People v. Brown, s. 1-90-1612

• Decision Date: 10 September 1993
• Docket Number: 1-91-1524,Nos. 1-90-1612,s. 1-90-1612
• Citation: 192 Ill.Dec. 26,253 Ill.App.3d 165,624 N.E.2d 1378
• Parties: , 192 Ill.Dec. 26 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Arthur BROWN & Michael Harper, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1378

624 N.E.2d 1378

253 Ill.App.3d 165, 192 Ill.Dec. 26

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Arthur BROWN & Michael Harper, Defendants-Appellants.

Nos. 1-90-1612, 1-91-1524.

Appellate Court of Illinois First District, Fifth Division.

Sept. 10, 1993.

Christopher Daddino, Cook County States Atty., Chicago, IL, Lester Finkle, First Assistant Public Defender of Cook County, Chicago, IL, for State of IL.

Jason Bruce, Chicago, IL, for Michael Harper.

Justice McNULTY delivered the opinion of the court:

Following a jury trial, defendants Arthur Brown and Michael Harper were each found guilty of two counts of first degree murder and one count of arson. Each defendant was sentenced to natural life imprisonment with Brown's sentence to run concurrently with a seven-year term for arson and Harper's sentence to run concurrently with a 30-year term for arson. Both defendants appeal.

The issues raised by Brown on appeal are: (1) whether the trial court erred in failing to grant his motion for acquittal; and (2) whether the trial court erred in refusing to tender an instruction defining involuntary manslaughter. Defendant Harper raises the issues of: (1) whether the State improperly introduced testimony from the victim's wife into evidence; (2) whether the court erred in allowing the State to introduce photographs of the victims into evidence; (3) whether the State established a sufficient chain of custody for the gas can; (4) whether the prosecutor made improper comments in closing argument; (5) whether defendant Harper was prejudiced by being tried simultaneously with defendant Brown; (6) whether there was sufficient independent evidence to corroborate defendant Harper's confession; and (7) whether defendant Harper's statement was voluntarily given. For the reasons that follow, we affirm defendant Brown's conviction and we reverse defendant Harper's conviction and remand his case for a new trial.

The relevant facts are as follows. The defendants were tried at the same time but by different juries. Sid Malone testified to both juries that he was at 63rd and Vernon at approximately 5 a.m. on May 28, 1988, when he saw a van, with the license plate number GAS 403, park in front of the video shop and a Chinese restaurant. Two people then went across the front of the van and toward the video shop. Malone saw that one of the men carried a gas can. A few minutes later, Malone saw smoke coming from the video store. Malone was unable to identify in court the men he saw in front of the video store.

Chicago Police Officers David Brown and Hester Scott testified that they were on duty headed west on 63rd Street in the early morning hours of May 28, 1988, when they saw smoke coming from Magic Video Store. The officers called the fire department and checked to see if anybody was in the store. At this time, defendant Harper approached the officers and asked them if the Chinese or oriental people got out. Sid Malone then approached Officer Scott and told her that he saw two people exit a van with Gas 403 on the license plates and that one of the men carried a gas can. Defendant Harper identified himself as the owner of the video store and volunteered to accompany the officers to Area One to assist in the investigation.

When Fireman Kevin Brannigan arrived at the store, there was an explosion that knocked him back five feet. After the fire was put out, Brannigan entered the Chinese restaurant located next door and found two dead bodies, their mouths covered with soot which indicated that they had died of smoke inhalation. The fire originated in the video store and the smell of gasoline was in the air of the video store.

Detective Joseph Campbell, an expert in the field of fire origin, determined that the point of origin was the video store and that an accelerant had been used. Campbell left the scene and when he returned he found a two-gallon gasoline can at the corner of the building by an alley. It was Detective Campbell's opinion that the fire had been intentionally set in the rear of the video store with gasoline. Detective Campbell testified that he executed a search warrant on the van with license plates GAS 403 and recovered video tapes in the trunk.

Marshall Levin, the landlord of 420 East 63rd Street, testified that he leased the property to defendant Harper. Levin had no knowledge that defendant Harper had any insurance on the store other than the liability insurance that Levin carried. Levin stated that the video store was more or less current on the rent.

Dr. Yuksel Konakci, a forensic pathologist, testified that the victims died from smoke inhalation and that there were soot deposits on the victims' nostrils and brains.

