Appeal from the Circuit Court of Kane County; the Hon. Paul W.
Schnake, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Defendant, Steven E. Schwartz, was charged by indictment with two counts of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1)), aggravated arson (Ill. Rev. Stat. 1981, ch. 38, par. 20-1.1(a)(3)), and arson (Ill. Rev. Stat. 1981, ch. 38, par. 20-1(a)), and, following a jury trial, was found not guilty by reason of insanity of murder, and guilty but mentally ill of both aggravated arson and arson. Defendant was sentenced to a 14-year term of imprisonment for aggravated arson to be served concurrently with a five-year term of imprisonment imposed for arson. Defendant was remanded to the Department of Corrections for imprisonment after he was found not to be in need of in-patient mental health services by the Department of Mental Health and Developmental Disabilities following the verdict of not guilty of murder by reason of insanity. Ill. Rev. Stat. 1983, ch. 38, par. 1005-2-4.
Defendant raises four issues for our review: (1) whether the trial court's finding that defendant's amnesia as to the events on the day of the offenses did not preclude him from effectively establishing the defense of insanity so that he was fit to stand trial, was error; (2) whether the defendant's conviction for aggravated arson must be reversed under our decision in People v. Wick (1984), 121 Ill. App.3d 94, 458 N.E.2d 1387, which declared unconstitutional the same subsection of the aggravated arson statute under which defendant was convicted here; (3) whether the State failed to prove beyond a reasonable doubt that defendant was sane when he started the fire so that his conviction for aggravated arson and arson must be reversed; and (4) whether defendant's conviction for arson must be vacated if this court affirms his conviction for aggravated arson, as the two offenses are based on the same conduct.
It is only necessary to set forth the proceedings below relevant to the issues raised on appeal. Prior to trial, defendant requested and was granted a hearing to determine his fitness to stand trial pursuant to section 104-11 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 104-11). Dr. Lyle Rossiter, a psychiatrist, called by the defendant, testified that defendant was not able to recount from his own recollection what had occurred on the day of the offenses, April 19, 1982, because defendant was suffering from psychogenic amnesia which, in his opinion, was not fabricated. It was his further opinion that the amnesia would hamper defendant's ability to confer with his counsel, defend himself, and receive a fair trial. However, Rossiter also testified that defendant was entirely lucid on what his lawyer was trying to do for him, understood the proceedings against him, and could effectively communicate with his counsel and make trial decisions, but could not assist in his defense during the amnesiac period. Defendant's amnesia could possibly be removed by clinical hypnosis or by administering sodium amytal. The only other witness to testify, a police officer who arrived at the shooting scene, stated defendant repeated the name "Tio" several times after being asked who he had shot. At that time, defendant was suffering from a self-inflicted gunshot wound.
The trial court, after concluding that there was no authority holding a defendant incompetent to stand trial solely on the basis of amnesia, found defendant fit to stand trial. The court below also rejected defendant's subsequent reassertions of this issue made during trial and after trial.
The relevant evidence adduced at the jury trial is summarized as follows.
Carpentersville police officer Marcia Davis testified that on April 19, 1982, she responded to a dispatch concerning a fire at defendant's residence located at 96 Wren Road, Carpentersville. When she arrived at the scene, she observed no signs of forced entry into the house. Two firefighters entered the residence and while they were inside, the house exploded. Davis noted that both firefighters sustained injuries as a result of the fire and were transported to a nearby hospital for treatment. Davis also related that several weeks earlier, on approximately March 8, 1982, she spoke to defendant concerning his fears that Raul Tio, his wife's boyfriend, was going to leave the State with his wife Kathy and their four children and that defendant appeared emotionally upset about this problem.
