APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
J. COLLINS, Judge, presiding.
MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Jose Aponte, the defendant, was arrested on May 16, 1973. He was charged with the criminal offense of arson, in violation of section 20-1(a) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 20-1(a)). Subsequent to a jury trial held in the Circuit Court of Cook County, County Department, Criminal Division, the defendant was convicted of the offense charged and was sentenced to serve a period of incarceration in the Illinois State Penitentiary for a period of not less than 3 years and not more than 10 years. The defendant's motions for a judgment of acquittal notwithstanding the verdict, an arrest of judgment, and for a new trial were all denied. The defendant appeals.
The issues presented for review are (1) whether the defendant was proved guilty of arson beyond a reasonable doubt; (2) whether the defendant waived for purposes of appeal any objection relating to the admission of testimony regarding his alleged threats to commit arson by his failure to challenge such testimony in his written motion for new trial; (3) whether such testimony was properly admitted into evidence at trial; and (4) whether the trial court erred in admitting into evidence and sending to the jury certain photographs.
On May 10, 1973, a garage owned by Walter Stawicki, located at 3250 West Division Street in Chicago, burned to the ground. The garage was rented to Mr. Sylvester Bell for the purpose of storing his car, a 1963 Chevrolet, which was also destroyed in the garage fire. Stawicki estimated that at the time of the fire the garage had a value of $1800.
Charles Maclin testified that on May 10, 1973, he resided at 3242 West Division, four doors away from the burned garage. His sister, Isella Maclin, also lived on West Division Street, in the rear of number 3244. At approximately 1 p.m. on the above date, Charles and Isella were in front of his residence. At this time the defendant, known to Charles as "Shorty," approached the Maclins; he was accompanied by five of his friends. The defendant then directed a verbal threat at the Maclins, informing them that they would be burned out that night. The defendant made reference to the race of the Maclins in his threat. When the witness responded, "Come on," to him, the defendant turned and walked away. Mr. Maclin saw a fire in the rear of 3244 at approximately 11:30 p.m. that night, but did not see anyone set the fire.
Isella Maclin corroborated the testimony of her brother. On the afternoon of May 10, she was on her mother's front porch watching her children who were outside playing. The defendant then approached Isella and her brother and threatened them. That evening, at approximately 11 or 11:30 p.m., while watching television in her home, Isella heard the dogs barking. When they continued to bark, she went into her children's room to check on them. She testified it was then that she saw a "flare up" coming from her kitchen window. She returned to the couch to watch television, sat down and then saw a flame. Isella stated that when she sat down to watch television, the garage was not on fire; it was on fire when she saw the flame. She then went to her kitchen window to look outside, where she saw "Shorty," whom she later identified as the defendant, pouring something on the garage located between Stawicki's garage and her home. According to the witness, the defendant was "pouring something down side the garage. Then I made a funny move and he laid the gas down." Isella described the defendant as wearing a light colored tee shirt, black suspenders and black pants. She saw the defendant light a match. A flame "came up" and he threw the match into a garbage can. The defendant then ran towards Spaulding Street. Isella proceeded to gather her children and exit from her home. She and the children went to her mother's house. Isella later saw the defendant on the corner, wearing the same clothes. She told firemen that she had seen the man who had planted the fire and pointed out the defendant to them.
On May 16, 1973, police investigators questioned Isella Maclin about the garage fire. The officers showed Isella six photographs. One of the photographs depicted the defendant, Jose Aponte. Ms. Maclin then identified the defendant as the man she had seen from her kitchen window on the night of the fire. As the officers escorted the witness from the offices of the Gang Crime Investigation Division of the Chicago Police Department, where she had given them a written statement, Isella noticed the defendant standing on a street corner. Again, she pointed him out to the officers. Later that evening, at approximately 11 p.m., the defendant was arrested.
