Appeal from the Circuit Court of Madison County; the Hon.
Philip Rarick, Judge, presiding.
JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 12, 1984.
James E. Lippert appeals from his conviction on one count of murder following a bench trial in the circuit court of Madison County. The trial court found that Lippert had set fire to his house knowing that there was a strong probability that the fire would cause death or great bodily harm to his wife, Ruth. During the fire, Ruth died of asphyxia caused by smoke inhalation. Lippert was sentenced to 40 years in prison.
At about 2:30 a.m. on October 28, 1980, fire broke out in the Lippert home. Lippert said he heard the sound of breaking glass and some sort of thumping sound. When he went into the living room he saw flames near the picture window. The house filled with smoke. Lippert returned to the master bedroom he shared with his wife but was unable to find her there. He looked in other rooms and in the garage but did not find her. Lippert left the burning house through the garage.
A neighbor saw the flames and called the fire department at about 2:34 a.m. Deputy Sheriff Gibson was on the scene at 2:39 a.m. He saw Lippert running nude from the garage to the back of the house, where he put a ladder up to the spare room window. Gibson heard Lippert screaming his wife's name and observed that Lippert was visibly upset. Gibson thought Lippert was not dirty from smoke. Shortly after his arrival, Gibson saw flames shooting out of the master bedroom as well as from the living room window.
Volunteer firemen began arriving within five minutes of the first call. They found an unusually hot fire which produced dense smoke and reignited after it had been hosed down, most notably in the living room and stairwell area. Firemen noted that the top of the front door and the top of the door leading to the garage were burned away. After the firemen put a ladder up to the window of the master bedroom, they saw Ruth's body on the bed. When the firemen were finally able to get into the master bedroom, they found the body at an angle on the bed, the detached left foot on the floor next to the bed and the right leg over the edge, with the right foot resting on the floor.
While the firemen struggled with the fire, Deputy Gibson placed Lippert in the police car and covered him with a jacket. Later Lippert was taken to a neighbor's home, where he was given clothes. The neighbors who observed Lippert testified that he was obviously upset, smelled of smoke and was covered with a black film which came off on a washcloth. He was seen coughing and expelling "black stuff" from his mouth. He had first degree burns across his shoulders and back and his hair was singed on top. At the hospital he was treated with oxygen and Valium for smoke inhalation and an anxiety reaction. He refused to be admitted.
Police and fire investigators were notified of the fire very quickly. A police photographer arrived at 3:48 a.m. State Fire Marshal Buxton, East Alton Fire Chief Shewmaker, Deputy Sheriff Crockarell and Alva Busch of the Illinois Department of Law Enforcement conducted the initial investigation of the cause and origin of the fire. Once they were able to view the interior of the house and examine the debris, the investigators quickly concluded that the fire resulted from the deliberate ignition of a flammable liquid which had been poured in the living room, trailed into the fatal bedroom, down the stairs to the basement and over to the door leading to the garage. Buxton ruled out a malfunction in either the electrical or heating system as the cause of the fire. Shortly after 6:35 a.m., the deputies who were interviewing Lippert at the hospital informed him that he was suspected of setting the fire. The sheriff's department already knew that on October 24, 1980, Lippert had been convicted of indecent liberties with a minor and had been released on bond the day before the fire.
Lippert was interviewed several times in the hours immediately after the fire. He denied his own involvement in starting the fire but said to officers as well as to friends that he thought the house had been firebombed by someone seeking revenge in connection with the indecent liberties conviction. Lippert agreed to take a voice stress test as a check on his veracity. At trial, the result of the test was not admitted, but admissions made by Lippert at the time of the testing were ruled admissible. At that time Lippert stated that he had taught chemical and psychological warfare during the 90 days he was in the Air Force, but Air Force records show only that he was honorably discharged as a private first class for medical reasons. In describing his actions during the fire, Lippert said he thought someone, perhaps Ruth, was beside him in the smoke but that the only way out for that person was through an upstairs window because "the fire was coming down [the stairs] behind me." Deputy Sheriff Fischer testified that Lippert described to him the fire "trickling down the stairs * * * following a line down the steps" and so blocking his return to the upper floor of the split level house.
On November 7, 1980, Lippert was indicted on two counts of murder and one count of aggravated arson. Trial was preceded by extensive discovery and vigorous argument of pretrial motions. Of particular concern to the defense was a statement given to the State by Earl Abney, a prisoner who had shared a cell with Lippert on March 11 and 12, 1981. Abney stated that Lippert admitted stuffing rags in the furnace and tampering with the wiring but was confident he had left no incriminating evidence. Abney reported that Lippert talked freely because they were both in jail for indecent liberties with a minor. On May 1, 1981, Lippert filed a motion in limine requesting that the State delete from Abney's statement all references to sex offenses and prevent any reference to such offenses from being made in the presence of the jury.