Carpentersville fire department captain Steve Zaccard testified that he investigated the 96 Wren Road fire on April 19, 1982, to determine its origin and cause. Upon examining the premises, Zaccard found the stove pulled away from the wall in the kitchen, the flexible natural gas line disconnected, and a pair of vice grips on the floor. In another bedroom, he found a dead dog, which had apparently been shot and placed on a bunk bed. Zaccard noted that in his opinion, a fire was intentionally started in the rear master bedroom and had met with gas leaking from the kitchen gas line, which had been intentionally left open, resulting in the fire and explosion. Zaccard further stated that a volunteer fireman would be trained on the effect of natural gas on a house fire, that he knew defendant through defendant's participation as a volunteer fireman, and that he knew defendant to be an extremely family-oriented guy.
Marc's Big Boy Restaurant hostess Grace Gifford Turner and waitresses Patricia Walper and Linda Lipowski testified that sometime between 11 a.m. and noon, on April 19, 1982, a man carrying a shotgun, who they recognized as their co-worker Kathy's husband, defendant, and saw driving around the parking lot one hour earlier, enter the premises carrying a shotgun. Defendant told Turner not to move, and proceeded into the kitchen, where he fired two shots at Raul Tio, the store manager. Tio did not normally work that day, but was filling in for a cook. Defendant then walked out of the restaurant calmly and at a normal pace. After defendant left the premises, Tio was found dead on the kitchen floor. Their testimony also indicated that about a month earlier defendant came into the restaurant and asked who was the store manager, what he looked like, and where he lived, and also stated "that man ruined 10 years of my marriage."
Carpentersville police officer Robert Stakes testified that on April 19, 1982, between 11 and 11:30 a.m., he responded to a dispatch concerning a shooting at the Big Boy. Stakes searched the woods across the street from the restaurant and saw defendant, who he recognized from high school as Steve Schwartz, lying on the ground with a shotgun wound in his left chest. Stakes stated that he recovered several items from defendant's possession, including clothing, jewelry, photographs, defendant's marriage license, and a love letter written by defendant's wife to Raul Tio. The officer also related that he had a conversation with defendant several months earlier in which defendant appeared upset.
In addition to the above occurrence testimony, both sides presented substantial evidence concerning the events preceding the fire and shooting. Defendant's ex-wife, Kathy Schwartz, testified that she lived with defendant and their four children at the 96 Wren Road address until March 6, 1982, when she and the children moved out, following an argument with defendant. During the argument, defendant held a knife to his chest and threatened to kill himself and Kathy. As a result, Kathy called the police. Kathy also related that after filing for a divorce from defendant, she occasionally drove by the 96 Wren Road residence, sometimes alone and sometimes accompanied by her four daughters and/or Raul Tio, and kept a diary on what she observed. Kathy first became acquainted with Raul Tio when he was hired as manager of the restaurant and they became very good friends; however, she denied having an affair with him. When confronted with several love letters to Tio, found in defendant's possession, Kathy admitted that she had written them.
Michelle Tio, the decedent's wife, testified that she first met defendant in March 1982, and spoke to him about Raul and Kathy. Defendant told her he did not want his wife to have anything, and that he was going to blow up his house so Raul and Kathy would get what they deserved. She also stated that defendant was very upset about the whole situation.
Thomas Whitaker, a close friend of defendant, testified that he talked to defendant on various occasions concerning his pending divorce and Kathy's affair with Raul. As the divorce drew near, defendant became more upset because of his fears about the future of his children. Approximately two weeks prior to April 19, 1982, defendant told Whitaker that things were looking good in court and that he might get custody of the children and the marital home, but that he was concerned about being a good father to his children. Whitaker related that while under the influence of alcohol, defendant said he thought about blowing up his house by natural gas explosion and moving to California with his dog. Whitaker also stated that at times defendant appeared irrational, confused and would vacillate between ideas.
Daniel Schwartz, defendant's brother, testified that after Kathy and the children moved out, he moved in with defendant because his brother appeared very nervous and upset. Daniel saw Kathy, Tio and the children drive by the defendant's house on several occasions, and defendant would get upset when this happened. Daniel also stated that defendant carried Kathy's letter to Tio with him at all times and would read it repeatedly every other night. After reading the letter, defendant would get sad and depressed, and was in tears on one occasion. Daniel last saw defendant at their mother's home the day before the incident, and defendant told him that Kathy would not let him have the kids for the ...