The defendant denied having seen Isella Maclin at any time on May 10, 1973, and testified that he spent that afternoon with friends. According to the defendant, at approximately 12:30 that afternoon he arrived at the home of Wilfredo Soto where he remained for 25 minutes. He and Soto then drove to Humbolt Park where they parked Soto's vehicle and waited for another friend, Jimmy Santiago. After Santiago arrived, the friends lingered for 20 minutes discussing how they would divide the cost of some beer. The defendant left the park twice during the day, at approximately 2 p.m. and 5 p.m., to get beer. He returned after each trip and consumed the liquor. The defendant did not leave the park for the evening until 6 p.m. Aponte then went to the home of his former girl friend's mother; Soto accompanied him. The defendant's grandmother, his girl friend, and her mother were all present at the home. When Soto returned at 7 p.m., after having gone to his own home for dinner, Aponte informed him that his grandmother had fainted. He asked Soto to help him find his father. At 7:30 p.m., the defendant took his grandmother to a hospital where he remained until 10 p.m. He was accompanied the entire time by Wilfredo Soto, his father, his girl friend, and her mother. When the family left the hospital, they took the grandmother to the home of the defendant's aunt, Guillermina Rivera. The defendant remained at his aunt's home for "15 or 20 minutes." Soto, the defendant's girl friend, and her mother waited outside for the defendant in Soto's car. Aponte then returned to the car. Soto first drove the girl's mother to her home and then took Aponte and his girl friend to the defendant's home at approximately 11 p.m. Soto did not enter the defendant's home. The defendant testified that prior to his arrest, he was not aware that the garage at 3250 West Division had been destroyed. The defendant's testimony was substantially corroborated by defense witnesses Wilfredo Soto and Guillermina Rivera.
The defendant further testified that he had been threatened and shot at on October 13, 1974, by Isella Maclin. According to the defendant, on that date he and a friend, George Rios, went to the liquor store located at 3251 West Division. Isella Maclin and another girl were in the store. Isella attempted to bump the defendant as she passed by him. She began swearing at the defendant and said, "You dead, boy. You a dead MF." When Aponte questioned Isella, she responded, "You know what I mean by that. You were there Friday night when they shot my brother." She then accused him of shooting her brother. The defendant told her, "Get off my back," and walked out of the store. Isella came out behind the defendant and said to him, "Step it off, boy. You better step it off." Aponte and Rios continued walking for half a block and then heard shots being fired. The two men ran into the hallway of a building. They were not injured. Aponte stated that he did not see a gun in Isella's hand inside of the store, and that he never saw anyone with a hand raised to fire a gun. He never turned around to see where the bullets came from and did not know where they struck.
George Rios testified that he and the defendant were in a liquor store on October 13, 1974; that two women entered the store and one of them, whom he could identify, threatened Jose Aponte. According to Rios, the woman accused Aponte of shooting her brother. After Rios and Aponte had left the store and walked a distance of half a block, a shot was fired. Rios then looked in the direction of the liquor store and saw the woman standing outside of the store with her hand raised. He did not see a weapon in her hand. The witness stated that he could recognize the sound of gunfire because he had heard that sound before. Rios did not know the name of the woman who had shot at him.
Isella Maclin testified that she and a friend did go to a tavern on October 13, but denied that she saw the defendant at that time. Ms. Maclin further denied that she had threatened Aponte, accused him of shooting her brother, or fired a weapon at him.
Aponte stated that on the same day Isella shot at him, October 13, 1974, he was arrested for allegedly shooting her brother. According to the defendant, he was arrested because Isella informed the police that he had shot her brother. He testified that after he was taken into custody by police officers, they took him to the home of Isella Maclin where she identified him and again accused him of the shooting. After further investigation, the defendant was released.
Maria Cruz, mother of the defendant's present girl friend and grandmother of his child, appeared as a witness for the defense. On May 10, 1973, Ms. Cruz resided at 3247 Crystal Street. She stated that her home was almost directly across from the burned garage on the opposite side of the alley. That evening, at approximately 11 p.m., she was walking home after having visited with a neighbor. She stopped on the sidewalk in front of her home when she saw two boys running. The boys carried a yellow and red can that was at least 18 inches wide. Ms. Cruz entered her home and immediately saw smoke coming from the garage. The witness testified that she could see everything that occurred in the alley from the windows of her home, and that she saw two boys talking in the alley. She was familiar with only one of them, whom she identified as a youth by the name of Tarzan, and was able to describe him. She did not pay attention to the other youth and stated only that he was thin. Ms. Cruz stated that she did not see Jose Aponte at any time that night. She admitted not being acquainted with the defendant at the time of the incident.
After the fire, Ms. Cruz did not inform anyone of what she had witnessed. She testified that she was afraid of Tarzan and for that reason did not go to the police. She revealed her information to the defendant after she learned that he had been charged with arson and after the death of the youth named Tarzan. Ms. ...