Appeal from the Circuit Court Cook County. The Honorable Paul J. Nealis, Judge Presiding.
The Honorable Justice Egan delivered the opinion of the court: McNAMARA, J., concurs. Justice Rakowski, concurring in part and dissenting in part:
The opinion of the court was delivered by: Egan
The Honorable Justice EGAN delivered the opinion of the court:
The defendant Samuel Kinsloe was accused of setting his wife, Laverne, on fire during a fight. At his trial, Laverne exonerated him. A jury found him guilty of heinous battery and aggravated battery, both premised upon the burning, but acquitted him of attempted murder. The trial judge sentenced him to 12 years imprisonment on the heinous battery conviction. He contends that the judge erred in admitting, as substantive evidence against him, pre-trial, inculpatory statements allegedly made by Laverne. He further argues that absent those statements there was insufficient evidence to convict him.
Laverne Kinsloe was the only occurrence witness in this case. The defendant did not testify. As a result of events which occurred on February 17, 1993, she suffered severe burns covering 30% of her body, primarily on her arms, chest, back and head. According to the doctor who treated her, she will continue to suffer from some of these burns throughout her life. The prosecution called her to testify against the defendant knowing that she would state under oath that she somehow set herself on fire. The State's case hinged upon expert testimony about the cause and origin of fire and upon impeaching Lavern's credibility, as well as by using as substantive evidence an Assistant State's Attorney's testimony summarizing the contents of pre-trial writings she allegedly made inculpating the defendant.
Laverne's testimony is as follows. Laverne and the defendant were married on April 19, 1992. At that time, they lived together in a house in Alsip, Illinois with her two minor children. The defendant owned another house in Posen, Illinois, a two-flat, which he was in the process of renovating, with Laverne's financial assistance. In August 1992, the couple moved into the lower level of the Posen residence. Laverne described her marriage to the defendant as "chaotic." The defendant abused Laverne both physically and sexually. This abuse began before they were married.
During the morning of February 16, 1993, Laverne and the defendant were at the Alsip house where they got into an argument, after which the defendant left. Laverne subsequently went about her business for the day, returning to the house around 11:30 p.m. At that time, she discovered that numerous gifts the defendant had given her were missing. The defendant did not return to Alsip that night.
The next morning, Laverne drove to the house in Posen. There, she found the items that were missing, including a computer, china and linens. She also found some renovation materials for which she had paid, including some oak paneling. She put these into the car and drove back to Alsip.
She returned to Posen at 1 p.m. in her pick-up truck. She was going to remove additional items, such as furniture, that she had placed on a deck attached to the back of the house. When she arrived she noticed that these things had been removed from the deck. She then attempted to enter the front of the house but could not get the door open, although her key was working. She returned to the back of the building to try to gain entry there when the defendant appeared.
When she saw him she began running up an outside stairway that leads to a deck outside the upstairs apartment. She got inside the building, but the defendant dragged her out and began choking her and leaning her over the deck railing. The defendant calmed down and let Laverne go, then turned and walked into the house, shutting the door behind him. She demanded that he open the door, and he relented. She entered the apartment, and the two began talking at a distance of 10 to 15 feet. The defendant recommenced the argument from the previous day, his anger rising, and he finally told Laverne to leave the house. She responded that the house was as much hers as his. Laverne believed that the defendant had added her name to the deed for the property. The defendant told her that he had lied about doing so.
She became very upset and began pointing to things in the house for which she had paid. Eventually, she picked up a can of liquid floor paste wax. She continued to move through the apartment and the defendant pursued her. She attempted to exit the front door, but she could not because the defendant had nailed it shut. The defendant caught Laverne and began choking her and banged her head against the wall. He also bent her thumb back to pry the can loose. Eventually the can banged against the wall, the cap opened, and the wax spilled onto the wall and carpeting.
The defendant took the can and began kicking Laverne in her back and side. Laverne began screaming as he poured the contents of the can of wax on her. The wax entered Laverne's ear and throat, and ran down her body. Soon, she began to feel herself "getting high from the fumes." The defendant continued to attack Laverne, yelling at her, picking her up and using her "as a battering ram against the hallway wall."
Somehow, Laverne ended up in the bedroom. The defendant was blocking the doorway, and Laverne could not leave. As she stood against the wall, she saw a "wallpaper cutter" on the window sill and grabbed it in her left hand, threatening to cut him if he did not move. She could not recall precisely what then occurred because she was high from the fumes at the time. She smokes when she gets nervous. Apparently in the mistaken belief that the wallpaper cutter was a cigarette, she tried to put it in her mouth. She heard the defendant say, "Laverne, don't do it." Nonetheless she tried to light the wallpaper cutter. Then, she felt something on herself and tried to brush it off. She realized her hand was on fire. She was wearing a Chicago Bulls' starter jacket and jeans and a t-shirt. As she tried to unzip the jacket, she realized her whole body was on fire. She indicated that the fire started at mid-chest level, approximately ten or eleven inches below her neck.
She pleaded with the defendant to help her. Then, she felt something on top of her and felt the jacket coming off and remembers it being thrown away, as she was "dropped and rolled" by the defendant. Nonetheless, she continued to burn. She saw the defendant in the hallway, and he told her to "get in the water." The defendant was apparently referring to the bathroom located off the bedroom. She made it to the bathroom, and the defendant told her to get in the shower, and she did so. At first, there was no water. She began to feel her skin "dripping off of" her. The defendant was doing something with his hands, but Laverne stated that she finally turned on the water. The next thing she remembered was being taken by paramedics to the hospital.
Laverne was taken to the Loyola University Hospital burn unit. At Loyola, she was attended by Dr. Richard Gamelli. When she arrived, she had been intubated so she could breathe. She could not speak and was medicated to relieve any pain. Dr. Gamelli performed multiple surgeries on Laverne during the early spring of 1993 to remove and replace damaged skin tissue.
Dr. Gamelli acknowledged that the medical reports upon which he relied in diagnosing and treating Laverne indicated that Laverne had lit a cigarette before the fire. Dr. Gamelli also had the opportunity to speak with Laverne toward the end of February. Laverne told him simply that the fire occurred while she and her husband were together and that "she was set on fire."
Milton Batson is an arson investigator for the State of Illinois Fire Marshall. He investigated the fire at the defendant's house in Posen. The State also called him to testify as an expert on the cause and origin of fires. Batson examined the floor wax in the can which the defendant poured onto Laverne. He stated that the material in the can was a combustible, as opposed to flammable material. Flammable materials are those, such as gasoline, which emit sufficient vapors that one need only hold a flame in their vicinity to ignite them. Combustible materials, on the other hand, emit fewer vapors, and a flame must ordinarily be touched to the materials to ignite them.
Police officers at the scene apparently retrieved the shirt Laverne was wearing and gave it to Batson. To determine the cause and point of origin of a fire involving clothing, Batson looks for fabric shrinkage, as well as "V-patterns," indicating upward burning. Based upon the condition of the fabric of Laverne's shirt, Batson determined a point of origin on the front of the shirt on the left upper chest area. Batson was also able to determine that this fire was extinguished because it did not continue up to the top of the shirt. Batson also discerned a point of origin on the back of the shirt, toward the middle right side.
Because he saw two points of origin on the shirt, one on the front and one on the back, Batson determined that the fire was not started accidentally. (No objection was made to this testimony nor is it assigned as error in this court.) He acknowledged, however, that if a person wearing a shirt covered with a combustible material caught fire at one point and then rolled on the ground, a second point of origin could occur. He ...