People v. Smith

• Decision Date: 06 December 1993
• Docket Number: No. 2-91-1427,2-91-1427
• Citation: 253 Ill.App.3d 443,624 N.E.2d 836
• Parties: , 191 Ill.Dec. 648 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Nancy Jean SMITH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 836

624 N.E.2d 836

253 Ill.App.3d 443, 191 Ill.Dec. 648

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Nancy Jean SMITH, Defendant-Appellant.

No. 2-91-1427.

Appellate Court of Illinois,

Second District.

Dec. 6, 1993.

Robert Steven Wilson, Sycamore, for Nancy Smith.

Dennis Schumacher, Ogle County State's Atty., Oregon, William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Gregory L. Slovacek, States Attys. Appellate Service Com'n, Elgin, for People.

Justice McLAREN delivered the opinion of the court:

The defendant, Nancy Jean Smith, was convicted of one count of arson (Ill.Rev.Stat.1989, ch. 38, par. 20-1(a) (now 720 ILCS 5/20-1(a) (West 1992))), following a jury trial in the circuit court of Ogle County. She was sentenced to three years in prison for the Class 2 felony. (Ill.Rev.Stat.1989, ch. 38, par. 1005-8-1(a)(5) (now codified, as amended, at 730 ILCS 5/5-8-1(a)(5) (West 1992)).) The defendant claims on appeal that: (1) the State did not prove its case beyond a reasonable doubt; (2) the testimony of the State's arson expert should have been stricken or a mistrial granted because of the testimony; (3) the testimony of a witness who allegedly was coached during trial by a spectator should have been stricken or a mistrial granted; and (4) a mistrial should have been granted when the trial court became aware that the State's expert had allowed the destruction of allegedly exculpatory or impeaching evidence. For the following reasons, we affirm.

On March 17, 1990, fire broke out at the Kopy Kat Restaurant in Oregon, Illinois, some time shortly after the restaurant closed for the evening. The defendant, a waitress at the establishment, was charged on June 5, 1990, with one count of arson.

At trial, several of the defendant's co-workers at the Kopy Kat testified for the State that defendant had been at the restaurant at closing time, 11 p.m. Terry Duncan, the arson investigator for the firm that insured the Kopy Kat, testified that he interviewed the defendant shortly after the fire and was told by her that she was the last person to leave the restaurant the night of the fire. The defendant did not testify.

Aimee Manis, a co-worker of the defendant, testified that she left the restaurant between 11:05 and 11:15 p.m. and walked about a block away. She then looked back toward the restaurant and noticed that "the only light that was on in there was by the cooking area and Nancy Smith (the defendant) was in there." Manis said that defendant's car was parked in front of the restaurant. Manis said she then made a telephone call to her boyfriend from a nearby phone booth that lasted four minutes. Another witness testified that the call was made at 11:10 p.m.

After making the call, Manis said she then walked back in front of the restaurant and this time the restaurant was completely dark. She looked through the restaurant's large picture windows from two to three feet away and saw no one inside. She did not see or smell any smoke at that time, nor did she hear any noises from inside the restaurant. She said defendant's car was still parked in front of the restaurant. Manis said she then continued to walk past the restaurant and stopped at the end of the block for a traffic light. At that time, just moments after walking past the restaurant, the defendant pulled up in her car and stopped at the traffic light. Manis said that despite having a green light at the intersection, the defendant stopped her car, had the interior light turned on and "was messing with something" in or between the car's front seats. Manis was not sure what the defendant was doing and saw nothing else in the car. Manis said the defendant then drove away.

The chief of police of Oregon, Thomas Miller, testified that at 11:25 p.m. he noticed "a white, foggish-type material" that turned out to be smoke near the Kopy Kat. The fire department was immediately summoned and arrived about five minutes later. The restaurant was well engulfed in flames at that time.

Duncan, who was qualified by the trial court as an arson expert, testified for the State that, in his opinion, the fire was incendiary (started by a human) and did not start accidentally. Duncan believed that the fire started on the kitchen floor and that an accelerant (some type of fuel) was poured onto the floor. Duncan based his conclusions on having discovered deep charring patterns, or "alligatoring," on the floor of the kitchen and his belief that only a deliberately set fire could have erupted so quickly from the time the last employees left the restaurant and the "fast, hot fire" was detected. No trace of accelerant was detected by laboratory tests. Duncan testified that he conducted a thorough investigation of the fire scene and eliminated all other possible causes and sources of the fire.

