Appeal from the Circuit Court of Cook County; the Hon. James
J. Heyda, Judge, presiding.
JUSTICE MCMORROW DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Cook County, defendant Angelo Orr was convicted of one count of aggravated arson (Ill. Rev. Stat. 1981, ch. 38, par. 20-1.1(a)(1)) and three counts of arson (Ill. Rev. Stat. 1981, ch. 38, par. 20-1(a)). The trial court sentenced defendant to concurrent terms of imprisonment of 25 years for the aggravated-arson conviction and 7 years for each of two of the arson convictions. On appeal, defendant raises the following questions for our review.
(1) Whether section 20-1.1(a)(1) of the aggravated-arson statute (Ill. Rev. Stat. 1981, ch. 38, par. 20-1.1(a)(1)) is unconstitutional in view of the Illinois Supreme Court's decision in People v. Wick (1985), 107 Ill.2d 62, 481 N.E.2d 676, in which the court held section 20-1.1(a)(3) of the aggravated-arson statute (Ill. Rev. Stat. 1981, ch. 38, par. 20-1.1(a)(3)) violative of due process.
(2) Whether alleged errors that occurred at trial, either separately or cumulatively, amounted to reversible error. These alleged errors are: (a) the admission into evidence of an oral statement allegedly made by defendant five days prior to the arsons in which defendant threatened to burn the house which was the basis of defendant's convictions, where the State failed to disclose the statement during pretrial discovery, (b) the admission into evidence of the prior consistent statement of the State's only eyewitness to defendant's commission of the arsons in which the witness testified that, following the onset of the fires, the witness saw defendant in a crowd watching the fires and directed a companion of the witness to apprehend the defendant, (c) the admission into evidence of the testimony of two witnesses that they saw defendant being chased, by other persons, from among a crowd watching the fire, (d) the admission into evidence that five days before the fires, defendant threw a manhole cover through the windshield of the automobile of his former girlfriend, whose mother's house was the principal object of the arsons, (e) the admission into evidence of the circumstances of defendant's arrest, (f) allegedly erroneous and prejudicial statements made by the State during closing argument, and (g) the alleged ineffective assistance of defendant's trial counsel.
(3) Whether the trial court's imposition of sentence for two counts of arson violated the requirements of People v. King (1977), 66 Ill.2d 551, 363 N.E.2d 838, that multiple convictions cannot be predicated upon the same, single act.
Based upon People v. Johnson (1986), 114 Ill.2d 69, in which the Illinois Supreme Court held unconstitutional section 20-1.1(a)(1) of the aggravated-arson statute (Ill. Rev. Stat. 1981, ch. 38, par. 20-1.1(a)(1)), we vacate defendant's conviction for aggravated arson. (See also People v. Wick (1985), 107 Ill.2d 62, 481 N.E.2d 676; People v. Dukes (1986), 146 Ill. App.3d 790, appeal denied (1986), 113 Ill.2d 563; People v. Palmer (1986), 141 Ill. App.3d 234, 490 N.E.2d 154, appeal denied with order (1986), 113 Ill.2d 566.) We also conclude that the cumulative impact of the State's failure to disclose and the erroneous admission of certain testimonial evidence deprived defendant of a fair trial. Because the question may arise again on remand, we consider the issue of whether defendant was properly convicted of multiple counts of arson, in light of People v. King. We determine that since the arson of one residence resulted in the spread of the fire to neighboring residences, defendant could be properly convicted of and sentenced on separate counts of arson for each residence damaged by fire. Accordingly, we vacate defendant's aggravated-arson conviction, reverse his arson convictions, and remand the cause for a new trial on the simple arson charges.
Defendant was accused of the July 9, 1981, arson of four residences located in the southwest vicinity of the city of Chicago. One of the buildings was owned by the mother of defendant's former girlfriend. The other buildings, neighboring that of the girlfriend's mother, also caught fire and were damaged as a result of the fire to the mother's residence. The buildings were occupied, and individuals were present therein, at the time the arsons occurred.
The State's theory of prosecution was that the defendant had perpetrated the arsons as revenge because of disputes between defendant and his former girlfriend. Defendant, who testified on his own behalf at trial, relied upon the defense of alibi. Evidence produced at trial established the following.
Gloria McLin (Gloria) and defendant dated each other from approximately July 1979 to either May 1981 or July 1981. Although Gloria had originally lived with her mother at 6031 South Winchester in Chicago, at some point prior to the arsons she moved to Bolingbrook. Defendant resided at 6018 South Winchester.
