APPEAL from the Circuit Court of Cook County; the Hon. MARVIN
E. ASPEN, Judge, presiding.
MR. PRESIDING JUSTICE DIERINGER DELIVERED THE OPINION OF THE COURT:
This is an appeal from the circuit court of Cook County. The defendants were convicted after a bench trial of violating section 20-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1969, ch. 38, par. 20-1(b)). Section 20-1(b) provides: "A person commits arson when, by means of fire or explosive, he knowingly: * * * [w]ith intent to defraud an insurer, damages any property or any personal property having a value of $150 or more." Both defendants were sentenced to terms of 1 1/2 to 4 1/2 years in the Illinois State Penitentiary and fined $10,000.
Although both defendants were represented in the trial court by the same attorney, they have each retained separate counsel for the purposes of this appeal. Accordingly, we shall treat each of their appeals individually, as they both raise distinct questions for review.
Defendant Wolf raises six questions for review. (1) whether or not he was denied effective assistance of counsel by the incompetence of his trial counsel and the dual representation of himself and his co-defendant by the same counsel; (2) whether or not the State failed to prove beyond a reasonable doubt he had the "intent to defraud an insurer"; (3) whether or not there was sufficient evidence to prove the guilt of the defendant where there was no adequate and credible identification of the defendant; (4) whether or not the defendant was denied his due process rights by the failure of the State to disclose the "dual identity" of a key State's witness; (5) whether or not the trial court erred in admitting as substantive evidence prior statements of a non-testifying co-defendant; (6) whether or not the State failed to prove the corporate existence of the company alleged to have been defrauded. Defendant Berland adopts these issues insofar as they are applicable to him and raises two additional questions for review: (1) whether or not his trial counsel had a conflict of interest in that he was representing a co-defendant who was charged with the commission of a felony against the interests of Berland, whether or not his trial counsel was incompetent in failing to ask the trial judge to limit his consideration of statements made by each defendant to that defendant, failing to impeach a principal State's witness, failing to contradict the other principal State's witness concerning his presence at the scene, and failing to introduce evidence to explain the insuring of the building; (2) whether or not the defendant was proven guilty beyond a reasonable doubt.
Since both of the convictions arose out of the same occurrence, one statement of facts will suffice for both defendants. On June 30, 1969, the Illinois Fair Plan Association received an application for insurance covering the building at 715 South Lawndale, Chicago, Illinois, from Albert Berland, the owner. Insurance coverage in the amount of $100,000 was issued on August 13, 1969, by the American Casualty Company. On November 19, 1969, the building at 715 South Lawndale burned. By the testimony of Chicago Fire Department investigators, it is apparent the cause of the fire was arson. On May 11, 1973, almost four years later, the grand jury returned a two-count indictment against Albert Berland for the offenses of arson with the intent to defraud an insurer, and conspiracy to commit arson. Defendant Wolf was charged in another indictment with the offenses of arson, in that he burned a building without the owner's consent, arson with the intent to defraud an insurer, and conspiracy to commit arson. The defendants were tried jointly in a bench trial and were found guilty of arson with the intent to defraud an insurer and of conspiracy to commit arson. The charge of arson, burning a building without the owner's consent, against defendant Wolf was nolle prossed during the trial. A post-trial motion in arrest of judgment on the count of conspiracy to commit arson for both defendants was allowed. Judgment on the finding of guilty on the charge of arson with the intent to defraud an insurer was entered.
The testimony for the State at trial rested primarily on two alleged eyewitnesses to the fire. The trial took place in January of 1974, so the eyewitnesses were testifying to occurrences which took place more than four years previously. The first eyewitness to testify was Albert Kyles. He identified Wolf as the man he saw carrying a "red" gasoline can into the building on the date of the fire. He also testified he was very unsure about the time of day it was when he saw the defendant. The witness had seen the defendant in the building previously and claimed to have paid the defendant rent for an aunt who lived at one time in the building. The witness could not be sure whether or not it was one year before the fire or several years before the fire, when he had seen the defendant. Neither could he remember when it was that his aunt moved in or when it was that his aunt moved out of the building.
