Appeal from the Circuit Court of Cook County. Honorable Thomas Tucker, Judge Presiding.
The opinion of the court was delivered by: Justice Quinn
In a 43-count indictment, defendant Danniel Henney and his co-defendant Dino Dicorpo were charged with first degree murder, aggravated arson, burglary and residential burglary. Defendant's case was severed from that of his co-defendant and separate trials were held. *fn1 Following a jury trial, defendant was convicted of six counts of first degree murder and one count each of burglary, arson and aggravated arson. On the murder convictions, defendant was sentenced to natural life in prison. He was also sentenced to a concurrent 7-year prison term on his burglary conviction and a consecutive 30-year term on his aggravated arson conviction. On appeal, defendant contends that the trial court erred: (1) in refusing to qualify a defense witness as an expert; (2) in allowing the State to present improper rebuttal testimony; (3) in failing to order sua sponte a hearing into defense counsel's effectiveness at trial; (4) in imposing a consecutive sentence on his aggravated arson conviction; and (5) in failing to order sua sponte a fitness hearing. Defendant does not challenge the sufficiency of the evidence in support of his convictions. For the reasons set forth below, we affirm the judgment of the trial court. Defendant's contention regarding a fitness hearing will be determined in an unpublished portion of this opinion.
Defendant's convictions arose from a fire set in the early morning hours of September 15, 1997, on a back porch of the apartment building located at 2322 South 61st Avenue in Cicero. The fire resulted in the death of Anthony Poull (Anthony) and his five children. In a written statement defendant gave to an assistant State's Attorney on December 23, 1997, he explained that on the night of the fire, he had been with Dicorpo, Jason Laurie and Peter Fisher at Laurie's home located in Cicero. After the four "did some drinking" and smoked some "weed," they left Laurie's home and drove around the area looking for something to steal. Eventually, the four pulled into an alley behind some houses located on 61st Avenue. Defendant and Dicorpo then got out of the car, jumped a fence and unsuccessfully attempted to open the window of a garage in order to enter and steal things. Upon seeing the rear door of the apartment building open, the two passed through the door, which led to a back porch containing boxes of clothes and a clothesline with items hanging on it. When defendant and Dicorpo failed to find "anything good to steal," defendant dropped a cigarette he had been smoking near some boxes of clothes and Dicorpo, using a lighter, lit the items hanging on the clothesline on fire. The two then returned to the car and informed Laurie and Fisher that they had started a fire. The four drove around the block a few times until they saw the fire "get bigger and bigger." After returning to Laurie's home, defendant heard sirens and fell asleep. The next morning, defendant learned that five children died in the fire.
Prior to trial, defendant filed a motion to quash arrest and suppress statements. In the motion, defendant claimed that because of his illiteracy and lack of education, he did not understand his Miranda rights as they were explained to him, and therefore, his statements to police were not knowingly and willingly made.
At the hearing on the motion, the defense called Vivian Liese, who was an educational consultant and diagnostician. She stated that her background had been in learning disabilities and that she had worked with people having learning problems.
[Unpublished material under Supreme Court Rule 23 removed here.]
Liese stated that defendant would have difficulty reading anything beyond a third-grade level and opined that the readability of the Miranda warnings and his statement to investigators were at a mid-seventh-grade level. She also stated that even if Miranda warnings were read to defendant, he would have a difficult time understanding them. Liese stated further that given the readability of defendant's written statement, defendant would have difficulty understanding it, even if it were read to him.
The State rebutted Liese's testimony with that of Dr. Paul Fauteck, a senior staff psychologist with the department of forensic clinical services of the circuit court of Cook County. Following the hearing, defendant's motion to suppress was denied and his statement was admitted as substantive evidence at trial. The denial of the motion to suppress has not been raised as an issue on appeal.
At trial, Gary Gonzalez, a firefighter with the Cicero fire department, testified that upon arriving at the scene, he was informed that five children were trapped on the second floor of the two-flat apartment building. At the time, Gonzalez saw a "huge amount of fire," which was predominately in the rear of the building. Gonzalez testified that he entered the burning building through a second-story window, where he found all five of the deceased Poull children. Without objection, Gonzalez testified through the use of photographs as to the identify of the five children and their locations within the apartment at the time of their deaths.
[Unpublished material under Supreme Court Rule 23 removed here.]
Peter Fisher testified that he had known defendant for about five years and had met him through Jason Laurie. On the night of September 14, 1997, Fisher was at Laurie's home, where he saw defendant, Dicorpo and Laurie ingest cocaine and smoke marijuana. After drinking some beer, Fisher, defendant, Dicorpo and Laurie decided to drive around Cicero. The four went "driving around" for about a half hour, before turning into an alley. Dicorpo then stated, "Stop the car." Dicorpo and defendant, who had been riding in the backseat, then got out of the car and walked down a gangway before Fisher lost sight of them. About 15 minutes later, Fisher saw a garage door open, and defendant and Dicorpo emerged from the garage in a black Nissan. Dicorpo, who was driving, instructed Fisher and Laurie to follow him and defendant. After arriving back at Laurie's house, defendant and Dicorpo removed the radio from the Nissan and the two took it to a side street in Oak Park and "dumped" it there.
