a lie detector test. Nothing King said during the lie detector test was revealed in testimony, nor was the result of that test revealed in testimony. King also testified that John Clutter had taken a lie detector test, but she did not describe the results of that test or any statements made by Clutter during the test.

John Clutter was called to testify. He was 20 years of age at the time of trial. He worked at Music Mountain. In July 1990, King began joking about burning the business. On July 28, 1990, Clutter observed defendant place a faulty extension cord on top of some flammable materials. Clutter was residing with King and defendant. Clutter learned of the fire at noon on July 31, 1990. That day, defendant told Clutter that the extension cord had not worked and that he had started the fire with a cigarette lighter. The prosecutor asked Clutter whether he had been asked to take a lie detector test, and Clutter responded affirmatively. Defendant told Clutter that the tests were easy to beat and told him how to do it. Clutter was promised a leather jacket by King if he passed the test. Clutter was also given a guitar by King and defendant because they did not want it to burn in the fire. King removed many tapes from the store prior to the fire and brought them to defendant’s residence.

On cross-examination, defense counsel inquired of Clutter regarding his polygraph examination. Clutter admitted having taken the exam and testified that the examiner told him he had failed.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Hardin
2012 IL App (1st) 100682 (Appellate Court of Illinois, 2012)
People v. Pryor
Appellate Court of Illinois, 2007
Handy v. State
803 A.2d 937 (Supreme Court of Delaware, 2002)
People v. Smith
630 N.E.2d 147 (Appellate Court of Illinois, 1994)
People v. Gard
632 N.E.2d 1026 (Illinois Supreme Court, 1994)
People v. Madura
629 N.E.2d 224 (Appellate Court of Illinois, 1994)
People v. McCain
617 N.E.2d 1294 (Appellate Court of Illinois, 1993)
People v. Kuhfuss
608 N.E.2d 1204 (Appellate Court of Illinois, 1993)
People v. Gard
602 N.E.2d 920 (Appellate Court of Illinois, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
602 N.E.2d 920, 236 Ill. App. 3d 1001, 177 Ill. Dec. 25, 1992 Ill. App. LEXIS 1747, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-gard-illappct-1992.