Appeal from the Circuit Court of Cook County. Honorable Francis J. Mahon, Judge Presiding.
Rehearing Denied December 10, 1996. Released for Publication December 22, 1996.
The Honorable Justice Gordon delivered the opinion of the court. McNULTY, P.j. and Cousins, Jr., J., concur.
The opinion of the court was delivered by: Gordon
JUSTICE GORDON delivered the opinion of the court:
The defendant, John Parsons, was charged by indictment with aggravated arson for allegedly setting off an explosive device in the bathroom of a Chicago bar in violation of section 20-1.1(a) of the Illinois Criminal Code. Ill. Rev. Stat. 1989, ch. 38, par. 20-1.1(a) now at 720 ILCS 5/20-1.1(a) (West 1994). After a jury trial, the defendant was found guilty of aggravated arson, and was sentenced to a term of 15 years' imprisonment. The defendant filed motions to reduce his sentence and for a new trial which the trial court denied. The defendant appeals his conviction based on the purported insufficiency of his indictment, and on the trial court's failure to instruct the jury as to the lesser offense of criminal damage to property (see Ill. Rev. Stat. 1991, ch. 38, par. 21-1 now at 720 ILCS 5/21-1 (West 1994)). The defendant also appeals the denial of his motions for new trial and for a reduction of his sentence.
Because the defendant does not challenge the sufficiency of the evidence on appeal, the evidence adduced at trial is summarized as follows. On October 25, 1992, the night of the explosion at issue in this case, Margaret Summit owned a bar called the His and Hers Lounge located at 5820 North Broadway in Chicago. Summit testified that on that date, she was in her bar attending a birthday party for one of her bartenders named Joe Franco, and that Joe Franco and Timothy Janes, the bar's security guard, were also with her in the bar. At approximately 1:30 a.m., with six or seven people left at the party, the defendant, John Parsons, and his friend, Robert Cunningham, entered the bar. Summit knew Parsons because he had had an affair with her foster daughter, Susan Hanson, over the course of many years, and had spoken with and met with him on various occasions in the preceding years. Summit testified that the affair had ended shortly before the October 25 explosion, and that since it had ended, Parsons had been calling Summit repeatedly in order to locate Hanson. Summit testified that on one evening in September 1992, Parsons called her 30 times; that he called an average of five times per day every other day; and that defendant angrily threatened and cursed at Summit on more than one occasion when she denied knowing where Hanson was. Summit testified that she did not know the whereabouts of her foster daughter, Hanson, at the time of the trial.
Summit also testified that upon Parson's arrival at her bar on October 25, she was seated at the end of the bar near the pool table, approximately 35 feet away. Summit further testified that she watched Parsons closely because she did not expect to see him in her bar due to his telephone calls. She asked her friend Tim Janes, the security guard at the bar, to watch the defendant, stating, "Why is he here? He's making me nervous." Summit and Janes both testified that they saw the defendant and Cunningham have a couple of drinks and then walk to the pool table area where there were two alcoves: one for bathrooms and the other for a cigarette machine, a computer, and stereo speakers. According to the testimony of both Summit and Janes, the two men stopped and studied the two alcoves, the defendant entered the cigarette machine alcove for three or four minutes, and then entered the men's bathroom for another four or five minutes. Janes and Summit both further testified that the defendant then came out of the bathroom, nodded to his companion Cunningham, shot one pool ball, and then, together with Cunningham, proceeded directly towards the front door of the bar.
Summit and Janes also testified that after the defendant left the men's bathroom, Summit immediately asked Janes to go into the bathroom to check it out. Without pause, Janes briefly went into the bathroom where he looked under the sink, on the floor, above the ceiling tiles and behind the toilet for any damage and for an explosive device. When Janes came out of the bathroom, the defendant and his companion were just leaving the bar. As Summit asked Janes if he had found anything in the bathroom, the bathroom blew up. Its door blew open, its ceiling fell down, water came gushing out, and smoke alarms went off. Summit testified that she did not know how many customers went into the men's restroom over the previous five hours, but that the defendant was the last person other than Janes to exit that restroom before the explosion.
