People v. Phillips

• Decision Date: 18 June 2008
• Docket Number: No. 1-06-1940.,1-06-1940.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Harold PHILLIPS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

890 N.E.2d 1058

383 Ill.App.3d 521

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Harold PHILLIPS, Defendant-Appellant.

No. 1-06-1940.

Appellate Court of Illinois, First District, Third Division.

June 18, 2008.

Rehearing Denied July 16, 2008.

Patricia Unsinn, State Appellate Defender, Jennifer L. Bontrager, Assistant Appellate Defender, Chicago, IL, for Appellant.

Richard A. Devine, State's Attorney of Cook County (James E. Fitzgerald, Mary P. Needham, Michelle Katz, Sheila A. Morrissey, of counsel) Chicago, IL, for Appellee.

Justice GREIMAN delivered the opinion of the court:

Following a jury trial, defendant Harold Phillips was convicted of first degree felony murder and aggravated arson and was sentenced to natural life and 30 years' imprisonment, respectively, the sentences to be served consecutively. On appeal, defendant advances numerous claims pertaining to his convictions and the sentences imposed thereon. Specifically, defendant contends: (1) his felony murder conviction must be vacated pursuant to the same-act doctrine because the same conduct formed the bases for the predicate felony and the felony murder charges; (2) trial counsel provided ineffective assistance when he failed to offer jury instructions on the lesser-included offense of criminal damage to property and failed to introduce, as substantive evidence, a report from state fire investigators concluding that the fire originated in a different location than the location determined by the supervising fire marshall; (3) the trial court erred in refusing to grant defense counsel's motion for a mistrial when one of the State's witness provided testimony that violated the court's prior ruling on a motion in limine; (4) the trial court violated defendant's constitutional right to be present at his trial when it permitted trial counsel to waive defendant's presence at a conference discussing the response to a question posed by the jury during jury deliberations; and (5) his conviction and consecutive sentence for aggravated arson must be vacated because Illinois law does not permit the imposition of a separate conviction and sentence for the predicate offense of felony murder. We affirm in part and vacate in part.

In the early morning hours of March 22, 2002, a three-story residence became engulfed in flames and the fire resulted in the death of three children: Frankie Ramos, age 8, Erica Ramos, age 7, and Samantha Cruz, age 3. In a 23-count indictment, defendant was charged with various crimes in connection with the fatal fire including intentional and knowing murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2002)), aggravated arson (720 ILCS 5/20-1.1(a)(3) (West 2002)), residential arson (720 ILCS 5/20-1.2(a) (West 2002)), and first degree felony murder (720 ILCS 5/9-1(a)(3) (West 2002)) predicated on charges of aggravated and residential arson.

Prior to trial, defendant, through counsel, filed a motion in limine seeking to bar testimony that defendant had committed prior acts of arson, arguing that such testimony would be "extraordinarily prejudicial to the defendant." The State made no objection to defendant's motion. Accordingly, the trial court granted the motion and ordered both parties to admonish their trial witnesses not to reference prior fires.

In addition, the day before trial commenced, the State moved to nol-pros the intentional and knowing murder charges. Accordingly, it chose to proceed solely on the felony murder charges predicated on aggravated and residential arson.

At trial, Elzy Ramos testified that in March 2002, she lived on the second floor of a two-story residence located at 2442 West 25th Street with her mother, Trinidad, her sister Doris, her nephew Danny, and her three children: Frankie, Erica, and Samantha. Elzy's sister Gloria lived with her three children and her boyfriend on the first floor of the residence. On March 21, 2002, at approximately 9:30 p.m., Elzy put her three children to bed in the rear of their second-story residence. Thereafter, Elzy exited her residence at approximately 11:40 p.m., leaving her three children in the care of her mother and sister, who both remained home. Elzy returned to her house in the early morning hours of March 22, 2002, and "seen [sic] [her] house getting burned." She immediately asked her neighbor if her children had gotten out of the house safely and was told that they had been taken to the hospital. Elzy learned that her two daughters had been transported to Mount Sinai Hospital, while her son was taken to St. Anthony's Hospital. When Elzy arrived at Mount Sinai, she was informed that her youngest daughter, Samantha, had died; however, her daughter Erica was still alive and was receiving medical treatment. A detective then took Elzy to St. Anthony's, where she was informed that her son Frankie was also dead. Shortly thereafter, Elzy learned that Erica had also died as a result of the injuries she sustained in the fire.

