Appeal from the Circuit Court of Cook County 07 CR 13027 Honorable Joseph G. Kazmierski, Judge Presiding
The opinion of the court was delivered by: Justice McBRIDE
JUSTICE McBRIDE delivered the opinion of the court: Following a jury trial, defendant, Frederick Stewart, was found guilty of arson and aggravated arson and the trial court sentenced him to concurrent terms of six and nine years' imprisonment, respectively. On appeal, defendant contends that (1) the State failed to prove him guilty of arson and aggravated arson beyond a reasonable doubt; (2) the trial court abused its discretion by admitting the death certificate of Willie Jones into evidence; (3) the court failed to properly question the prospective jurors pursuant to Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007); and (4) the court abused its discretion by failing to instruct the jury on the lesser-included offense of criminal damage to property.
Jury selection in this case began on August 20, 2008. The trial court initially made the following statements to the venire.
"Under the law, the defendant is presumed to be innocent of the charges against him. This presumption remains with him throughout every stage of the trial and during deliberations on the verdict and is not overcome unless from all the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty.
The State has the burden of proving the guilt of the defendant beyond a reasonable doubt and this burden remains on the State throughout the case. The defendant is not required to present any evidence on his own behalf."
The trial court then questioned the first panel of prospective jurors:
"Okay. Do all of you understand and accept the following fundamental principles of our legal system:
That a person accused of a crime is presumed to be innocent of the charges against him, that that presumption stays with the defendant throughout the trial and is not overcome unless from all the evidence you believe that the State proved his guilt beyond a reasonable doubt; that the defendant does not have to prove his innocence; that the defendant does not have to present any evidence on his own behalf. Do all of you understand those principles apply to this case, everybody?
Anybody have any problem with any of those principles, let me know, please."
Defense counsel then questioned the first panel, stating, "Now, the judge explained to you that the Defense has no burden in this case. If Mr. Stewart decided not to testify, which is his right, would you consider that in your verdict?" One potential juror responded "perhaps" to defense counsel's question and stated that it would "depend on the Judge's instruction." The trial court responded, "I will instruct you in that regard, that if the defendant chooses not to testify, that fact must not be considered by you in any way in arriving at your verdict." The same potential juror stated, "then it won't be considered by me." Defense counsel then asked the prospective jurors individually whether they would consider defendant's decision not to testify in arriving at a verdict. All of the prospective jurors responded that they would not, except for one juror who responded "possibly" and another who responded, "I'm not certain yet, but I would have to hear the circumstances of the situation first."
The trial court proceeded to question the second panel of prospective jurors as to whether they understood and accepted the following principles:
"That a person accused of a crime is presumed to be innocent of the charges against him, that that presumption stays with the defendant throughout the trial and is not overcome unless from all the evidence you believe that the State proved his guilt beyond a reasonable doubt; that the defendant does not have to prove his innocence; that the defendant does not have to present any evidence on his own behalf."
Defense counsel posed the following question to the second panel of prospective jurors:
"I know the judge asked you a question similarly along these lines, but if Mr. Stewart does not take the witness stand, would any of you hold that against him, by a show of hands about him not testifying?
The trial court then questioned the third panel of prospective jurors:
"Do all of you understand and accept the following fundamental principles of our legal system:
That a person accused of a crime is presumed to be innocent of the charges against him, that that presumption stays with the defendant throughout the trial and is not overcome unless from all the evidence you believe that the State proved his guilt beyond a reasonable doubt; that the defendant does not have to prove his innocence; that the defendant does not have to present any evidence on his own behalf.
Do all of you understand those principles apply to this case?"
Defense counsel asked each prospective juror individually whether he or she would consider defendant's decision not to testify in arriving at a verdict. All of the jurors responded that they would not.
The following evidence was presented at defendant's trial.
Chicago police officer Erin Murphy testified that on June 8, 2007, she was on patrol in a marked police car with her partner, Officer Timothy Tantillo. At approximately 4:20 a.m., Officer Murphy was patrolling the area of 53rd Street and Princeton Avenue in Chicago, Illinois, which is a residential area with a number of abandoned buildings and vacant lots. Officer Murphy was patrolling north on Princeton when she looked through an alley to South Shields and observed a man, whom she identified as defendant, holding a red gas can and standing on the first-floor back porch of a vacant building located at 5405 South Shields. The officer, who was familiar with the area, testified that Shields was one block to the west of Princeton, that an alley ran between the two streets, and that people still lived in the area. Officer Murphy was able to see the building on Shields because there were only vacant lots between her and defendant.
