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People v. Palmer

OPINION FILED FEBRUARY 27, 1986.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

WALTER PALMER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Michael P. Toomin, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Defendant, Walter Palmer, was convicted of aggravated arson (Ill. Rev. Stat. 1983, ch. 38, pars. 20-1.1(a)(1), (3)) and aggravated battery (Ill. Rev. Stat. 1983, ch. 38, par. 12-4(a)), following a bench trial in the circuit court of Cook County. On appeal, defendant contends that (1) section 20-1.1(a)(1) of the Criminal Code of 1961 is unconstitutional and (2) the trial court abused its discretion by allowing his attorney to represent him while under a per se conflict of interest, thus depriving him of his right to effective assistance of counsel.

We reverse and remand.

Testimony at trial adduced the following facts. Defendant and his wife, Diana Palmer, lived in an apartment at 717 Seward, Evanston. They fought on the evening of August 26, 1983. Although they disagree as to the reasons for and extent of the fight, they agree that defendant struck his wife several times. Diana received a cut lip, bruises to her chest and stomach, and injury to a tooth. Police took her to the hospital, where she received three stitches to close the cut on her lip. After leaving the hospital, Diana spent the remainder of the night with a neighbor. After the fight, defendant left the apartment and spent the night sleeping in his car parked in front of a friend's place of employment. At approximately 8:30 the following evening (August 27), Diana returned to her apartment for a few minutes and then left to return to her neighbor's apartment.

The record further shows that a fire occurred in the Palmers' apartment building on the night of August 27 at approximately 10:15. Four Evanston fire fighters were injured while extinguishing the blaze. An investigator for the Evanston fire department determined that the fire began in defendant's apartment. He further determined that the fire was neither natural nor accidental; rather, an incendiary caused it. Evanston police arrested defendant on August 28, 1983, on charges of aggravated arson and aggravated battery.

The bench trial began on February 6, 1984. The record shows that before trial began, defendant's attorney, Neil Kauffman, asked leave to withdraw as defense counsel due to a conflict of interest. He explained to the court that Diana, who retained him as defendant's attorney, was the complaining witness and a potential State's witness against defendant. Kauffman further explained that defendant believed that Kauffman would not represent defendant adequately because Kauffman had only received a portion of the fee upon which he and Diana had agreed. Defendant himself repeated Kauffman's concerns to the court and stated that he did not want Kauffman to represent him.

The trial court denied Kauffman's motion to withdraw, ruling that Kauffman would adequately represent defendant with the amount of money that Diana had paid him. The court ruled also that no conflict of interest existed in Kauffman's representation of defendant. Following trial, on February 10, 1984, the court found defendant guilty as charged and sentenced him to four concurrent 30-year prison terms for the aggravated arson under section 20-1.1(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 20-1.1(a)(3)) and a 30-year term for the aggravated arson under subsection (a)(1) of the statute, the sentences under subsections (a)(1) and (a)(3) to run concurrently. The trial court further sentenced defendant to a five-year term for aggravated battery, to run consecutively with his sentences for aggravated arson, for a total of 35 years. Defendant appeals.

I

Defendant first contends that we should reverse his convictions and sentences of four concurrent 30-year terms under section 20-1.1(a)(3) of the Criminal Code of 1961 because the Illinois Supreme Court declared it unconstitutional in People v. Wick (1985), 107 Ill.2d 62, 481 N.E.2d 676.

Arson is a Class 2 felony that is defined in section 20-1 of the Code as follows:

"Sec. 20-1. Arson. A person commits arson when, by means of fire or explosive, he knowingly:

(a) Damages any real property, or any personal property having a value of $150 or more, of another without his consent; or

(b) With intent to defraud an insurer, damages any property or any personal property having a value of $150 or more.

Property `of another' means a building or other property, whether real or personal, in which a person other than the offender has an interest which the offender has no authority to defeat or impair, even though the offender may also have an interest in ...


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