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02/10/88 the People of the State of v. Brent

February 10, 1988





530 N.E.2d 43, 175 Ill. App. 3d 459, 125 Ill. Dec. 125 1988.IL.162

Appeal from the Circuit Court of Cook County; the Hon. James M. Schreier, Judge, presiding.


PRESIDING JUSTICE WHITE delivered the opinion of the court. RIZZI and FREEMAN, JJ., concur.


Defendant Vincent Brent was charged with three counts of murder, four counts of aggravated arson and one count of arson for setting a July 1982 apartment building fire which resulted in the death of one person and injuries to four others. After a bench trial, he was found guilty of all counts and sentenced to serve a 30-year prison term on one count of murder and concurrent 15-year terms for each of the counts of aggravated arson. On appeal, he contends that he was denied a fair trial by the admission of an out-of-court statement as substantive evidence of his guilt; that the statute which allows such admissions is unconstitutional; that he was denied the effective assistance of counsel guaranteed by the sixth amendment of the constitution; that he was not proven guilty beyond a reasonable doubt; that the aggravated arson statute under which he was convicted is unconstitutional; and that the single act he was found to have committed cannot provide the basis for multiple criminal convictions.

On the night of the fire, a witness who lived across the street from the site of the fire called police and reported that she had heard glass breaking, gone to her window, and seen a man running from the burning building. She described the man as an Hispanic or light-skinned black, age 23 to 35, tall, slender, with "frizzy" hair. She also noticed that he was wearing shorts. Defendant, who in each element matched the description given by the witness, was wearing shorts when he was arrested in his home several hours after the fire. The next day, the witness viewed a lineup of suspects and identified defendant, but that identification was characterized by police as "tentative," and details of the lineup were not recorded.

William McCane, who lived in the apartment where the fire started, testified that he had known defendant from the neighborhood, and that on the night of the fire, he had fought with defendant outside a bar in the area and had hit defendant in the face with a stick. McCane, who alerted the authorities after he discovered the fire, directed police to defendant's apartment.

Joseph Melkovitz testified that he had seen defendant in the neighborhood on several occasions and that defendant and McCane had once joined in an unsuccessful attempt to jostle him and pick his pocket in a bar. He said that on the night of the fire, he was visiting a friend who worked at a local service station when defendant came in and paid for a small quantity of gasoline. He said that he did not actually see defendant pump gas, but that he saw defendant walking away from the pumps carrying a bottle of liquid. When he saw fire trucks pass by a short time afterward, he followed them and told police at the site of the fire what he had seen.

A police department arson investigator testified that the fire appeared to have been set in McCane's first-floor apartment, which was accessible from the street, with a liquid accelerant poured at the base of the window of the apartment.

Patricia Massey, who lived with defendant, testified that he came home at about 2:15 a.m., which was approximately two hours before the estimated time of the fire's start, and that he did not leave again that night. The prosecution introduced a statement signed by Massey while in police custody. That statement indicated that defendant came home between 2 and 3 a.m. on the night of the fire, spoke of his fight with McCane, left at about 3:30 a.m. while still angry, and returned at approximately 4:30, smelling of gasoline. At trial, Massey denied making any such statement and said that she had agreed with police and signed what they showed her only so that she would be allowed to leave.

Defendant contends that the statutory provision which allows substantive use of prior inconsistent statements in criminal trials (Ill. Rev. Stat. 1985, ch. 38, par. 115-10.1) is an unconstitutional legislative infringement on judicial power because it changes a rule of evidence developed by prior case law. This argument ignores the long-established principle that the legislature has the power to prescribe new and alter existing rules of evidence or to prescribe methods of proof. (People v. Wells (1942), 380 Ill. 347, 354, 44 N.E.2d 32.) The supreme court reaffirmed this principle in People v. Rolfingsmeyer (1984), 101 Ill. 2d 137, 140, 461 N.E.2d 410, holding that the legislature had not infringed on judicial authority by allowing the admissibility of a driver's refusal to take a breath test. Since defendant cites no precedent which invalidates a legislative change of evidentiary rules, we hold that the statute involved in the instant case does not unduly infringe on judicial power and is a proper exercise of legislative authority.

Defendant also claims that the trial court improperly admitted Massey's statement without first determining that the statement was voluntary. He correctly argues that the voluntary nature of an out-of-court statement must be established before the statement can be admitted at trial. However, in a bench trial, a court's failure to make specific findings of fact does not constitute reversible error where the evidence sustains the court's decision. (People v. Lerch (1985), 134 Ill. App. 3d 643, 651-52, 480 N.E.2d 1253.) Furthermore, the court in a bench trial is presumed to consider only proper evidence. (People v. Earullo (1983), 113 Ill. App. 3d 774, 447 N.E.2d 925.) Therefore, though the trial court did not explicitly make a finding on the voluntary nature of Massey's statement, we believe that the record supports a finding that Massey's statement was voluntary.

The officer who prepared Massey's statement testified that it accurately represented the questions given to Massey and the responses she gave. He testified that she was given the statement to read and correct for errors, and that she signed each page. Massey testified that she had been advised of her rights before being questioned. Defendant's claim that Massey's statement was involuntary is based on her in-court claim that she was tired after 10 hours of detention, that police had told her that she could be separated from her child, and that she wanted to leave the station. Since detention itself is not evidence of coercion, and since the other testimony admitted supports the Conclusion that the ...

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