People v. Palmer

• Decision Date: 27 February 1986
• Docket Number: 84-719,Nos. 84-718,s. 84-718
• Citation: 95 Ill.Dec. 681,490 N.E.2d 154,141 Ill.App.3d 234
• Parties: , 95 Ill.Dec. 681 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Walter PALMER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 154

490 N.E.2d 154

141 Ill.App.3d 234, 95 Ill.Dec. 681

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Walter PALMER, Defendant-Appellant.

Nos. 84-718, 84-719.

Appellate Court of Illinois First District, Fourth Division.

Feb. 27, 1986.

Steven Clark, Deputy Defender, Michael J. Pelletier, Asst. Appellate Defender, Chicago, for defendant-appellant.

Richard M. Daley, State's Atty. for Cook Co., Chicago (Joan S. Cherry, Inge Fryklund, Daniel R. Carter, of counsel), for plaintiff-appellee.

JOHNSON, Justice:

Defendant, Walter Palmer, was convicted of aggravated arson (Ill.Rev.Stat.1983, ch. 38, par. 20-1.1(a)(1) & (3)) and aggravated battery (Ill.Rev.Stat.1983, ch. 38, par. 12-4(a)), following a bench trial in the circuit court of Cook County. On appeal, defendant contends that (1) section 20-1.1(a)(1) of the Criminal Code is unconstitutional and (2) the trial court abused its discretion by allowing his attorney to represent him while under a per se conflict of interest, thus depriving him of his right to effective assistance of counsel.

We reverse and remand.

Testimony at trial adduced the following facts. Defendant and his wife, Diana Palmer, lived in an apartment at 717 Seward, Evanston, Illinois. They fought on the evening of August 26, 1983. Although they disagree as to the reasons for and extent of the fight, they agree that defendant struck his wife several times. Diana received a cut lip, bruises to her chest and stomach, and injury to a tooth. Police took her to the hospital where she received three stitches to close the cut on her lip. After leaving the hospital, Diana spent the remainder of the night with a neighbor. After the fight, defendant left the apartment and spent the night sleeping in his car parked in front of a friend's place of employment. At approximately 8:30 the following evening (August 27), Diana returned to her apartment for a few minutes and then left to return to her neighbor's apartment.

The record further shows that a fire occurred in the Palmers' apartment building on the night of August 27 at approximately 10:15. Four Evanston fire fighters were injured while extinguishing the blaze. An investigator for the Evanston Fire Department determined that the fire began in defendant's apartment. He further determined that the fire was neither natural nor accidental; rather, an incendiary caused it. Evanston police arrested defendant on August 28, 1983, on charges of aggravated arson and aggravated battery.

The bench trial began on February 6, 1984. The record shows that before trial began, defendant's attorney, Neil Kauffman, asked leave to withdraw as defense counsel due to a conflict of interest. He explained to the court that Diana, who retained him as defendant's attorney, was the complaining witness and a potential State's witness against defendant. Kauffman further explained that defendant believed that Kauffman would not represent defendant adequately because Kauffman had only received a portion of the fee upon which he and Diana had agreed. Defendant himself repeated Kauffman's concerns to the court and stated that he did not want Kauffman to represent him.

The trial court denied Kauffman's motion to withdraw, ruling that Kauffman would adequately represent defendant with the amount of money that Diana had paid him. The court ruled also that no conflict of interest existed in Kauffman's representation of defendant. Following trial, on February 10, 1984, the court found defendant guilty as charged and sentenced him to four concurrent 30-year prison terms for the aggravated arson under section 20-1.1(a)(3) of the Criminal Code (Ill.Rev.Stat.1983, ch. 38, par. 20-1.1(a)(3)) and a 30-year term for the aggravated arson under subsection (a)(1) of the statute, the sentences under subsections (a)(1) and (a)(3) to run concurrently. The trial court further sentenced defendant to a 5-year term for aggravated battery, to run consecutively with his sentences for aggravated arson, for a total of 35 years. Defendant appeals.

I

Defendant first contends that we should reverse his convictions and sentences of four concurrent 30-year terms under section 20- 1.1(a)(3) of the Criminal Code because the Illinois Supreme Court declared it unconstitutional in People v. Wick (1985), 107 Ill.2d 62, 89 Ill.Dec. 833, 481 N.E.2d 676.

Arson is a Class 2 felony that is defined in section 20-1 of the Code as follows:

"Sec. 20-1. Arson. A person commits arson when, by means of fire or explosive, he knowingly:

(a) Damages any real property, or any personal property having a value of $150 or more, of another without his consent; or

(b) With intent to defraud an insurer, damages any property or any personal property having a value of $150 or more.