As Officer Murphy drove through the alley toward the building located at 5405 South Shields, she noticed that defendant was wearing latex gloves and that the gas can's spout was sticking out. When Officer Murphy passed defendant, he fled on foot across several vacant lots toward Princeton. Officer Murphy followed in her squad car and saw defendant throw the gas can and the black shirt he was wearing to the ground. Defendant ultimately hopped a fence and ran into the backyard of 5345 Princeton, where he was placed into custody by Officer Tantillo. Defendant was still wearing the latex gloves at the time, and Officer Murphy was present when Detective Bell removed them from him.
Officer Murphy then retrieved the gas can and shirt that defendant had
discarded. Officer Murphy saw that the back porch defendant had been
standing on was on fire and called the fire
department. She described the fire as "huge" and testified
that the entire back porch was "up in flames" and that all of the
windows on the back of the house were "busting out." Officer Murphy
described the weather at that time as "very windy" and testified that
the wind was blowing "so strong" to the north that it had blown the
fire across the alley to a house located at 5354 South Princeton,
which caught on fire. Officer Murphy also testified that the shirt she
recovered smelled of gasoline and that defendant also smelled of
gasoline when he was taken into custody. On cross-examination, Officer
Murphy testified that she witnessed her partner search defendant when
he was placed into custody and that she did not see her partner
recover matches, a lighter, or any other item from defendant that
could be used to start a fire.
Ryan Rivera, a fire marshal for the city of Chicago, was qualified as an expert in the area of fire investigations. Rivera was called to the scene and learned that there had been a heavy amount of fire in rear of the second floor of the building located at 5405 South Shields and that the fire had spread to the roof of another occupied building. He examined the interior and exterior of the building at 5405 South Shields and determined that the fire started on the second-floor landing of the porch. He observed that at the rear of the house, the stairs leading to the second-floor landing were gone. He went through the interior of the house to the rear of the second floor where the fire started and observed that there was no flooring on the second floor landing. Because he had been told that there was a heavy amount of fire, he looked for something, such as a mattress or a sofa, that would have caused that amount of fire. He found no such object, which indicated that the fire was assisted by a flammable liquid. Moreover, the fire had burned evenly across the wooden flooring, which it does not normally do, and this also indicated that the fire was assisted by a flammable liquid. Rivera also smelled gasoline at the rear of the second floor of the building and determined that the fire had been caused by criminal action.
Based upon his experience and examination of the scene, Rivera concluded that the fire was caused by the "open flame ignition of the flammable liquid vapors of an ignitable liquid" on the second-floor landing of the building. Rivera also explained that the fire "flew across" the alley and burned a hole in the roof of the other building. Based upon his experience and the fact that the wind was blowing at approximately 27 miles per hour at the time of the fire, Rivera concluded that it was "absolutely" "a possibility" that the initial fire spread to the secondary structure. On cross-examination, Rivera testified that there was evidence of squatters living in the building located at 5405 South Shields.
Officer Steven Bryan testified that at approximately 4:30 a.m. on June 8, 2007, he responded to a call of a foot chase in the area of the 5300 block of South Princeton. Upon arriving there, he observed a large number of people in their yards in the area and was flagged down by a woman who screamed, "my house is on fire." That house was located at 5354 South Princeton. Officer Bryan observed that the wind was blowing embers through the alley toward 5354 South Princeton and that the roof of that house was on fire. He notified dispatch of the fire and subsequently learned that there was another fire in a building that was located within the block.
Detective Kevin Bell of the bomb and arson squad responded to an arson
investigation at 5405 South Shields. He retrieved the red gas can and
the shirt defendant had been wearing from Officer Murphy and took a
pair of latex gloves that were still on defendant's hands. The
testified that defendant's shirt and the liquid inside the
red can both smelled of gasoline. A spout was also screwed into the
opening of the gasoline can. The detective testified that the building
located at 5405 South Shields was abandoned and the following exchange
then took place at the conclusion of Detective Bell's direct
"Q. And how did you set out to determine who the owner of the property is?
A. Best way we do it is to check the County Assessor's taxpayer database.
Q. When you checked the database, did you learn in fact that the owner ...