Doris Ramos confirmed that in March 2002, she had been living with Elzy and Elzy's children at the 2442 West 25th Street residence, which she described as a brick building with a wooden enclosed porch that was affixed to the rear wall of the building. Doris further confirmed that on March 21, 2002, at approximately 11:30 p.m., Elzy instructed her to watch over her three children and left the residence. Doris fell asleep shortly thereafter in her bedroom located near the front of the house. She awoke later that night and smelled smoke. She looked out of her window and saw that the back of her house was engulfed in flames. She immediately informed her mother and her sister Gloria that the house was on fire and exited the residence. Once Doris exited the residence, she realized that Elzy's children were still in the house and informed the members of the fire department that there were children in the burning house. Doris denied that gasoline had been stored in the house or on the porch at the time of the fire, but explained that her family did store kerosene on the top of the porch near the attic. Moreover, Doris testified that their garbage cans were not stored near the house; rather, their City of Chicago issued garbage cans were located in the alley.

Gloria Ramos testified that she went to sleep on March 21, 2002, at approximately 10 p.m., and was awakened when her sister Doris pounded on her door and told her the house was on fire. Gloria looked toward the back of the house and saw that "everything was on fire." Accordingly, Gloria, her live-in boyfriend, and her two daughters exited the residence. Shortly thereafter, her mother realized that Elzy's children were still in the house. Gloria then ran up the stairs but could not enter the residence to rescue her nieces and nephew because it was too hot and there was too much smoke. She informed a firefighter that there were children still in the house. He went up the stairs, but came back down and said he could not find them. Gloria confirmed that her family stored a five-gallon container of kerosene on the porch of their residence along with various kinds of paints. She also confirmed that the family did not store their garbage cans near their residence; rather, the garbage cans were stored in the alley.

Chicago firefighter Edward Negron responded to an alarm concerning the fire at 2442 West 25th Street on March 22, 2002, at approximately 2:45 a.m. When Negron arrived at the scene, he noted that it was "[v]ery windy" and "very cold" and that "a fire was going with heavy smoke." He and his team unfurled their hose and led it through the gangway located between the 2442 and 2440 buildings. They discovered "heavy flame * * * from top to bottom" in the back of the building. Negron did not see anything burning except for the back porch. Notably, he did not see any garbage cans burning in the gangway. Several other fire companies arrived at the scene and it took three or four hours to extinguish the blaze.

Chicago firefighter Richard Koffski was part of the second engine company to arrive at the fire on March 22, 2002. Upon his arrival, Koffski went to the rear of the building "where the body of the fire was." He noted that the entire back porch was ablaze. Koffski, however, did not observe any burning garbage cans near the residence. He assisted in the rescue of the three children, covering Firefighter Herrera as he passed the children out of the window.

Kenneth Herzlich, a freelance video journalist who provides overnight video footage to local television stations, testified that on March 22, 2002, at approximately 2:46 a.m., he was monitoring police and fire radio transmissions, when he heard a transmission about a fire at 2442 West 25th Street. Herzlich drove to that location and saw flames at the back of the residence. He then proceeded to shoot video footage of the fire from locations at the front of the house as well as in the backyard of a neighbor's house, which he then sold to the local television stations. Herzlich's video was published to the jury. In the 10-minute video, the fire is shown from different angles. The video also depicts the efforts by various firefighters to extinguish the blaze and shows firemen carrying two unconscious children from the fire. An attempt by one of the firefighter's to perform CPR on one of the victims is also shown.

Dr. Mitra Kelelkar, the assistant deputy chief medical examiner of Cook County, and a forensic pathology specialist, performed an autopsy on Erica Ramos. In performing the autopsy on Erica, she started with an external examination and noted that Erica had burn marks on her chest, abdomen, as well as her upper and lower extremities. Dr. Kelelkar also saw a number of signs of medical intervention. She then conducted an internal examination and discovered that Erica's respiratory system showed signs of congestion of the laryngeal mucosa, evidence of a burn injury. Based on her findings, Dr. Kelelkar opined that Erica Ramos died after...