After abandoning the car, Dicorpo and defendant got into the backseat of the car Laurie was driving and the four continued to ride around Cicero. At one point, Laurie turned down an alley on the 2300 block of South 61st Avenue and Dicorpo instructed him to stop the vehicle. Dicorpo and defendant then exited the car and walked into a gangway. Fisher believed that the two would attempt to steal things from the garage, as they had previously done.
About 15 minutes later, Fisher saw defendant and Dicorpo running toward the car. The two "jumped" in while both yelled, "Go, go, go, go." When asked by Laurie what was wrong, defendant and Dicorpo, at the same time, stated they had lit a "cover" on fire. The four then drove around the block three times until they saw flames coming out of a window. After returning to Laurie's house, the four got out of the car and saw fire trucks coming down the block. Upon seeing this, defendant stated, "Nobody better not say nothing." Fisher stated that he did not tell anyone about what had occurred until he was interviewed by detectives in December of 1997.
On cross-examination, Fisher denied taking any cocaine and smoking any marijuana on the night in question, but admitted to being "pretty intoxicated" from drinking. Fisher also testified that he had not been charged in connection with the fire that claimed the lives of the six members of the Poull family.
Jason Laurie testified to many of the same facts as Fisher regarding the events prior to defendant and Dicorpo exiting the car in the alley behind the 2300 block of 61st Avenue. Laurie also testified that about 15 minutes after defendant and Dicorpo got out of the car and went through the gangway, they emerged running from the gangway, "jumped" into the car and stated, "Go, go, go." After pulling away from the scene, Laurie asked what had occurred, and they responded that they had started a fire. Not believing them, Laurie drove around the block three times. On the first trip around the block, Laurie did not see anything happening to the building, on the second, he saw a glow in the back window and on his final trip, he saw flames coming out of the window on the back porch of the house. Upon arriving back at his house, Fisher saw fire trucks and was instructed by defendant not to say anything regarding the events that had occurred that evening. Around 11:30 a.m. on December 22, 1997, police arrived at Laurie's home, which he shared with Dicorpo, and asked to talk to them.
On cross-examination, Laurie admitted to ingesting cocaine and smoking marijuana on the night in question, but denied that it affected his ability to remember things. He further admitted not contacting the authorities regarding the fire. Laurie also testified that he had not been charged with any crimes relating to the night in question.
Patricia Brasil testified that in September 1997, she was living in Cicero at 2626 South 59th Avenue. At the time, she owned a black Nissan. Brasil testified that she saw it around 10 p.m. the evening of September 14, 1997, in her garage, and that it was missing the following morning. Two days later she received a telephone call from the Oak Park police informing her the vehicle had been found on Lombard Avenue in Oak Park. After retrieving the car, Brasil discovered that the car radio, a pager and compact discs had been removed from it.
Christopher Wilson, who was incarcerated at the time of defendant's trial on a felony retail theft conviction, testified that he was a friend of defendant's. Wilson stated that in November 1997, he had a conversation with defendant, during which he asked defendant why he had not seen him in several days. Defendant informed Wilson that he and Dicorpo had started the fire that had killed the five Poull children.
Assistant State's Attorney David Sabatini testified that on December 23, 1997, he interviewed defendant at the Cicero police station. Sabatini read defendant his Miranda rights, which defendant said he understood. After defendant told Sabatini that he and Dicorpo set the fire, defendant agreed to give a written statement. Sabatini printed out a four-page handwritten statement, which he then read to defendant. The contents of this statement have previously been set out. Defendant signed the first and last pages of the statement and initialed every page and every correction. The statement was admitted into evidence. Sabatini testified that defendant was nervous, but alert, during the interview and knew he was arrested because of the fire that killed the children.
James Leahey, a fire inspector with the Illinois State Fire Marshal's office, testified that he investigated the cause of the fire in question. Based upon the presence of extensive burn patterns, Leahey concluded that the fire had originated in the area of the first-floor back porch and had been caused by the application of an open flame to some ordinary combustibles and building materials. Leahey also testified that an accelerant- sniffing dog was brought in and that it did not alert investigators as to the presence of any accelerants on the premises. Chemical analysis tests on debris from the fire scene did not show the presence of any accelerants. On cross-examination, Leahey admitted that if an accelerant were used to start a fire, it could be totally consumed in the fire and leave no trace.
The parties stipulated that a burned-up lighter fluid can and a lighter recovered from the scene had no latent fingerprints suitable for comparison on them. Upon admission of its exhibits into evidence, the State rested its case.
At trial, Liese, who was called to testify on defendant's behalf, testified that she was an educational diagnostician. As for her educational background, Liese testified that she had received a bachelor's degree from the University of Illinois, a master's degree in learning disabilities from Northwestern University in 1974, and had completed her course work on her doctorate in educational psychology at the University of Chicago and was writing her dissertation.
Regarding her work experience, Liese stated that after receiving her master's degree, she had worked for a short time as a diagnostician at Mercy Hospital, where she evaluated children and adults for learning disabilities. Liese then worked for three years at a private therapeutic school with severely emotionally disturbed and learning disabled children. Following this position, Liese entered private practice, where she was a therapist with children and adults having learning problems. Liese subsequently joined the staff at Northwestern Hospital, where she was eventually put in charge of all inpatient and outpatient evaluations. During the time of her employment with Northwestern Hospital, Liese also worked in private practice as a diagnostician, evaluating children and adults who were experiencing learning problems. Liese ...