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People v. Zenner

OPINION FILED OCTOBER 16, 1979.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ALBERT ZENNER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE M. MAROVICH, Judge, presiding.

MR. JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

Defendant appeals from his conviction of one count of arson (Ill. Rev. Stat. 1975, ch. 38, par. 20-1(a)) following a jury trial, for which he received a term of two to six years in the penitentiary. Zenner raises as issues for review whether: he was proved guilty beyond a reasonable doubt; certain of his post-arrest, pretrial statements were properly admitted into evidence and commented upon in the State's closing arguments; the State's proffered instruction on circumstantial evidence was properly given to the jury; and evidence that the owner of the burned structure did not carry insurance on it was properly admitted.

For the reasons hereinafter set forth, we affirm.

The State's case in chief opened with the testimony of Richard Whorton, a psychiatric social worker who lived on the 29th floor of a highrise building at 55 W. Chestnut Street in Chicago. The apartment building was located on the southeast corner of Dearborn and Chestnut Streets. Whorton's apartment was located at the southwest corner of the building. On November 3, 1976, Whorton was awake watching election returns on television. At approximately 1 a.m., he walked over to the television set situated at the south wall next to a picture window and looked down toward the street. He noticed a man emerging from the back end of a building on the east side of Clark Street less than one-half block south of Chicago Avenue, into an alley illuminated by one street light at the back or east end of the building, and another at the south end of the alley, facing Superior Street. The two lights provided almost "continuous" illumination. The man attracted his attention because he was hurrying and, as he headed south down the alley, he looked back several times to the area from which he had just come. His view of the man was unobstructed.

About 10 seconds after he first noticed the man, Whorton picked up a pair of binoculars and continued watching him as he went south in the alley toward Superior; then west on Superior to Clark, still hurrying; and then crossing to the west side of Clark, again looking back toward the building from which he had come. At about this time Whorton noticed black smoke billowing from that building, and observed the man standing on the corner of Clark and Superior "watching" the building and the smoke.

Whorton then dialed 911 on his telephone located near the window to report the fire and its location. He redialed 911 to report that he had just seen a white male, between 30 and 40 years old, wearing a leather jacket, tan shirt and trousers and without a hat, leave the building that was going up in flames. Whorton was looking at the individual as he gave the description. He saw the man then head south on Clark and throw a bag into an empty lot alongside a building with the word "Victor" painted on it. The man then proceeded south to Huron Street and stood in the entryway to a restaurant located at the Wacker Hotel, and again looked back in the direction of the burning building.

The man thereafter entered a parking lot on the east side of Clark, whereupon Whorton dialed 911 a third time to report that fact. He kept him under observation until he disappeared from sight. Whorton watched the parking lot, but saw no cars pull out.

Ten to twenty minutes later Whorton again spotted the same man at the corner of Dearborn and Chicago, walking west on the south side of the street, then crossing to the north side when he was about half way between Clark and Dearborn, at which time he was stopped and taken into custody by a policeman. At about this time, when a police sergeant arrived, Whorton told him about the man's apprehension and the discarded bag. The sergeant then relayed the information to policemen below who recovered the bag.

Later, Whorton identified defendant at a police lineup and gave police his signed statement. At trial, he identified the defendant as the man he saw emerging from the building, who threw the bag away, who was arrested and whom he identified at the lineup.

On cross-examination Whorton testified that he noticed the tan bag when defendant had it with him in the alley, but was most aware of it when he saw defendant throw it away. There were very few people on the streets on the night in question, and no one else was in the alley when he observed defendant there. It was not unusual for him to see people on Clark Street with brown bags in their hands. The description of defendant given by Whorton at the police station did not state that defendant did not have a full head of hair, but did include one that he did not have long hair. Whorton asserted that this statement did not accurately reflect his description of the man in that it did not contain what was actually said about his hair. About five minutes had passed between the time Whorton first saw defendant and the time he first saw black smoke billowing from the building exited by him. He noticed the flames about the same time the fire trucks arrived, which was prior to defendant's disappearance into the parking lot. Whorton did not lose sight of him from the time he left the building until the time he disappeared into the parking lot. He described the discarded bag as "medium sized," but larger than bags generally used to carry a pint of liquor. He did not have as good an opportunity to view defendant's face as he had to view the rest of him.

Chicago police sergeant Walter Bortko testified that at approximately 1 a.m. on November 3, 1976, he received a radio call concerning a fire in the 700 block of North Clark, including a description of a suspect wanted in connection with the fire. Later given Whorton's name and address, Bortko went to see him and was informed by Whorton that defendant had just been "picked up." Bortko then advised police about the discarded bag, which they recovered from the vacant lot as described by Whorton. The fire occurred at the Worthington Hotel at 747 N. Clark, which had been abandoned a few months before the fire. Bortko had previously responded to a number of calls regarding unauthorized persons in the hotel.