On July 4, 1981, Gloria was visiting her mother, Bertha McLin, at the mother's home at 6031 South Winchester. That evening, Gloria and defendant had an argument on the back porch of her mother's house which resulted in Gloria cutting defendant's left forearm and chest with a straight razor. Defendant received hospital treatment for the wounds, including 30 stitches to his forearm. On July 6, defendant filed criminal charges against Gloria.
Gloria testified at trial that after she cut defendant with the razor on July 4, defendant told her that "he was going to get me and that he was going to destroy everything that I loved and he was gonna burn my mother's house." Gloria further testified that defendant then threw a manhole cover through the windshield of her automobile, which was parked on Winchester Street near the McLin house.
Gloria also testified that she visited her mother on Winchester Street on July 8 and that, when she returned to her home in Bolingbrook around 1 a.m. on July 9, she received a telephone call that her mother's house was on fire and she returned to the neighborhood.
Jerome Draper testified at trial that on July 8, somewhere between the time of 8:45 p.m. and 9 p.m., he was standing in front of his grandparents' home at 6033 South Winchester and was talking to a friend. Defendant approached them and told them that something was going to happen that evening and that they would hear about it. Defendant did not explain the meaning of his statement; instead, he simply repeated that something was going to happen and that they would hear about it. Draper had known defendant for a year prior to that evening, although he did not know the defendant personally. Draper testified that when he saw defendant, defendant had his arm in a sling.
Ronald Valentine, a resident of the neighborhood at 6036 South Winchester, stated at trial that he saw defendant around 8:45 p.m. on July 8 at 60th and Damen. Defendant told Valentine that "something was gonna happen, for [Valentine] not to get involved, that [defendant] was gonna get back with [Gloria McLin]." Valentine testified that defendant had a bandage on his left arm and was wearing a T-shirt. Later the next morning, Valentine was asleep at 6036 South Winchester. He heard his grandmother screaming because of the fire. Valentine got out of bed and looked out the window. He saw defendant standing across the street from 6031 South Winchester, where Bertha McLin lived. Defendant was watching the fire. Valentine testified that he saw Aaron Robinson and Lars Brown approach the defendant in the crowd and struggle with the defendant. Valentine did not see whether defendant stayed. Valentine stated that he was "good friends" with Gloria McLin, and had dated her several years ago. He also testified that he had known defendant for a year, but did not know him personally.
Lawrence Brown, who lived at 6035 South Winchester with his mother, testified at trial that he recognized defendant by sight because he had seen defendant around the neighborhood, although he did not know him personally. Brown stated that he saw defendant throw a manhole cover into the windshield of Gloria McLin's car on July 4.
Brown testified that in the early morning hours of July 9, he was in front of 6042 South Winchester, in the street, pitching pennies with some of his friends, including Aaron Robinson. He said that around 1:15 a.m. his mother called out to him from the front porch of the house to come see why their dogs were making so much noise. Brown went to the back of the Brown residence. He stated that he saw the defendant in the backyard of the McLin home at 6031 South Winchester and that defendant "was fiddling with a glass about the size of a jar." Brown saw defendant light the object and throw it at the McLin residence. The object hit the back porch of the house and made the sound of breaking glass. The back of the McLin home went up in flames.
Brown stated that defendant then went into the alley behind McLin's home and came down the alley south toward the Brown's residence. Defendant came half way up the back gangway at the Brown's home, then ran back into the alley, and continued to run south in the alley. Brown stated that although there were no lights in the McLin's backyard, the street lights were on and he saw defendant clearly. He testified that defendant was wearing tan or brown pants, a striped shirt, and had a bandage on his left arm.
Brown stated that he then went back to the group with whom he had been on Winchester Street, and told them "what [he] had seen [the] defendant doing." Brown then noticed defendant come out onto Winchester Street through a vacant lot five houses south of Brown's home. Brown stated that he went to the back of McLin's house during the fire, and that it smelled of gasoline fumes.
Brown further testified that he later saw defendant standing across from the McLin house among the crowd that was watching the fire. Brown turned to his companion, Aaron Robinson, and stated, in reference to the defendant, "there's that * * * right there. There go that * * * right there. And, I [Brown] asked him [Robinson] to catch him [defendant]." Brown stated that he ...