APPEAL from the Circuit Court of Cook County; the Hon. AUBREY
F. KAPLAN, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendant, Linda Lee Klisnick, was indicted for the offenses of aggravated battery, attempt murder and arson. (Ill. Rev. Stat. 1975, ch. 38, pars. 12-4(a), 12-4(b)(1), 8-4, 9-1 and 20-1.) After a bench trial, the circuit court of Cook County found defendant guilty of arson, but not guilty of the other charges. The court entered judgment on the findings and sentenced defendant to a term of incarceration in the Department of Corrections of not less than one year nor more than one year and one day.
Defendant appeals her conviction, contending that she was not proved guilty beyond a reasonable doubt and the trial court erred in admitting testimony concerning the threatening contents of a note when it was not produced at trial.
Ron Lira, the complaining witness, testified that on March 16, 1975, at about 6 p.m., he was at his brother's apartment in Chicago, Illinois. Several other people were also present, including his brother Roy Lira, Dave Tibor, Steven Rosenquist, the defendant, Dawn Soderburg and Cheryl.
Lira testified that defendant requested him to cash $20 worth of food stamps for her. He agreed, placed the stamps on the kitchen table and went into the bathroom. When he returned from the bathroom, the food stamps were gone. Defendant accused Lira of "ripping her off" and an argument ensued.
Complainant left with his brother-in-law Dave Tibor and went to his father-in-law's home. Lira further testified that he went out that evening with his in-laws and returned to their home around midnight. Upon their return, Lira received a note, found by his brother-in-law. Lira described the note as written on yellow paper, approximately four inches by five inches, with a jagged edge. He could not recall its contents verbatim, but testified that it was to the effect:
"Ron, you burned me once. You are not going to burn me again. * * * I am going to burn you and your property, personal property."
Lira testified that the note also contained three signatures in the following order: Linda, Dawn, Cheryl. Lira went home and threw the note away.
At home, Lira's wife and children retired for the night. Lira went into the dining room, sat on the couch and listened to the stereo. As Lira was listening to the stereo, he heard an object come through the window. At this point he ran out the front door of his first-floor apartment, jumped over a railing and ran into a gangway. He then observed defendant and Dawn Soderburg about fifteen feet away from him, standing towards his dining room window. Lira testified that he observed a glass-type object with a flame at the end in defendant's hand. Her arm was in motion and the object left her hand and entered through Lira's dining room window.
After throwing the object, the two girls ran towards a car and Lira gave chase. He observed defendant enter the driver's side and Dawn the passenger's side of a 1965-1967 blue Oldsmobile. He also observed the back of the head of a third person in the back seat of the vehicle.
Lira then noticed that his dining room was on fire and ran back into his home. He evacuated his wife and son and returned for his daughter. At that time, he heard a "whoosh" sound and was knocked unconscious. Lira next remembered waking up in a hospital.
Lira also testified as to the extent of the injuries suffered by his daughter and himself. He identified various photographs of his apartment depicting extensive fire damage. Finally, Lira testified that he had previously been convicted of theft.
On cross-examination, Lira testified that on the day of the fire he made a statement to Officer McQuinn that he had been lying on the couch, half asleep, when he heard a crash and ran out to investigate. At that time he did not tell the officer about seeing any persons in the gangway. About 10 days later, Lira gave another statement to McQuinn where he mentioned having seen someone in the gangway.
Prior to the fire a candle had been lit, but Lira testified his wife had put it out before going to bed. Lira did acknowledge that in his first statement to Officer McQuinn he said that he originally thought the cause of the fire was a candle, but realized that was impossible due to the extent of the fire.
On redirect examination, Lira explained that the first statements given to Officer McQuinn occurred while he was in pain and sedated in the hospital emergency room and intensive care areas. He was sedated for about nine days.
George Tibor testified that during the evening hours of March 16, 1975, he went to dinner and a show, accompanied by his wife, son David, daughter and son-in-law Ron Lira. They returned home at about 12 p.m. Shortly thereafter defendant, Dawn Soderburg and Cheryl came to the door. Defendant asked Tibor whether Ron Lira was inside and Tibor responded negatively. Defendant explained she was angry and wanted to see Lira because he had taken some money. She also mentioned seeing Lira's truck parked across the street, but Tibor explained it was inoperable.
The three girls returned to the car, a dark blue 1965 Oldsmobile, and drove about one-half block away. They stopped the car and backed up to Lira's truck. The witness next observed Dawn get out of the car and place a note under the windshield wiper of the truck. Tibor instructed his son to retrieve the note. According to Tibor, the note was a yellow piece of paper about four by six inches with a jagged top edge. Although he could not recall its exact contents, Tibor testified as to the substance of the note:
"Ron, I want my $20 that you burned me for. You burned me once. More than once, and you are not getting away with it. If you don't give me the pay me the $20 by Sunday, I am going to burn you and your possessions."
The note had three names on the bottom, in the following order: Linda, Dawn and Cheryl. After the fire in Lira's apartment, Tibor recovered the note from Lira's kitchen garbage can. He gave the note to Officers McQuinn and Schuler.
Steven Rosenquist testified for the State that he was present in complainant's brother's apartment on March 16, 1975, between 5 and 7 p.m. He heard a discussion between complainant and defendant concerning food stamps, but admitted not paying too much attention at that time. Rosenquist testified that Lira left the apartment. At about 10:30 to 11 p.m., defendant, Linda, Dawn, Cheryl, Joe, Junior and Rosenquist left in defendant's car to find Lira. They went to the Tibor residence and noticed Lira's truck parked nearby. The three girls went to see if Lira was there, had a discussion with Mr. Tibor and returned to the car. Rosenquist testified that defendant was mad about something. As the car started to pull away, defendant said: "That stupid Lira ripped me off like that, burned me like that." Junior suggested that she write a note to Lira.
At this time they backed the car up and defendant started writing on a yellow piece of paper. She then handed the note to Dawn, who signed something and handed it to Cheryl, who also wrote something on the note. Rosenquist did not see the contents of the note but described the paper as yellow, 8 by 11 inches and ripped on the side. At defendant's request, Dawn placed the note on Lira's truck and they returned to the apartment.
The three girls again left and returned at about 12:30 p.m. At this time Rosenquist, Junior, Harry and George were also in the apartment. Rosenquist testified that he heard a conversation concerning how to make a Molotov (cocktail) but couldn't recall who participated in the conversation.
On cross-examination, Rosenquist testified that he gave a statement to police officers and said Lira agreed to exchange money for food stamps with Cheryl. Additionally, in this statement he said Dawn wrote the note. On redirect-examination, he explained that all three girls wrote something on the note.
Investigator Nicholas Schuler testified that on March 17, 1975, he talked with George Tibor, Sr., pursuant to his investigation of the Lira fire. At this point Schuler received a handwritten note on yellow paper that was torn on two sides and approximately four by five inches. Schuler testified the note said substantially that: "You burned me once, and if I don't get my $20 back I will fuck you and your house." Three names followed: Linda, Dawn and Cheryl. Officer Schuler placed the note in a "street file" at headquarters. He remembered seeing it the day of the preliminary hearing and replacing it in the file. At the time of trial, Schuler did not know what had happened to the note. No copies were made of the note and no handwriting samples were taken from defendant.
Officer John Bickler of the Chicago Police Department Bomb and Arson Unit next testified. His duties consisted of determining the cause and origin of fires. Bickler testified that the fire in the Lira residence originated in the dining room. The electrical outlets and wires were in normal condition ...