Alan Osaba, an expert in chemistry, concluded that an accelerant was used. The parties stipulated that William Tyrell, an expert in forensic chemistry, would testify that gasoline was used to start the fire and that the liquid removed from the gasoline can recovered from the scene was in fact gasoline.

Cecil Marvin Hingston testified that he worked at a gas station on Marquette Road on May 28, 1988, and that two men in a white Ford truck purchased gas in a gas can from him at around 5 a.m.

Assistant State's Attorney Joel Whitehouse testified before the Harper jury as to Harper's confession and to the Brown jury as to Brown's confession. Whitehouse read to the Brown jury Brown's statement that he had received a call from Michael Harper in the early morning of May 28, 1988, asking Brown to meet Harper at the video store. Harper informed Brown that he was going to burn down the video store because he could not pay his bills. Harper asked Brown to make the store look as if it had been broken into. While attempting to bend the burglar bars, Harper cautioned defendant about making noise so as not to wake the "chinaman" next door. Brown and Harper then soaked mattresses in gasoline, placed them on the video tapes and set them on fire.

Whitehouse read to the Harper jury, Harper's statement that he drove to the video store at 3 a.m. on May 28, 1988, and told Brown that he would like to burn the tapes because he was not making any money and wanted to collect the insurance. Brown agreed to assist Harper in exchange for some X-rated videos. Harper put some videos in his trunk and then sent Jerome Ford to get gasoline. Brown then bent the burglar bars. The mattresses were placed up against the tapes and the fire was started with gasoline. Defendant Harper knew that the owner of the oriental restaurant next door spent the night in the restaurant at times and that he was in the restaurant on May 28, 1988.

Defendant Brown testified on his own behalf before the Brown jury that he did odd jobs and maintenance work for the stores along 63rd Street and had installed a new front and back door with burglar bars to the video store. On May 28, 1988, at about 3 a.m. Harper called and informed Brown that somebody had tried to burglarize the video store and Harper needed Brown to fix the door. Brown went to the shop and saw that the lock had been broken. Brown secured the door with planks, informed Harper that he would come back the next day to fix the lock, and left. Brown was arrested later that day. Brown stated that the officers denied his request for an attorney and physically abused him, thereby forcing Brown to confess.

Defendant Harper did not testify. Lucy Wilson, defendant Harper's grandmother, testified to the Harper jury that Harper was at her house between 1:30 a.m. and 5 or 5:30 a.m. on May 28, 1988. Roberta Holmes, Harper's mother, testified to both juries that there was no insurance covering the video store, and she testified to the Brown jury regarding the value of the video tapes and the fact that the video tapes had been removed from the store in order to conduct inventory.

Defendant Brown first maintains that the trial court erred when it failed to grant his motion for acquittal after the jury returned a verdict acquitting him of both arson and aggravated arson. During the instruction conference, the trial court decided to give the jury seven verdict forms. Four verdict forms pertained to the murder charges and three pertained to the charges of arson and aggravated arson. The court noted its reason for having one not guilty form relating to both aggravated arson and arson was that it "will prevent the distress the jury may have if they feel he is guilty of one, but not both, or if he is guilty of one, what do they do with the other." Brown's attorney stated that he had no objection to this instruction. The jury then received the following verdict forms pertaining to arson and aggravated arson:

"We, the jury, find the defendant, Arthur Brown, not guilty of either aggravated arson or arson.

We, the jury, find the defendant, Arthur Brown, guilty of aggravated arson.

We, the jury, find the defendant, Arthur Brown, guilty of arson."

During deliberations, the jury sent out a note stating:

"If we can't reach an agreement on aggravated arson, are we allowed not to sign the finding sheets for that charge?"

The trial court informed the jury that they "must sign one of the three verdict forms concerning the fire."

The jury returned a verdict finding defendant Brown guilty of both counts of first-degree murder, and guilty of arson as well as not guilty of either aggravated arson or arson. Defense counsel moved for an acquittal on all counts, since the murder counts were predicated on the commission of the underlying felony of either arson or aggravated arson. The trial court stated to the jury:

"Ladies and gentlemen, perhaps my verdict forms have confused you. Ordinarily, we give guilty and not guilty verdict forms as to each charge. If I did that, if you found--I was worried that if you found the defendant on one charge, that you would have difficulty knowing what to do with the other.... So, I gave you three verdict forms. If you sign only one, doing whatever it...