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07/12/94 PEOPLE STATE ILLINOIS v. DWIGHT WEST

July 12, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DWIGHT WEST, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Clinton County. No. 92-CF-13. Honorable Dennis M. Huber, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Lewis, Chapman, Maag

The opinion of the court was delivered by: Lewis

PRESIDING JUSTICE LEWIS delivered the opinion of the court:

Defendant, Dwight West, appeals his convictions by a jury for the offenses of arson (720 ILCS 5/20-1 (West 1992)) and aggravated arson (720 ILCS 5/20-1.1 (West 1992)). On appeal, defendant contends (1) that the State's expert witness should not have been allowed to testify as an expert on the cause and origin of the fire either (a) as a matter of public policy or (b) since the expert's investigation was done in contravention of the Private Detective, Private Alarm, and Private Security Act of 1983 (225 ILCS 445/1 et seq. (West 1992)); (2) that the court abused its discretion when it denied defendant's motion for directed verdict at the close of the State's evidence; (3) that the court abused its discretion when it replaced a juror with an alternate juror on the second day of trial; and (4) that the court erred when it allowed two State exhibits into evidence. For the reasons set forth below, we reverse and remand for a new trial.

Defendant owned and operated a retail business known as Fash-N-Fab, in which he sold vacuum cleaners, ceiling fans, sewing machines, craft items, and fabrics. Defendant also serviced and sold parts for vacuum cleaners and sewing machines. On August 8, 1990, Fash-N-Fab occupied three separate buildings located at 1485 WestBroadway, Centralia, Illinois. The front building or northernmost building was a display area (the display building), the middle building contained the office and a work area (the office building), and the southernmost building was a warehouse (the warehouse). The display building was connected to the office building by two passageways, while the office building was connected to the warehouse by one passageway. Defendant left the premises for the day on August 8, 1990, at about 5:30 p.m., shortly after which, at 5:37 p.m., a fire at Fash-N-Fab was reported to the Centralia Fire Department. The Centralia Fire Department responded within minutes of the report of the fire. Defendant filed a claim against his insurance carrier, State Farm Insurance Company (State Farm), for his loss. Because of the size of the loss, State Farm investigated the fire, and the investigator working for State Farm determined that the cause of defendant's fire was arson. Subsequently, the State brought five counts of arson and one count of aggravated arson against defendant.

The primary dispute in this case is over the trial Judge's denial of the defendant's motion to disqualify John Walker, the State's expert witness, from testifying, because Walker was not licensed to investigate the cause and origin of fire for monetary gain. (225 ILCS 445/2(h)(4), 4 (West 1992).) We will summarize the testimony of Walker and two of the defendant's expert witnesses, because it assists in elucidating the reason why the legislature requires licensing of investigators of the cause and origin of fires.

Walker testified that he was employed by Barker and Herbert Analytical Labs (Barker and Herbert) of New Haven, Indiana, and that he investigates causes and origins of fires. He stated that he has a degree in nursing technology and an associate degree in fire science and is working on a bachelor's degree in fire and safety engineering and another degree in mechanical engineering, but he had no four-year degree at the time of trial. Further, he stated that he had attended approximately 1,000 hours in specialized training related to fire investigation, and that he had investigated over 2,000 fires. Upon voir dire by defense counsel, Walker admitted that he was not licensed as a fire investigator in the State of Illinois. Defendant objected to Walker testifying as an expert witness because he was not a licensed investigator as required by statute. (225 ILCS 445/2, 4(h)(2).) The court noted that it was clear that Walker's actions were contrary to the statute, but the court determined that a person need not be licensed to qualify as an expert. The court then allowed Walker to testify as an expert witness.

Walker testified that he was hired by State Farm to investigate the Fash-N-Fab fire to determine its cause and origin. He first learnedabout the fire on August 10, 1990, but he did not go to the fire scene until the following Monday, August 13, 1990. Walker started his investigation by walking around the exterior of the buildings and then walking through the interior. He explained that he looked at the method of construction and the materials present inside the building. Walker found that there was a similar degree of extensive destruction in the office and display buildings, but that there was less destruction in the warehouse. However, Walker stated that the fire burned hotter in the north and west half of the display building. Walker found that the fire at Fash-N-Fab was hot and intense, and that it burned in multiple portions of the building very early, which he found unusual. Walker noted that the smoke from the fire was quite black, indicating that there were petroleum products inside, which was also unusual. Walker acknowledged that the carpeting in the office and display buildings and the tile flooring under the carpeting in the office building may have contributed to the black smoke, but he stated that neither was enough to create the degree of black smoke present. In Walker's opinion, the fire in the loft area of the warehouse appeared to be an isolated area of intense burning, indicating a separate fire origin.

Walker discussed the burn patterns of fires, stating that accelerant burn patterns are different from natural burn patterns. Walker found the burn patterns of the carpeting to be irregular, which indicated that there was intense floor-level burning. He stated this was the type of pattern found when an accelerant was "sploshed" onto the carpeting. He also stated that the floor-level burning was demonstrated by the burn patterns on the round display tables, which showed more burning on the underside of the tables than the top.

In contrast, however, Walker testified that the charring on the display frames in the display building was more intense on the upper portions than near the floor, and that there was no floor-level burning in the warehouse.

Walker took four samples to test for accelerants from the office building. In three of the samples, no accelerant or accelerant residue was found. He did not have the fourth sample tested even though he could smell a hydrocarbon substance (a flammable liquid) in it. He did not have this sample tested because:

"Just because you find accelerant residue in a fire is not necessarily indicative that that was the accelerant that was used. * * * In this example, or in this case, because this was a repair area where there could possibly have been some cleaning solvents to clean oil or grease from a sewing machine or vacuum cleaner motor or something."

According to Walker, the reasons why an accelerant residue may not be found in a sample were that some of the accelerants are water soluble and may be washed away when the firemen extinguish the fire with water; that the accelerant was completely consumed in a hot fire; that the accelerant was prone to evaporation; or that the sample was taken from the wrong place.

Walker explained that fire typically burns up, not down, and that if a fire burns down, it may be due to an unusual direction of air, such as from a fan, or it may be that a fuel accelerated the burning. He cited a couple of instances where the fire burned downward at Fash-N-Fab. Walker also stated that the fire began in more than one area at the same time, which indicated the use of a liquid accelerant. Walker ruled out careless smoking, the electrical wiring, the natural gas heater, and the furnace as possible causes of the fire. Walker concluded that the fire in ...


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