Appeal from the Circuit Court of Livingston County; the Hon.
William M. Roberts, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
After a jury trial, the defendant was found guilty of residential burglary (theft), residential burglary (felony arson), and arson (Ill. Rev. Stat. 1981, ch. 38, pars. 19-3, 20-1). Judgment was entered on the residential burglary (theft) and arson counts. Defendant was sentenced to concurrent terms, 15 years for residential burglary and an extended term of 14 years for arson. He appeals from the judgment of the circuit court of Livingston County. We affirm.
Defendant raises four issues on appeal: (1) whether he was denied a fair trial because his case was not transferred to a judge outside the 11th judicial circuit; (2) whether he was proved guilty beyond a reasonable doubt of arson; and (3) whether the trial judge abused his discretion in sentencing the defendant to an extended term of 14 years for arson by failing to consider defendant's low level involvement in the offense — particularly where co-defendant Turner was charged with but not prosecuted for the arson — and his youthful age; and (4) in sentencing defendant to 15 years for residential burglary by using the damages caused by the arson to aggravate the sentence for both that offense and the residential burglary, thereby punishing him twice for the same offense in violation of the double jeopardy clause of the constitution.
As the parties are familiar with the facts of this cause, they are referred to herein only to the extent necessary to this disposition. The evidence adduced at trial tended to show that on or about March 13, 1983, defendant Curtiss and co-defendant Turner (not party to this appeal) entered the residence of Jerome Pearre, which was then consumed by fire that same date. The Pearres are the mother- and father-in-law of Judge Glennon, a circuit judge of the 11th judicial circuit. According to the presentencing report and trial evidence, financial losses resulting from the fire were as follows: $171,000 (dwelling), $5,375 (cost of demolition), $120,000 (contents, books), and $12,000 (silver). The victims' losses not covered by insurance were $53,500 (dwelling), $66,500 (contents), and $11,000 (silver).
Before trial, defendant filed a motion for substitution for Livingston County Judge William Caisley, alleged to be a friend of Judge Glennon. The motion was heard and allowed by Livingston County Judge Frank, who sent the matter back to chief circuit Judge McCullough for reassignment. Judge Frank's letter to Judge McCullough mentioned by postscript that defendant's counsel had requested that the case be assigned to a judge outside the 11th judicial circuit. The matter was set for and heard by Judge William Roberts of the 11th judicial circuit.
Defendant testified at trial that on the night of March 12, 1983, he and co-defendant Turner embarked upon a night's drinking, going to several bars and consuming shots of bourbon and peppermint schnapps with beer chasers. After the bar closed, defendant and Turner proceeded to a 24-hour grocery to purchase beer in addition to the four cans they had. They were unable to buy the beer because it was after 1 a.m. They purchased some cigarettes and hung around the store until an employee called the police to assist them in leaving the premises. Defendant and Turner walked over to a nearby garage, owned by the Pearres, and sat down to drink a beer and watch the police. They then realized that there was no car in the garage and went to the front of the house where they discovered newspapers laying on the porch. They decided to break in. Once inside, they forced the lock on a door in the kitchen and removed the victims' silver in pillow cases. They discovered cases of liquor in the basement and placed three outside the basement door with the silver. They also removed a television and stereo components. They began relocating items placed at the basement door to an alley about a block away. Defendant recovered his cigarettes and lighter, stashed beneath a birdbath near the Pearres' house, so as not to lose them if he had to make a speedy escape. According to defendant's testimony, Turner told him he was going to set the house on fire to get rid of evidence of the burglary. Defendant told Turner not to do that and then took leave of him, going to dump his gloves into a nearby Salvation Army donation box. As he turned back toward the house, he saw Turner running and the house afire. He retired with Turner to a friend's house, where they slept.
Defendant acknowledged that when questioned by the police on March 13, 1983, he had denied knowledge of the fire or a silver watch, stolen from the residence and recovered by the police. Defendant and his cohorts thereupon proceeded to pawn the silver at various places in Illinois and Iowa. With the funds so gained, they flew to Virginia and then went to Florida, where they ran out of money. They committed another burglary and were apprehended. Defendant then spoke to Illinois authorities by telephone and admitted burglarizing the Pearre residence but denied setting the fire.
Several witnesses testified in defendant's behalf that, during incarceration with co-defendant Turner, Turner told them something to the effect that he had burned the house of a judge or a judge's relatives. One of the witnesses acknowledged that after he became more acquainted with Turner, Turner told him that defendant had actually set the fire.
• 1 Defendant first argues that he was deprived of a fair trial because his request that the case be transferred to a judge outside the 11th judicial circuit was not honored. Defendant's motion for substitution of judge was heard and granted as an automatic substitution within 10 days of assignment. Defendant thereafter proceeded to trial before Judge Roberts. He now argues that the failure to honor his "request" constitutes reversible error.
Section 114-5 of the Code of Criminal Procedure of 1963 provides in pertinent part:
"Substitution of Judge. (a) Within 10 days after a cause involving only one defendant has been placed on the trial call of a judge the defendant may move the court in writing for a substitution of that judge on the ground that such judge is so prejudiced against him that he cannot receive a fair trial. Upon the filing of such a motion the court shall proceed no further in the cause but shall transfer it to another judge not named in the motion. The defendant may name only one judge as prejudiced, pursuant to this subsection; * * *
(c) In addition to the provisions of subsections (a) * * * of this Section any defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion a hearing shall be conducted as soon as possible after its filing by a judge not named in the motion; provided, however, that the judge named in the motion need not testify, but may submit an affidavit if the judge wishes. If the motion is allowed, the case shall be assigned to a judge not named in the motion. If the motion is denied the case shall be assigned back to the judge named in the motion." (Ill. Rev. Stat. 1981, ch. 38, par. 114-5.)
In examining the record, we find no motion or affidavit as to the prejudice of any judge but Judge Caisley. If any record was made of the hearing of September 19, 1983, on defendant's motion for substitution of a judge, it has not been made part of the record on appeal. Neither has the defendant provided a bystander's report of the hearing as provided by Supreme Court Rule 323(c) (87 Ill.2d R. 323(c)). We are therefore unable to determine whether the "request" was supported by specific allegations of prejudice as to each judge in the circuit — as opposed to a general allegation of prejudice (People ex rel. Kunce v. Hogan (1977), 67 Ill.2d 55, 364 N.E.2d 50, cert. denied (1978), 434 U.S. 1023, 54 L.Ed.2d 771, 98 S.Ct. 750) — or whether the prosecutor had opportunity to address such a request. It is the duty of the appellant to insure a sufficient record of proceedings so as to show any error on which he wishes to appeal. We note that a previous defense motion for substitution of judge had been heard by Judge Caisley on September 1, 1983, whereupon defendant inquired whether Judge Roberts had been hearing some cases and was advised that the chief judge had assigned Judge Roberts cases when a motion for substitution had been granted. Further, as defendant was willing to proceed to trial before Judge Roberts, we may regard this issue as waived. (People v. Bach (1979), 74 Ill. App.3d 893, 393 N.E.2d 563.) In any event, upon our reading of the record we conclude that defendant received a fair and impartial trial.
• 2 Defendant next urges that he was not proved guilty beyond a reasonable doubt of arson — on a theory that the arson was an offense separate and distinct from the burglary in which he was involved — and that he had sufficiently withdrawn from that ...