Chicago police officer James Kennedy testified that he and his partner received a radio call about a fire in the 700 block of North Clark at approximately 1 a.m. on November 3, 1976, also being apprised that a white male, 30 to 40 years old and with short, stocky build, wearing a dark leather coat, brown tannish pants and a light brown shirt was seen leaving the building. Proceeding to the site of the fire, Kennedy observed defendant wearing a dark leather coat and khaki pants walking westbound on the north side of the street and placed him under arrest.

Kennedy, after being contacted by Bortko who informed him that defendant had thrown a bag into a vacant lot at the base of a building with the word "Victor" painted on it, went to that location and recovered the bag. It was unnecessary for him to use a flashlight since lighting conditions were "very good." Inside the bag was a metal can with a "mineral spirits" smell to it. At the police station Kennedy inventoried one brown paper bag, one can of spirits of turpentine and one receipt for the purchase of the turpentine. There were about one-half dozen persons on the street at the time defendant was arrested; it was not uncommon to see people walking on the street in that area. Kennedy did not recall the description of the suspect as stating that he was bald or had a bald spot. He determined that defendant lived directly behind the Worthington Hotel. His search of defendant's person produced nothing which could have been used to ignite a fire.

Police sergeant Daniel McGrory testified that on November 3, 1976, he was serving as a watch commander for the Chicago police bomb and arson unit. Shortly after 1 a.m. he received a phone call from defendant, whose voice McGrory recognized from prior telephone and personal contact. Defendant told McGrory "`there is a big fire in the back of my place. You better get your guys over here * * * [because] it must be an arson.'" Defendant was in a very excited state, gasping and panting over the phone. He asked McGrory to call him back at his home telephone number. When McGrory did so, defendant requested permission to watch the fire, expressing fear that he might be arrested at the scene. McGrory told defendant that he could do whatever he wanted and defendant responded that he would then tell the police he had permission from McGrory to go to the fire. McGrory again told defendant he could do as he pleased, and their conversation ended.

On cross-examination McGrory stated that he received the phone call at approximately 1 a.m., but he did not know the exact time. He heard fire engines or sirens in the background. Later that morning, McGrory had a conversation with Whorton which was later reduced to a signed, written statement. The description of the suspect therein contained, among other things, the statement that he did not have a full head of hair.

Chicago fire department battalion chief Robert Koujourian testified that he received an alarm for a fire at 747 N. Clark at 1:01 a.m. on November 3, 1976. When he arrived at the scene the front of the building located there was totally involved in flames and heavy dense black smoke.

Lieutenant Francis Burns, a fire investigator assigned to the Chicago police bomb and arson unit, testified that he received a call from Sergeant McGrory several minutes before 1:20 a.m. on November 3, 1976, asking that he investigate a fire at Chicago and Clark. At about 1:30 a.m. he and Investigator Frank Gutrich arrived at the scene. On the first floor center of the building they discovered a 4'x6' hole and number of smaller ones which exhibited an irregular burning pattern and indicated a liquid accelerant was used to start it. Turpentine is an accelerant which, like other oil or spirit based products, produces black smoke when burned. In Burns' opinion the fire was set with the aid of an accelerant. Burns determined that the hole in the floor had not been produced by falling firebrands or the fire department's actions. Although he requested evidence technicians to take samples for analysis, the building had collapsed and buried the point of origin prior to their arrival. Gas and electrical service had been shut down before the fire occurred.

Officer Francis Gutrich, assigned as an investigator to the arson unit of the Chicago police criminal investigation division, identified defendant as the man with whom he spoke at the Chicago Avenue police station at about 2:30 a.m. on November 3, 1976. He advised him of his constitutional rights and had defendant execute a "Miranda Waiver." Defendant then told Gutrich that "just prior" to the time the fire was reported he had been on Clark and discarded a bag containing a can in a vacant lot; that he had the can with him because he was using the turpentine for some paint spills at his residence; and that he had neither been in the alley nor in the hotel. Gutrich did not reduce defendant's statement to writing. Defendant told Gutrich that he had purchased the turpentine at a hardware store at 900 N. State and that it was used for cleaning up paint and brushes. He also asked the officer to go to his residence to see where the turpentine had been used. Gutrich and his partner went to the building but were unable to gain entry.

Assistant State's Attorney Joseph Locallo then testified as to a conversation he had with defendant after 4:45 a.m. on November 3, 1976, alone, at defendant's request. Locallo told defendant that he was an assistant state's attorney, not his attorney, and that he could not represent him. Defendant indicated that he understood, and Locallo again advised him of his Miranda rights, which defendant agreed to waive. Defendant told him that he had been painting a door in his apartment building on November 2, 1976. At about 5 p.m. he decided to clean up the mess, using some turpentine he had bought in a hardware store at Oak and State Streets. At approximately 5:30, after cleaning up and while on his way to a restaurant at Clark Street and Chicago Avenue, near a building, he threw away the can of turpentine in a brown paper bag containing the sales receipt. After eating he met a friend named Joe the Hack, with ...


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