Appeal from the Circuit Court of Cook County; the Hon.
Lawrence Passarella, Judge, presiding.
JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Defendants, Terry and Sylvester Dukes, were jointly tried before a jury in the circuit court of Cook County and convicted of arson (Ill. Rev. Stat. 1981, ch. 38, par. 20-1) and aggravated arson (Ill. Rev. Stat. 1981, ch. 38, par. 20-1.1(a)(1)). The trial judge entered judgment on the convictions and imposed on each defendant concurrent sentences of three years in the penitentiary for the arson conviction and six years for the aggravated-arson conviction. Defendants appeal, contending that (1) the State did not prove them guilty of arson and aggravated arson beyond a reasonable doubt, (2) the subsection of the aggravated-arson statute under which they were convicted is unconstitutional, (3) the improper admission of evidence probative of the aggravated-arson charge prejudiced their trial, and (4) they received ineffective assistance of counsel.
We affirm in part and reverse in part.
According to the testimony at trial, a fire occurred at 1501 South Karlov Avenue, in Chicago, on October 20, 1983, at approximately 4:30 a.m. Firemen extinguished the fire within 20 minutes of their arrival. The damage was slight and confined to the outside foyer area, the front door, and an inside wall of the building. Bruce McElrath, a Chicago police department detective, examined the building on the morning in question and concluded that the fire started at the front door of the building and that it was caused by someone throwing a molotov cocktail at the door.
The record shows that Detective McElrath found the remains of a glass bottle, a burnt wick and an unbroken bottle containing flammable liquid in the building's outside foyer. He was unable to obtain fingerprints from these objects. A police chemist tested the liquid and concluded that it was gasoline.
Jerry Brown is the owner of the subject building. The two-story structure contains two apartments with a gameroom and storeroom on the first floor, front; Brown occupies the first-floor apartment in the rear. Brown clashed with defendants on several occasions prior to the fire. On one occasion, September 27, 1983, he had ejected Sylvester from his gameroom for beating a woman who was holding an infant. Because Sylvester continued to attack the woman on the street outside of the gameroom, Brown asked him to leave the front of his building. Sylvester and another person then fought with Brown. On another occasion, October 11, 1983, Brown, standing at the front window of the gameroom and looking out at the street where his station wagon was parked, saw Terry approach the automobile and throw a stone, breaking the car window. Finally, on October 19, 1983, at approximately 9:45 p.m., hours before the fire, Brown was driving toward his garage to park his car. As he approached the garage, he saw Sylvester crouching behind the garage, lighting something. Sylvester fled when he saw Brown's automobile.
Minnie Williams lived in the upstairs apartment of the building. On October 20, 1983, at approximately 4:30 a.m., she was sitting at the window of her apartment, smoking a cigarette. Williams was awake at that hour because she prepared lunch for a friend at 5 a.m. While sitting at the window, she heard a loud noise and saw the reflection of flames against a large tree in front of the building. She went to another window in her apartment, raised it, and looked out. She saw the flames; both defendants were standing next to a street-light for two or three seconds before they ran away.
Williams saw both defendants everyday and was acquainted with them. She identified defendants in court as the two men she saw on the morning of the fire. Williams, however, did not see them throw anything at the building or start a fire; she did not see anything in their hands. Williams called the fire department. Thereafter, she awakened her children and led them out of the building; she also awakened Brown.
Detective McElrath interviewed Williams shortly after the firemen extinguished the fire and she had returned her children to their apartment. She told him everything she had seen and heard and whom she had seen that morning. McElrath and Officer Taylor, also of the Chicago police department, interviewed Brown.
Based on his interview with Williams, McElrath arrested defendants at approximately 5 a.m. Brown led McElrath and Taylor to defendants' residence at 1330 South Kedvale Avenue, in a second-floor apartment. After a member of defendants' family admitted McElrath to the apartment, he went to defendants' bedroom. Defendants were in bed, undressed. McElrath, however, believed them to be alert after he awakened them. McElrath sniffed their hands and clothing; he detected no odor of gasoline.
Defendants' two sisters and their mother all testified that they saw defendants sleeping in their bedroom on the morning of the fire. Sylvester testified in his own behalf, stating that he arrived home at approximately 11:30 p.m. on October 19 and went directly to bed. He further stated that his brother, Terry, was already asleep. He testified that he remained asleep until McElrath awakened him.
The jury found both defendants guilty of arson and aggravated arson and the trial judge entered judgment thereon. After a sentencing hearing, the trial judge imposed on each defendant concurrent sentences of three years for the arson conviction and six years for the aggravated-arson conviction. Defendants appeal.
We first address the issue of whether the State proved defendants guilty of arson beyond a reasonable doubt. The parties disagree, however, on the legal principles that ...