At the close of the State's case, the defendant moved for a directed verdict, which was denied by the trial court. The defendant, in her case in chief, produced two arson experts, the first of whom directly refuted the State's expert. John Campbell testified that, based on an examination of the restaurant after the fire and laboratory tests, the fire was not the result of arson but had started accidentally. He testified that the fire started slowly between 9 and 10 on the night in question in a concealed space above the kitchen ceiling. Campbell said the fire began when wooden support struts near a recently installed furnace caught fire because they had been improperly installed too close to a furnace vent pipe in the kitchen.

One of the State's witnesses, Mary Jergens, testified that she smelled something burning at about 9:30 the evening of the fire and mentioned it to others at the restaurant. The others testified that they did not smell anything burning. The defendant's second arson expert testified that he found several electrical code violations at the restaurant.

The jury returned a verdict of guilty. The defendant was sentenced to three years in prison. Her motions for a new trial and judgment notwithstanding the verdict were both denied following a hearing.

The defendant first argues that the State failed to prove her guilty beyond a reasonable doubt. In an arson prosecution, the State must prove that the defendant damaged the property of another by means of fire. (Ill.Rev.Stat.1989, ch. 38, par. 20-1 (now 720 ILCS 5/20-1 (West 1992)).) A criminal conviction will be affirmed if " 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (Emphasis in original.) (People v. Collins (1985), 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573). The court in Collins also noted that " '[o]nce a defendant has been found guilty of the crime charged, the factfinder's [sic] role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.' " (Emphasis in original.) (Collins, 106 Ill.2d at 261, 87 Ill.Dec. 910, 478 N.E.2d 267, quoting Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573). Given these principles, the conviction in the present matter must be affirmed.

It was uncontested that the Kopy Kat Restaurant was damaged by fire and that the restaurant was not the defendant's property. The only issues were whether the fire was accidentally or intentionally started and, if intentionally set, whether defendant was the person who started it. The case became a battle of experts.

The State's expert, Terry Duncan, detailed how he traced the source of the fire by looking for certain "pointers," such as burn and char patterns. He considered all possible causes and starting points for the fire and concluded that it started on the kitchen floor when an accelerant was poured onto it and ignited. Defendant's primary arson expert, John Campbell, also undertook a thorough investigation of the fire scene and conducted tests. He was convinced the fire started accidentally and could not have started in the manner that Duncan believed. In short, the two experts, examining roughly the same information, arrived at opposite conclusions. The jury chose to believe the State's version. Viewing the evidence in the light most favorable to the State, any rational trier of fact could conclude that the fire was intentionally set.

The jury could also rationally conclude that defendant was the person who started the fire. The State's only evidence on this point was circumstantial: defendant was seen at the restaurant shortly before the fire began. However, the elements of the crime of arson may be shown by circumstantial evidence. People v. Hanes (1990), 204 Ill.App.3d 35, 38, 149 Ill.Dec. 379, 561 N.E.2d 1075.

The State produced ample evidence that persons other than defendant were at the restaurant shortly before closing, but it was uncontroverted the defendant was the last person in the restaurant that night. She was there within 10 to 15 minutes of the time the fire was discovered. While the jury might have concluded that someone other than defendant started the fire, it was not an irrational conclusion that defendant had started the fire. We note that, in criminal cases based on circumstantial evidence, it is no longer necessary for the trier of fact to exclude every reasonable hypothesis of innocence before finding a defendant guilty. (People v. Pintos (1989), 133 Ill.2d 286, 291, 139 Ill.Dec. 832, 549 N.E.2d 344.) A trier of fact may convict if it is satisfied of the defendant's guilt beyond a reasonable doubt. (Collins, 106 Ill.2d at 261, 87 Ill.Dec. 910, 478 N.E.2d 267.) Under this standard, "[a] criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt." Collins, 106 Ill.2d at 261, ...