Appeal from the Circuit Court of McDonough County; the Hon.
Charles Wilhelm, Judge, presiding.
JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:
This matter involves a fire at the Zeisler residence which left Betty Zeisler severely burned over three-quarters of her body. As a result, Betty's husband, Lester Zeisler, was charged by information with two offenses: (1) attempt murder (Ill. Rev. Stat. 1979, ch. 38, pars. 8-4(a), 9-1(a)(1)); and (2) aggravated arson (Ill. Rev. Stat. 1979, ch. 38, par. 20-1.1). Following a jury trial, Lester Zeisler was acquitted of attempt murder but convicted of aggravated arson. The trial court sentenced him to a term of 30 years of imprisonment. Mr. Zeisler now appeals.
In addition to other pretrial motions, Zeisler filed a motion to suppress the results of the arson investigation conducted by Deputy Fire Marshal Hollis Miller. The motion alleged that Miller illegally searched Zeisler's property initially without a warrant and that the search warrant he ultimately secured was based on information obtained during the prior illegal search. After a hearing on the motion, the trial court denied Zeisler's motion and refused to suppress the evidence. The trial court found the search reasonable and cited an Illinois statute which provided for investigation of fires for cause determination by municipality fire chiefs and the State Fire Marshal.
A jury trial was held on October 26 through October 30, 1981. During the first two days, the State put on 18 witnesses.
Evidence adduced by the State at the trial established that on the afternoon and evening of June 30, 1981, Lester Zeisler and his wife, Betty, were patrons of several local taverns. At times they were together, but generally they drank with separate groups of persons at different places. At around 10:30 p.m., Betty Zeisler came into Larry's Longshot tavern in Bushnell and socialized until approximately midnight when the tavern closed. Lester Zeisler was not with her at the tavern between 10:30 p.m. and midnight. In the bartender's opinion, Betty was not intoxicated when she left the tavern alone at midnight. Around 12:30 a.m., several neighbors observed smoke coming from the second floor of the Zeisler apartment. The neighbors called the fire department. Although the neighbors knocked loudly on the door to the apartment, no one responded although they heard a noise like a "thud" from the inside. The neighbors then tried to enter the apartment but found the door locked.
The police and fire department arrived shortly thereafter. Earl Niestradt, fire chief of Bushnell, testified that when he arrived at the Zeisler apartment around 12:30 a.m., firemen were already on the scene. Niestradt entered the fire-filled apartment and removed the badly burned body of Betty Zeisler. It took approximately 20 minutes to get the major portion of the fire under control. The firemen then waited until the smoke cleared before fighting the rest of the fire. Towards the end of the fire fight, but before the fire was out, Niestradt examined the premises to determine the cause and origin of the fire. After deciding that he was not able to determine the cause and origin, he decided to call the Deputy State Fire Marshal for assistance in the morning.
The police and firemen remained at the Zeisler apartment and, at around 1:45 a.m., Lester Zeisler returned home. A policeman on the scene informed Zeisler that his wife, Betty, had been hurt fairly badly. The policeman reported that Zeisler, who was "cocky and drunk," snickered and said, "Oh, really."
In the interim, Betty Zeisler was taken to the McDonough District Hospital. She arrived in the emergency room around 1:45 a.m. According to the attending physician, Mrs. Zeisler had severe burns over 80% of her body and was in great pain and in shock. Emergency procedures were undertaken. Because of her condition, Mrs. Zeisler was transferred to the Springfield Burn Center in Springfield, Illinois.
Fire chief Niestradt telephoned Lewis Ellis, the Deputy Fire Marshal from Good Hope at about 6:30 a.m. that morning, July 1, 1981. Niestradt told him of the Zeisler fire earlier that morning, that he was unable to determine the cause and origin of the fire and would like to have some help. Ellis told Niestradt that a fire investigator would arrive to assist with the investigation around noon. Niestradt testified that he did not suspect arson at the time he called Ellis.
State Fire Investigator Hollis Miller arrived at Niestradt's office at noon and both left immediately for the fire-destroyed Zeisler residence. There they walked around the outside of the premises. Upon Miller's suggestion, they drove 16 miles to the State's Attorney's Office in Macomb, Illinois, to get a search warrant. They were told that no search warrant was needed so they then returned to the Zeisler residence in Bushnell. They then entered the premises for the purpose of determining the cause and origin of the fire. Miller took some photographs and cleared away some debris on the kitchen floor. Miller observed definite pour and burn patterns in the kitchen. In Miller's opinion, these were clear evidence that the fire was incendiary or man-made in origin. They clearly rebuffed any notion that the fire was accidental. Accordingly, Miller believed a search warrant was needed to search for accelerants, accelerant containers and other evidence of aggravated arson. Both men proceeded to Macomb and obtained a search warrant. Upon returning to Bushnell, Miller took more photographs, removed tile in the kitchen and front room, and examined the kitchen area, the furnace, the washer and dryer.
The foregoing testimony from the State's witnesses was adduced on the first two days of trial. On the third day of trial, the court convened at the auditorium of the Memorial Medical Center in Springfield, Illinois, to hear the testimony of Betty Zeisler. At that time she was still a patient at the hospital, recovering from injuries sustained in the fire.
The State had previously filed a motion to take the extraterritorial testimony of Betty Zeisler in Springfield. Mr. Zeisler vigorously objected to the State's motion. A hearing on the motion was held. Betty Zeisler's physician testified that she had been burned over 75% of her body, had endured repeated skin grafts and had 10 digital amputations. In the doctor's opinion, transporting Mrs. Zeisler 85 miles from Springfield to Macomb for the trial would be detrimental to the healing process although it would not be life-threatening. At the conclusion of the testimony and argument of both sides, the trial court granted the State's motion.
Accordingly, the jurors were taken by bus to Springfield to listen to the testimony of Betty Zeisler. The proceedings took place at the Memorial Medical Center in a recreation therapy room measuring 1,000 square feet. An area was specifically set aside in the room for the public and press.
Mrs. Zeisler testified that on the day preceding the fire she and her husband, Lester Zeisler, went to a local gasoline station and purchased some gasoline in a can. Mr. Zeisler wanted the gasoline to mow his mother's yard. Although he did not mow the grass that day, Mrs. Zeisler is unsure what her husband did with the gasoline can. Mrs. Zeisler went to Larry's Longshot tavern that evening from about 10 p.m. to 11:45 p.m. She then walked home and dozed off on the couch in the living room. Lester came home a little later and wanted something to eat. He then picked up a skillet, tried to hit her with it, then threw it on the floor. Zeisler then hit his wife with his fist, knocking her to the floor. The next thing Mrs. Zeisler remembers is having fire all around her. She recalls her body on fire. Her husband Lester stood over her and said, "Burn, bitch, burn." Lester then dragged her into the living room and locked the door as he left the apartment.
On cross-examination, Mrs. Zeisler admitted that she had been in and out of bars during the afternoon preceding the fire on June 30. She had an argument with Lester that afternoon, asked him for a divorce and ran away from him. Mrs. Zeisler was upset with Lester because of his seeing Peggy Wishon, who was the wife of her brother Earl. She did not think that she was drunk when she walked home from the tavern around midnight that ...