APPEAL from the Circuit Court of Kankakee County; the Hon.
JOHN F. MICHELA, Judge, presiding.
JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Lee W. Johnson was convicted of attempted aggravated arson and resisting a peace officer after a jury trial in Kankakee County. He was sentenced to 10 years on the "attempt" charge and one year on the "resisting an officer" charge. The convictions stemmed from defendant's actions during and after a bizarre domestic dispute involving him and his former girlfriend.
The defendant first contends on appeal that his attempt aggravated arson conviction should be reversed because the evidence did not establish that he took a substantial step toward the crime or that he had the necessary specific intent to commit aggravated arson. He also argues that he was denied a fair trial where it was brought forth before the jury that he previously had been arrested and where there was prejudicial prosecutorial misconduct in the closing arguments.
The unusual events involved in this case began on November 29, 1980, in Kankakee. Sometime between 2:30 and 3:30 p.m. on that day, two Kankakee police officers were dispatched to a house on the corner of Rosewood and Merchant Streets in Kankakee. The defendant Lee Johnson had called the police for the purpose of having them help him recover a gun that was within the house there. When the officers, in separate squad cars, arrived, Johnson was standing in front of the house. He told them that he had lived in the house with his former girlfriend, Glenda Pankey, and that he had left a gun with her, which she was refusing to return. The officers, accompanied by Johnson, proceeded onto the front porch and Officer Born then knocked on the door. Pankey eventually answered, and let Born in the house. When inside, he noticed that there were another woman and several children present. While Born was inside, Johnson could be heard speaking loudly on the front porch to Officer Osenga. Johnson was upset, repeating that he wanted his gun and that it was in the house. Osenga at the time requested to see Johnson's owner "I.D." card, which he produced, along with a receipt for the gun. The officer then told Johnson that they could not search the house for the gun. The defendant responded, "If I don't get this gun back, I will burn this motherfucking house down."
Officer Born came out of the house several minutes later, telling Johnson that Pankey claimed not to have the gun, but also offered to bring it to the police station when she did. With this, Johnson became even more upset and again threatened to burn the house. Born went back into the house, only to return again with another of Pankey's denials. Johnson became further agitated and continued to spout his threats. At this time, the officers advised Johnson to leave the area since he was causing a disturbance and could be arrested. At trial, Osenga testified that Johnson then told him that he didn't care, that he had been arrested before. Objection to the reference to prior criminal activity was sustained, and the jury was instructed to disregard the reference. A later motion for a mistrial based upon the improper evidence was denied. In any event, after the warning, Johnson left the house, and he walked east on Merchant Street to his own residence, about a half a block away. The two police officers, meanwhile, pulled into a lot, a block away, to talk. Within minutes, they observed Johnson walking north on Rosewood carrying a gasoline can. He walked to the Clark Service Station, directly across from the lot where the two officers sat in their squad cars. He put some gas in the can, paid for it and then headed back down Rosewood. Officer Born was called to other duty, but Osenga stayed. He then drove south on Rosewood, and upon reaching Pankey's house saw Johnson take two or three steps on the south side of the house while pouring gasoline. Johnson was about a foot away from the house, which had a 1 1/2- to 2-foot concrete foundation, and Osenga could not tell if the gas was hitting the ground or the house. The ground was snow-covered grass and earth. It was a cold and damp day.
When Johnson noticed Officer Osenga, he stopped pouring the gasoline and started to walk away from the house, still carrying the can. Osenga then exited his squad car and told the defendant he was under arrest. Johnson kept walking toward his own residence, setting the gas can down in his front yard. Osenga again told him that he was under arrest. Johnson told Osenga that he would not go with him, whereupon Osenga pulled Johnson from the porch and a scuffle occurred. Johnson tried to run, but Osenga "grabbed" him and pushed him against the house. Johnson pushed back, and then Osenga hit Johnson in the mouth, threw him to the ground, and began handcuffing him. Osenga, after subduing Johnson with the help of another officer who arrived at the scene, then retrieved the gas can, which was half full. The other officer then went to Glenda Pankey's residence, where he was given the defendant's rifle by a woman there. Pankey informed the officer at that time that the gun had been there, as Johnson had indicated, since the previous night. At the police station, a search of Johnson revealed that he had no matches, no lighter, and nothing else which could serve as an ignition source.
At trial, all of the above evidence was presented, and in addition a State arson expert testified concerning the nature of gasoline fires and the necessity of an ignition source for starting such a fire. Defense motions for directed verdicts were denied. No witnesses were called by the defense. Closing arguments were then presented. As several comments by the prosecutor during the arguments are alleged to have denied defendant a fair trial, we set forth those pertinent portions of the closing argument. The prosecutor, in discussing the crime of attempt, informed the jury that impossibility was not a defense to the crime of attempt. Objection that such comment was an incorrect statement of the law was made, it being overruled by the court. The prosecutor then continued discussing the law of attempt, and he informed the jury that the issue was whether the defendant took a substantial step. "The question is not is he dangerously close or almost there — but is this a substantial step?" He later returned to the same point, saying:
"Don't start writing the law in the jury room about substantial step meaning almost there or dangerously close to a fire, or something like that. * * *. Don't start setting standards of law that don't exist."
Turning then to the reasonable-doubt standard, the prosecutor stated:
"What does reasonable doubt mean? You decide what reasonable doubt is. There is no further definition in the law and no attorney can stand up here and say anything more than a reasonable doubt is a doubt that is reasonable. It is not simply any possibility off the wall that is in your mind — your mind — not in mine nor in Mr. Steffen's — yours — it is any doubts that are reasonable. It is the same burden in every criminal case in the history of the United States. There is nothing special or unusual about this case — about this crime — or about Attempt. Beyond a reasonable doubt is the historic burden upon the People throughout our history. It is met every day. Of course, in some cases it is not met and the people are found not guilty, but it is not a burden that is beyond reach — beyond the horizon — beyond the cloud. It is a burden that is and can be met — frequently."
Finally, during rebuttal argument, the prosecutor repeatedly emphasized to the jury that the State's case was "uncontradicted and unrebutted." After so characterizing the case at the outset, the prosecutor then continued:
"All the evidence of the State is concluded. There is nothing in the Defense case contradicting what I presented. This (holding up Property Card) is the sum total — the whole Defendant's case which was provided by the State. It is our Property Card. I told you about it anyway. All our evidence is uncontradicted. You must be — you must decide the case on the evidence — you can't spout out your own theories. You can't create, if you think there are gaps in the evidence. You must be guided by the evidence — all the evidence that is in this case. The evidence presented by the People — uncontradicted, unrebutted."
After almost five hours of deliberations, the jury returned its verdicts of guilty.
At the presentence hearing, the defendant Johnson testified, giving his version of the events of that day. He stated that he had lived with Pankey and had two children by her, those children being the ones present in the house on the day of the disturbance over the gun. He said that he had come to the house the previous night on Pankey's request, after she told him someone had tried to break in. He took his gun to the house, checked the house over and nailed a window shut. He then slept on the couch. In the morning, Pankey began drinking and the two argued, with Johnson leaving. When he returned, Pankey would not let him in to get his gun. He testified that two other people came to the house and they were drinking and clowning around in the presence of the children. He stated that he called police to help him get the gun out of the house, before it fell into wrong hands. He also testified that his loud, threatening talk after police arrived was solely to get Pankey's attention so that she would turn over his gun. He denied any intention to burn the house down. He said he only poured a half a cup of gas and that Pankey saw him doing it. He said he had no way of starting the fire and that he saw his ...