APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM
A. KELLY, Judge, presiding.
MR. JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
The defendants, Ricky Stevenson and Alfred Avery, were tried in the circuit court of Cook County on the charges of attempt arson and attempt aggravated arson. Following a bench trial, both defendants were convicted. Stevenson was sentenced to eight years' imprisonment, and Avery was sentenced to four years' imprisonment. Defendant Stevenson appeals his conviction and sentence, claiming that: (1) he was denied a fair trial as a result of the trial court's failure to sever, sua sponte, Stevenson's trial from that of his co-defendant; or, alternatively, that he was denied the effective assistance of counsel when his attorney failed to request a severance; (2) an insufficient foundation was laid for the admission of expert testimony and exhibits; (3) he was deprived of his rights of confrontation and cross-examination when he was not permitted to cross-examine his co-defendant Avery regarding Avery's interest, bias or motive to falsely accuse Stevenson; (4) his sentence is excessive because no reasonable basis exists for the disparity between the sentence imposed on Stevenson and that imposed on his co-defendant; and (5) he was improperly convicted of both attempt aggravated arson and attempt arson, which is a lesser included offense. Defendant Avery appeals his conviction, alleging that the State failed to sustain its burden of establishing his guilt beyond a reasonable doubt.
On February 3, 1978, Officers Tribble and Muse were on routine patrol when they observed two men standing near the doorway of a tavern. One man was emptying a can of liquid onto the doorway; the other appeared to be striking matches. When the officers approached the men, one ran and the other, later identified as defendant Avery, stopped and was apprehended. Tribble began to chase the suspect who fled. When he realized that he could not catch the suspect, Tribble sent out two flash messages.
Officers Herr and Gordon were on patrol in the area and heard the flash messages about a suspect wanted in connection with an attempted arson. They went to the scene and received a description of the suspect, who was reported as wearing a long black coat and a reddish-colored stocking cap. The officers proceeded to patrol the area and found a man who fit the general description standing at a bus stop. The man voluntarily accompanied the officers to the scene, where Muse stated that he was not the suspect. On their way to return this man to the bus stop, Herr saw a man in an alley removing his coat. Herr was initially unsure of the man's identity, but later identified him as defendant Stevenson. When Herr ran toward the defendant, the defendant placed a bundle of clothes behind a garbage can, ran a few steps, then stopped. The officers arrested defendant Stevenson and recovered the bundle, which included a long black coat, a brown and rust stocking cap and two pair of gloves. Defendant Stevenson was returned to the scene, where he was identified by Officer Muse as the wanted suspect.
Herr placed the bundle of clothes in a plastic bag. His partner, Gordon, took the bag to the police station and inventoried the contents. An inventory slip shows that it was then sent by police mail to the laboratory for analysis. At trial, Herr identified the coat, cap and gloves as the articles he recovered from defendant Stevenson. He testified that when he recovered the coat, it smelled strongly of a flammable substance, and that it still had the same odor on the day of trial.
Officer Moran, an evidence technician, arrived at the scene shortly after the defendants were arrested. He recovered a partially filled can of charcoal lighter and took samples of fluid from the doorway and ground in front of the tavern. Moran also found a partially filled book of matches, an empty matchbook and three burnt matches.
Frank Sanders, the owner of the tavern, testified at trial that defendant Stevenson engaged in a "scuffle" at the tavern a few hours before the alleged offense. Sanders knew both defendants and had seen them together on several occasions. He further testified that defendant Avery was not in the tavern on the night of the incident.
Cleo Winters, a tenant in the building in which the tavern was located, testified that he was decorating his apartment at the time the alleged offense occurred. An unusual noise caused him to look out of his window, and he saw two men standing in the doorway of the building. He watched the men walk to the tavern entrance, where one of them turned the corner and was lost from Winters' view. A police car arrived, and Winters saw the man who turned the corner run from the scene. At this point, Winters recognized the man as defendant Stevenson. He was able to identify the other man as defendant Avery. Winters testified that he had known both defendants for a few years. Winters also testified that earlier that morning he heard angry voices coming from the street near the tavern. He looked out of his window and recognized defendant Stevenson.
William Tyrrell testified as an expert witness in the area of chemical analysis. Tyrrell stated that on February 6, 1978, three days after the alleged offense, he performed tests on a coat, cap and gloves given to him by the chief chemist. Tyrrell testified that certain documents indicated that these items had been sent by police mail. He identified in court the items he had tested and stated that the tests showed the presence of charcoal lighter on the items. The coat, cap and gloves were admitted into evidence over defendant Stevenson's objections.
Defendant Avery testified that on the morning of February 3, 1978, he was coming home from a party when he saw defendant Stevenson in an alley near the tavern. Stevenson told Avery that he had had a fight with some people in the tavern. Stevenson then produced a can from under his coat and began to pour liquid on the tavern door. Defendant Avery testified that he tried to dissuade Stevenson from burning the building.
During his cross-examination of Avery, Stevenson attempted to elicit testimony concerning the preliminary hearing. When the State objected, Stevenson's attorney stated, "Judge, I think I can go in to show motive of this defendant's testimony." The trial judge heard further arguments on the issue, then sustained the objection.
• 1 Defendant Stevenson first contends that the trial court erred when it failed to sever, sua sponte, Stevenson's trial from that of his co-defendant. Stevenson argues that his defense was so antagonistic to that of defendant Avery that he would be unable to obtain a fair trial without a severance. While it is true that a severance should be granted where co-defendants present antagonistic defenses (People v. Davis (1976), 43 Ill. App.3d 603, 357 N.E.2d 96), the general rule is that a defendant who requests a severance must demonstrate prior to trial how he would be prejudiced by a joint trial (People v. Miner (1977), 46 Ill. App.3d 273, 360 N.E.2d 1141). Defendant Stevenson argues that even though he failed to request a severance, the trial court was obliged to sever the trials sua sponte. He cites People v. Wheeler (1970), 121 Ill. App.2d 337, 257 N.E.2d 587, as support for this argument. In Wheeler, however, the State's Attorney informed the trial court about a month before trial that the testimony of one defendant would incriminate the other. Here, the trial court was not informed prior to trial that Avery's testimony would inculpate Stevenson and therefore had no basis on which to grant a severance.
• 2 In People v. Precup (1977), 50 Ill. App.3d 23, 365 N.E.2d 1007, aff'd (1978), 73 Ill.2d 7, 382 N.E.2d 227, the defendant cited People v. Wheeler (1970), 121 Ill. App.2d 337, 257 N.E.2d 587, as authority for his argument that the trial judge was required to order a severance sua sponte where testimony at trial revealed a statement by one defendant which may have incriminated his co-defendant. The court refused to recognize any such requirement and distinguished Wheeler as follows:
"We have found no other case in which the duty of the trial court to sever was framed in terms of a sua sponte requirement. It is to be noted that, in Wheeler, the fact of antagonistic positions in the context of one defendant implicating the other was made known to the court prior to the trial. In such context Wheeler is not authority directed to the question of a sua sponte severance by the court ...