Summit and Janes testified that Janes then called the police and fire departments and soon two Chicago police officers responded. Officer Laurie Haughey inspected the premises and interviewed several customers, Summit, Janes, and Joe Franco regarding the incident. Haughey then called the bomb and arson unit of the Chicago police department, and an officer from that unit inspected the crime scene and later testified that an explosive device had been placed in the toilet tank. Summit also testified that shortly after the explosion and after the police had arrived, she received a telephone call from someone whom she identified as the defendant who said, "Hi, Margaret how you [sic] doing, ha, ha, ha. Your bar is out of business like mine." Summit handed the telephone to Officer Haughey. Haughey testified that the caller identified himself as "John." She discussed the explosion with him and asked him if he would mind returning to the bar, an invitation which he declined after denying involvement in the incident. Haughey stated that the same person called moments later, making the same statements to her as he made in the earlier call. The State also offered unchallenged testimony which revealed that the defendant was identified in a lineup two days after the explosion by Summit, Janes, and Franco.
The defendant and Cunningham both testified for the defense that they were in the bar prior to the explosion, had had drinks and shot pool, but that the defendant had never inspected the cigarette alcove or went into the bathroom that night. The defendant also testified he had no explosive devices with him when he went to the bar. The defendant admitted to placing the first call to Summit's bar after the explosion from Cunningham's car telephone and to speaking to Summit and to Officer Haughey, but stated that he only asked for Susan Hanson when he called because he had not inquired as to her whereabouts while at Summit's bar. The defendant denied placing the second call to the bar.
During the conference on jury instructions, defense counsel asked the court to instruct the jury on the offense of criminal damage to property (see Ill. Rev. Stat. 1991, ch. 38, par. 21-1 now at 720 ILCS 5/21-1 (West 1994)), arguing that it was a lesser included offense of aggravated arson. The court refused the requested instruction. After the jury found the defendant guilty of aggravated arson, the defendant was sentenced to 15 years in the Illinois Department of Corrections.
During the hearing on defendant's sentencing, the State presented factors in aggravation, stating that the explosion was the culmination of a long period of harassment directed at Summit, which involved hundreds of harassing telephone calls and various threats. Further, the State noted that the defendant showed no remorse for his conduct, especially in light of his call to the bar immediately after the explosion, during which he allegedly gloated about blowing up part of Summit's bar, and that the defendant's conduct created a grave danger to the occupants of the bar even though no one was hurt. The defendant then presented factors in mitigation, including the testimony of his wife, who testified that the defendant had been a good father and had been supportive of his family and was a business owner. Defense counsel stated that the sentence should reflect that the explosive was merely a prank and should not be treated as a class X felony.
At the close of the sentencing hearing, the trial court stated as follows:
"I heard the evidence, and I don't think that it's necessary for there to be a specific intent to hurt somebody when they placed something in the toilet. But inasmuch as somebody just left that place, was [sic] certainly something that could be anticipated and I think it was very bad. I sentence you to 15 years in the Illinois Department of Corrections."
Defendant thereupon filed a motion for reduction of his sentence which the trial court denied. Defendant also filed a motion for new trial on the grounds of newly discovered evidence. Attached to that motion were the affidavits of Valerie Johnson, Patricia Kocheny and Donald Zouras. The Johnson affidavit stated that a few weeks after defendant's trial, she overheard a conversation between the defendant and Susan Hanson. During this conversation, Johnson heard Hanson tell the defendant that Summit had lied about the defendant's guilt; that Summit had described the individuals who planted the bomb to Hanson and that Hanson said that Summit's description fit two individuals named Hank and Russell, rather than the defendant and Cunningham; that Hanson would have liked to have helped the defendant but that she was afraid that Summit would harm Hanson's child; and that Summit knew where Hanson was during the trial. The Zouras and Kocheny affidavits provided essentially the same allegations. They also ...