APPEAL from the Circuit Court of Rock Island County; the Hon.
L.E. ELLISON, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
This is an appeal from the circuit court of Rock Island County and the factual situation which resulted in this appeal is as follows.
On May 4, 1976, the defendant was indicted for (1) arson occurring on February 1, 1976; (2) solicitation to commit arson, the solicitation occurring on March 4, 1976; (3) burglary with intent to commit arson occurring on or about February 9, 1976; (4) solicitation to commit arson occurring on February 10, 1976; (5) arson occurring February 13, 1976. On September 13, 1976, the defendant was indicted in two counts for offenses of solicitation to commit arson during February 1976. All acts of arson and burglary at issue occurred at the residence of Mr. and Mrs. Thomas Crom in Silvis, Rock Island County, Illinois.
Prior to trial the trial court dismissed the indictments as to the two counts of solicitation to commit arson during February 1976 for lack of jurisdiction on the grounds that the offenses were alleged to have occurred in the State of Iowa. The trial judge also denied an oral motion to dismiss the March 4, 1976, solicitation and conditionally allowed defendant's motion in limine for the purpose of excluding testimony regarding those solicitations, as well as a Henry County solicitation and an interim shooting attempt at the victim.
A verdict of guilty on the five remaining counts was returned by a Rock Island County jury. A presentence hearing was conducted and the defendant was sentenced to concurrent terms of one to 10 years imprisonment on the February 1, 1976, arson; the March 4, 1976, solicitation; the February 13, 1976, arson; and the February 10, 1976, burglary. The February 10, 1976, solicitation charge was deemed merged in the offense of the February 10, 1976, burglary and arson. Defendant appeals from the judgment entered on the verdict of the jury.
On February 1, 1976, there was a fire in the residence of Thomas Crom in Silvis, Rock Island County, Illinois. A second fire occurred there on February 13, 1976, and a third on March 6, 1976. Defendant was in jail at the time of the third fire.
The Silvis Fire Department was unable to investigate for arson at the time of the first fire which caused extensive damage to the basement and first floor of the house due to the burning of the floor joists. The fire on February 13, 1976, was in the garage and four places in the house.
After the second fire material suitable for use as an accelerant was found spread about in the house and in the garage area as well as in a container. There was also evidence that some paper towels which had partially burned were found rolled up in a corner. Accidental cause for the second fire from electrical appliances was ruled out by Hollis, a State fire inspector, because the electricity was turned off prior to the second fire. It was Hollis' opinion that all three fires were set fires, also that a fuse found between the first and second fires was not involved in either fire.
Billy Meyers testified that on February 10, 1976, two days before his birthday, he brought his car to defendant to be repaired. He agreed to burn down Crom's house for defendant for the sum of $45. Defendant told Meyers he had tried to burn it down earlier in February but had failed. Defendant told Meyers that Crom cheated him out of money. Crom was to testify that he had reported defendant for drawing disability insurance when defendant was able and working.
The defendant paid Meyers $15 at one tavern and $30 later at another tavern (Dolly's Tap in East Moline) and said he was going to Bettendorf, Iowa, to set up an alibi. The balance was originally to have been paid at the Maverick tavern in Bettendorf. The witness did not set the fire, but went to see the police. In conversations with Billy Meyers and undercover deputy sheriff Fisher, at a meeting in Henry County, the defendant said he had tried to burn the house down.
At that meeting (March 4, 1976) the defendant asked Meyers to return the $45 because Meyers had not set the fire. Defendant told the two that he would give them a chance to burn it again, giving them only $20 to do the job this time with the balance upon completion. The defendant also stated at this time that he knew someone was informing on him and asked Meyers whether he had snitched, noting that Meyers and Fisher were the only two persons who knew of the plan to burn the house. Defendant then stated if he found anyone snitching on him he would kill that person. Prior to this occasion some undetermined person shot at the victim Crom in his truck but only the truck was damaged.
Thomas Seidlitz and Brad McMillan testified that one night in February 1976, the defendant came to them at the Maverick in Bettendorf, Iowa, and offered to pay them to burn down his brother-in-law Crom's house because he was mad at the brother-in-law for having caused the defendant to lose some money. They further testified the defendant told them the house was partially burned and was now set up so that the witnesses need only throw in a Molotov cocktail. They thought defendant was drunk and did not take him seriously.
There was also evidence that Crom received two letters, one in an envelope postmarked February 11, 1976, between the first and second fires, and a second letter in an envelope postmarked February 18, 1976, after the shooting incident which occurred after the first two fires. While the prosecution F.B.I. handwriting analyst could not make a positive comparison between the letters and specimens of defendant's handwriting, defendant's girlfriend testified that the letters were written in defendant's handwriting. We note there is nothing in the record presented for review to indicate whether a proper foundation for her handwriting identification existed.
The defendant was arrested shortly after his meeting with Meyers and Fisher in Henry County. He was in jail when the fire of March 6, 1976, occurred. However, defendant's ex-girlfriend testified that defendant pointed out to her the house of a man he said was named Bumper and told her that Bumper set Crom's house on fire while the defendant was in jail, as a favor to him. This favor was apparently unsolicited. This conversation occurred after defendant was released on bail and was driving his ex-girlfriend back from the Maverick in Bettendorf, Iowa.
At trial, Deputy Fisher testified that Troy LaVan (also known as Bumper) lived in the house which the girlfriend had pointed out to Fisher as the house that defendant had pointed out to her.
Little will be added to this opinion to review the testimony of an investigator for the State Fire Marshall. Suffice to say that his testimony excluded possibilities of accidental fire from electrical and gas appliances and spontaneous combustion. From his observation and tests he was unable to positively determine what methods or materials were used to set the fires.
The defendant was found guilty of all charges. New counsel filed timely and extensive post-trial motion. That motion was denied. Defendant was sentenced to concurrent one- to 10-year terms of imprisonment on all charges except the solicitation of Billy Meyers to commit arson on February 10, 1976, which the judge found had merged into the February 13, 1976, arson.
After sentencing the defendant appeared with a third counsel and on the day after he filed two notices of appeal, as well as a supplemental motion for a new trial. Attached to the motion were affidavits of the victim and two others which were offered as new ...