On May 29, 1981, the court ruled that Abney could not refer to sex offenses in his testimony except when he repeated Lippert's own references to Abney and Lippert having the common experience of being in jail on sex charges. Ruling on other motions, the court ordered the State to refrain from any mention of Lippert's conviction except for impeachment purposes. Lippert was permitted to show that his conviction was on appeal. On June 8, 1981, Lippert waived a jury trial because he thought that the trial court, which had conducted Lippert's previous trial, was best qualified to weigh the prior conviction and to correctly construe Lippert's decision not to testify if he were to make that choice at trial. He also thought the trial court could best evaluate the "highly technical" nature of expert testimony.
Although most of the testimony at trial was that of expert witnesses and was technical in nature, Abney also testified for the State as expected. He stated that Lippert had showed him sketches of the furnace and explained in detail how he had arranged it so that wires would appear to be melted together and there would "be something melted inside [the furnace]." Abney claimed his conscience was shocked by the coldness with which Lippert spoke of killing his wife and going into the obscene picture business. Abney denied that he had made a deal with the prosecution in exchange for his testimony. On cross-examination Abney admitted that he had previously lied in court and had signed false affidavits concerning his own criminal record in order to gain release from jail. During post-trial motions, the court learned that Abney had been placed on probation, which the prosecution explained had occurred because the minor plaintiff in the indecent liberties case against Abney had failed to identify him. Another prisoner, who had been in jail with Lippert in November 1980, a few days after the fire, testified for the State that Lippert drew a rough diagram of the furnace to show how black people had caused the furnace to overheat and catch fire.
The State's case was primarily based on burn patterns observed and interpreted by its expert witnesses. These witnesses testified that fire normally burns up and out from its origin and that it usually burns in a continuous path as it spreads across a surface such as a carpet. In the Lippert house the patterns of burns on the floors and stairs were said to be "spotty" and "erratic," but when viewed altogether they formed a network connecting the master bedroom, living room, and stairs. A deep char at the top of the stairs, isolated from other deep burning, was part of a "sporadic and irregular" pattern of burning on the center of the stair treads. This pattern was considered abnormal because a fire which had begun upstairs would not have moved down except as carried by a fuel source at floor level. A fire which began in the basement should have consumed the entire lower portion of the stairs before the upper stairs were burned. Intermittent burning of the studs supporting the stairs indicated fire traveling up and down the stairs simultaneously. An aluminum door which opened to the outside from the landing of the stairs was melted at both the top and bottom. The top melting was considered the result of normal venting of the fire at the top of an exit. The melted bottom indicated "a very abnormal heat at floor level" in the foyer. The garage door also burned at the bottom.
In the master bedroom the burn patterns were localized in the northwest portion. The burns appeared underneath and on both sides of the bed, which was two or three feet from the west wall with its head against the north wall. Buxton described a heavy irregular burn around the north vent on the west wall, although he conceded that photographs showed unconsumed carpet in the area where he thought accelerant had been poured. He also described a crescent-shaped burn beneath the bed as the possible result of a sloshing action with a gas can which itself would not fit under the bedframe. While one expert testified that low burning along the north wall had not entirely consumed the baseboard and carpet at floor level, another expert pointed out that the paneling on the northwest corner of the master bedroom was burned away above a line level with the mattress, indicating to him that the fire emanated from the surface of the bed. The bedroom ceiling showed the same localized burning in the northwest portion of the room as the burn patterns on the floor. The paneling on the east wall above a heat duct showed no sign of an open flame venting through the duct although the wall showed the effects of great heat in the room.
The State's witnesses pointed out that the burns were not only irregularly placed but also unexpectedly deep in certain spots. The most severely burned areas upstairs were the west wall of the bedroom near floor level, that is, within two or three feet of the body, and the area in the living room along or near the west wall where there was a picture window. The State's experts considered it important that the burn in the living room consumed the carpet and padding and penetrated the wood flooring, since deep burning could indicate accelerant holding the heat to the floor. Buxton explained that a burning chair could also create deep burns by holding heat to the floor. Charring beneath a living room bookcase, not attributable to burning furniture, was also offered as evidence of a liquid accelerant. The vertical supports and the underside of the stairwell were heavily and regularly charred, evidence that a hot, fast fire had sprung up from floor level in the basement and burned up the stairwell, fed by the natural flue effect of the stairs as well as by household items stored beneath the stairs. Buxton pointed out that the accelerant could have been poured beneath the steps or could have dripped through the stairs from above. He also testified that gasoline vapors which feed a fire are heavier than air and accumulate in low places such as stairwells, heating ducts, or surface depressions.
The State's experts considered two small areas of broken concrete floor in the basement indicative of pooled liquid burning for an extended period. This breaking of the concrete, called spalling, is caused by the expansion of water vapor within the concrete when heat is held against the surface. The State did not determine that the points of spalling were in fact low spots in the concrete; a defense expert testified that water drained away from the spalls. The defense also countered with a learned treatise which stated that spalling was often erroneously taken as the sign ...