Property 'of another' means a building or other property, whether real or personal, in which a person other than the offender has an interest which the offender has no authority to defeat or impair, even though the offender may also have an interest in the building or property." Ill.Rev.Stat.1983, ch. 38, par. 20-1.

Aggravated arson, however, is a Class X felony and is defined in section 20-1.1 of the Code, in part, as follows:

"Sec. 20-1.1. Aggravated Arson. (a) A person commits aggravated arson when by means of fire or explosive he knowingly damages, partially or totally, any building or structure, including any adjacent building or structure, and (1) he knows or reasonably should know that one or more persons are present therein or * * * (3) a fireman or policeman who is present at the scene acting in the line of duty, is injured as a result of the fire or explosion." Ill.Rev.Stat.1983, ch. 38, par. 20-1.1.

Our supreme court described the problem with subsection (a)(3) of the aggravated arson statute as follows:

"The unlawful purpose that is required for an act to constitute simple arson--that the offender knowingly damage by fire either property belonging to another without his consent, or any property with the intent to defraud an insurer--is not required for aggravated arson." People v. Wick (1985), 107 Ill.2d 62, 64, 89 Ill.Dec. 833, 834-35, 481 N.E.2d 676, 677-78.

The Wick court unanimously held that subsection (a)(3) of the aggravated arson statute violated due process and, therefore, was unconstitutional. The court found that "the statute as presently constituted sweeps too broadly by punishing innocent as well as culpable conduct in setting fires." (107 Ill.2d 62, 66, 89 Ill.Dec. 833, 835, 481 N.E.2d 676, 678.) The court reasoned that an innocent person who lawfully set fire to a building, where a fireman or policeman was injured at the scene as a result of the fire, could be convicted of a Class X felony under subsection (a)(3) of the statute. 107 Ill.2d 62, 66, 89 Ill.Dec. 833, 481 N.E.2d 676.

Surprisingly, the State asks us not to follow Wick. In the State's second supplemental brief, it concluded that "[t]he Wick case is not well reasoned and this court should not follow its logic." This, of course, we cannot do. The State has cited no authority, nor, we surmise, could it cite any authority, for the proposition that we can ignore a recent decision of the Illinois Supreme Court. It is elementary that where our supreme court has declared Illinois law on any point, that court alone can overrule and modify its previous opinion; such a decision binds all other judicial tribunals in this State and it is the duty of those tribunals to follow such a decision in similar cases. (Agricultural Transportation Association v. Carpentier (1953), 2 Ill.2d 19, 27, 116 N.E.2d 863, 867; Stopka v. Lesser (1980), 82 Ill.App.3d 323, 326, 37 Ill.Dec. 779, 781, 402 N.E.2d 781, 783.) Based on Wick, we reverse defendant's convictions and sentences of four concurrent 30-year terms under section 20-1.1(a)(3) of the Criminal Code.

II

Defendant next contends that we should reverse his conviction and sentence under subsection (a)(1) of the aggravated arson statute (Ill.Rev.Stat.1983, ch. 38, par. 20-1.1(a)(1)). He argues that this subsection is unconstitutional for the same reasons that our supreme court declared subsection (a)(3) unconstitutional in Wick. In response, the State claims that defendant lacks standing to challenge the statute's validity.

To have standing to challenge the constitutionality of a criminal statute, a defendant must bring himself within the class directly aggrieved by the alleged unconstitutionality unless the alleged defect is so pervasive as to render the entire act invalid. (People v. Mayberry (1976), 63 Ill.2d 1, 6, 345 N.E.2d 97, 100; People v. Tellery (1980), 87 Ill.App.3d 298, 300, 42 Ill.Dec. 537, 539, 409 N.E.2d 32, 34.) Although the defect that our supreme court found in Wick runs through the aggravated arson statute, only subsection (a)(1) is before us in the instant case. Defendant must, therefore, bring himself within the class directly aggrieved by the enforcement of subsection (a)(1).

The record shows that the trial judge made no factual finding as to defendant's culpable intent. The aggravated arson statute did not require him to do so. Defendant suffered the direct injury of incarceration as the result of the provision's enforcement. We hold that defendant has standing to challenge the validity of subsection (a)(1) of the statute.

In response to defendant's argument that subsection (a)(1) of the aggravated arson statute is unconstitutional, the State claims that the separate element of culpable intent is unnecessary. The State contends that the very act of setting fire to or using explosives in a building, knowing that one or more persons are in the building, presumes culpability. The State further argues that the inherently hazardous nature of the act, the knowledge that persons are present, and the foreseeable consequences of the act justified the legislative assignment of culpability to the act itself.

The Wick court rejected this argument in reviewing subsection (a)(3). The court held...