Appeal from the Circuit Court of Cook County; the Hon. Frank
B. Machala, Judge, presiding.
PRESIDING JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:
Defendant, Pascual Bonilla, was charged with murder, aggravated arson, and arson. A jury found him guilty of murder and arson, and the trial court sentenced him to 25 to 75 years for murder, and to five to 15 years for arson, the sentences to run concurrently. On appeal defendant contends that the trial court erred in not permitting him to present evidence that a third party admitted setting the fire; that improper comments by the prosecutor during closing argument deprived defendant of a fair trial; and that the trial court erred in refusing to discharge the jury and to conduct a hearing regarding the prosecutor's exercise of peremptory challenges to exclude black and hispanic persons from the jury.
On January 21, 1977, at approximately 6 a.m., a fire occurred in a four-story apartment building located at 3734-36 North Pine Grove in Chicago. As a result of the fire, Julia Miller, 78 years old, died, and several other residents were hospitalized. The fire began on the fourth floor of the building when a couch was ignited in apartment 415.
A police officer and an assistant State's Attorney testified that on May 22, 1978, defendant orally confessed to setting the fatal fire. Lenore Nardelle testified for the State that at the time of the fire defendant and she shared a second-story apartment in the building in question. In the midst of an argument during which defendant was striking her, he stated that he wanted to set a fire. Defendant forced Nardelle to the fourth floor, where he pushed his way into an apartment and set a couch on fire with matches. Defendant dragged Nardelle across the hall where he set a fire in another apartment. They left the building and drove around for awhile. When they returned, Nardelle watched the fire from the street while defendant reentered the building.
After the fire, defendant and Nardelle moved in with her parents and continued to live together. He struck her many times, and she was always in fear of him. When he struck her on May 21, 1978, she told her father, who called the police. Defendant was arrested for disorderly conduct, and the subsequent investigation implicated him in the fire.
Defendant initially contends that the trial court erred in not permitting him to present evidence that a third party admitted setting the fire. After a pretrial hearing, the trial court granted the State's motion to exclude evidence relating to a Ralph McNamara and his admission that he had set the fire.
On the day of the fire, police questioned McNamara, a resident, as he left the building. McNamara told the police that he started the fire, but then denied doing so. McNamara, whose answers were rambling and nonsensical, appeared to be mentally retarded. McNamara had been arrested the previous day for striking another resident, and his many previous arrests had been for battery and resisting arrest. The police did not charge McNamara with the crime here because there was no evidence involving him. Defendant did not subpoena McNamara as a witness.
• 1, 2 Generally, the extra-judicial declarations of a third party, not made under oath, that he committed the crime, are purely hearsay, and even though they are declarations against interest, are inadmissible. (People v. Craven (1973), 54 Ill.2d 419, 299 N.E.2d 1.) The rule should be departed from only when the hearsay declaration was made spontaneously to a close acquaintance; was corroborated by other evidence; was self-incriminatory and against the declarant's interest; and the declarant was present in the courtroom, under oath, ready to be cross-examined. (Chambers v. Mississippi (1973), 410 U.S. 284, 35 L.Ed.2d 297, 93 S.Ct. 1038; People v. Craven.) McNamara's statement was not made to a close acquaintance, and he was not in court ready to be cross-examined. Moreover, his statement received corroboration only from the flimsiest of circumstances. He had matches on his person and smelled of smoke as he left the burning building. The trial court correctly refused to allow defendant to offer evidence of McNamara's admission.
Defendant also contends that certain remarks of the prosecutors during closing arguments deprived him of a fair trial. We shall comment only on those remarks to which defendant offered objections at trial. People v. Beto (1980), 86 Ill. App.3d 622, 408 N.E.2d 293.
• 3 Citing three remarks, defendant argues that the prosecutors improperly commented on his failure to testify. Defendant misconstrues the first such comment where the prosecutor merely stated that the testimony of a character witness did not present a defense. The second comment complained of was the prosecutor's direct response to a remark by defense counsel who stated that the State had not called any witnesses from the building or from the fire department. The prosecutor properly replied that defendant could have called any of these people as witnesses. Even if the comment was improper, the trial court sustained defendant's objection to the remark. The third comment complained of by defendant arose out of defense counsel's statement that defendant had told the jury that he did not commit the crime by virtue of his plea of not guilty to the charges. During rebuttal, in commenting on defense counsel's statement, the prosecutor stated that she had not heard defendant say anything. While we reject the State's argument that it was invited comment, the remark was not emphasized and it certainly did not constitute prejudicial error.
• 4 Defendant also complains that the prosecutor misstated the burden of proof by stating that to acquit defendant, the jury would have to find that every State witness was lying. We find no such comment in the record. In his argument, defense counsel focused on the fact that people in power, including the police officer and prosecutor, had brought the charges against defendant and that people in power frequently told lies. The prosecutor replied that the thrust of defendant's argument was that the case was a big lie and that everyone, including the police officers and prosecutors, were liars. The comments were invited by defense counsel and were not improper.
• 5 Defendant also urges that the prosecutor's comments about the deceased's age and manner of death were improper. These remarks, based on facts in evidence and reasonable inferences, were proper. Our review of the entire closing argument convinces us that defendant was not deprived of a fair trial by any comments of the prosecutor.
• 6, 7 Defendant finally contends that the trial court erred in refusing to discharge the jury and to conduct a hearing regarding the prosecutor's exercise of peremptory challenges to exclude black and hispanic persons from the jury.
Our supreme court has recently considered and rejected precisely the same issue. (People v. Williams (1983), 97 Ill.2d 252; People v. Davis (1983), 95 Ill.2d 1.) In those cases, relying on Swain v. Alabama (1965), 380 U.S. 202, 13 L.Ed.2d 759, 85 S.Ct. 824, the court ruled that, in a particular case, the prosecutor may constitutionally exercise peremptory challenges to eliminate black and hispanic persons from the jury. In Williams the court cited with approval People v. McCray (1982), 57 N.Y.2d 542, 457 N.Y.S.2d 441, 443 N.E.2d 915, which, in holding Swain was not effected by Taylor v. Louisiana (1975), 419 U.S. 522, 42 L.Ed.2d 690, 95 S.Ct. 692, emphasized the distinction between the jury pool and the jury actually selected. Distinctive ...