The second eyewitness for the State was Evelyn Mayberry, also known as Elizabeth McGowan, also known as Mrs. Roosevelt McGowan. Ms. Mayberry, as we shall refer to her, testified she saw defendant Wolf enter the building with a "silver" gas can. Ms. Mayberry also testified the locks on the doors of the building had all been removed and the door she saw defendant Wolf enter was unlocked and open. The first fireman on the scene testified the door to the building was secured with a padlock. Ms. Mayberry had previously testified, under the name of Mrs. Roosevelt McGowan, in a civil suit arising out of the same fire, in the United States District Court, Northern District of Illinois, Eastern Division, Case Number 70 C 519. In the Federal court, Ms. Mayberry testified she never, at any time, saw the faces of the men who went into the building.
In addition to the questionable testimony of these two witnesses, the State offered a great deal of documentary evidence. Immediately upon the commencement of the trial, the State offered into evidence eight transcripts of depositions and testimony of the two defendants which had been given in connection with the suit in Federal court. These transcripts, as the State admitted in the trial court, went "far beyond that of what we are concerned with." The trial judge ruled he would only consider the evidence of other or prior fires according to the guidelines established in People v. Bishop (1934), 359 Ill. 112. The judge stated his understanding of this case as being "there must be some kind of link-up between the offense in question and the prior offense." Besides the voluminous transcripts offered by the State, they also offered into evidence certain files from housing court concerning a number of buildings which had numerous building code violations. Some of these buildings were owned by one of the defendants, some by another, and most of them by neither of the defendants. These exhibits were: 65 Ch 3915, 3434-36-42 West 15th St. and 1448 South Trumbell, owned by Irving Berland; 66 Ch 5026, 3351 West Douglas Blvd., owned by Irving Koppel; 66 Ch 6858, 715-17 South Lawndale, owned by Julius Leher and William Berke; 67 Ch 842, 1542 South Kedzie, owned by Zelmond Greay; 68 Ch 50081, 4025 West Monroe, owned by Fred Cooper; 68 Ch 53352, 715-523 South Lawndale, owned by Fred Cooper; 70 Ch 52442, 918 South Springfield, owned by Albert Berland and Robert Watson; 70 Ch 50409, 2248 West Division, owned by Federal Savings and Loan Insurance Corporation, A.E. Berland Real Estate, and Joseph Murro. Defense counsel objected to the introduction of all of these documents.
• 1 We shall first consider the contentions of defendant Wolf. The first issue presented for review is the defendant was denied the effective assistance of counsel, due both to the incompetence of trial counsel and the dual representation of both Wolf and his co-defendant Berland. We note at the beginning of trial, defendant Wolf was charged with burning the building of his co-defendant, without the knowledge of the co-defendant. This alone would make it impossible for a single attorney to represent both defendants. The leading United States Supreme Court case in this area is Glasser v. United States (1942), 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457. In Glasser the court stated:
"This is significant in relation to Glasser's contention that he was deprived of the assistance of counsel contrary to the Sixth Amendment. In all cases the constitutional safeguards are to be jealously preserved for the benefit of the accused, but especially is this true where the scales of justice may be delicately poised between guilt and innocence. Then error, which under some circumstances would not be ground for reversal, cannot be brushed aside as immaterial since there is a real chance that it might have provided the slight impetus which swung the scales toward guilt." 315 U.S. 60, 67, 86 L.Ed. 680, 698, 62 S.Ct. 457.
The Illinois Supreme Court in the case of People v. Stoval (1968), 40 Ill.2d 109, 113, stated:
"There is no showing that the attorney did not conduct the defense of the accused with diligence and resoluteness, but we believe that sound policy disfavors the representation of an accused, especially when counsel is appointed, by an attorney with possible conflict of interests. It is unfair to the accused, for who can determine whether his representation was affected, at least, subliminally, by the conflict. Too, it places an additional burden on counsel, however conscientious, and exposes him unnecessarily to later charges that his representation was not completely faithful. In a case involving such a conflict there is no necessity for the defendant to show actual prejudice. Glasser v. United States, 315 U.S. 60; Goodson v. Peyton, (4th cir.), 351 F.2d 905."
In the case at bar, the trial judge should have perceived at the outset of the trial, there existed the possibility of defenses for the defendants which of necessity would be in conflict. As was said in the case of United States ex rel. Miller v. Myers (E.D. Pa. 1966), 253 F. Supp. 55:
"His right to counsel under the Constitution is more than a formality, and to allow him to be represented by an attorney with such conflicting interests as existed here without his knowledgeable consent is little better than allowing him no lawyer at all. See Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). This situation is too fraught with the danger of prejudice which the cold record might not indicate, that the mere existence of the conflict is sufficient to constitute a ...