People v. West

                               NO. 5-96-0095

                                  IN THE 

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,)  Appeal from the 
                                    )  Circuit Court of 
     Plaintiff-Appellee,            )  Clinton County.
                                    )  
v.                                  )  No. 92-CF-13
                                    )
DWIGHT F. WEST,                     )  Honorable
                                    )  William R. Todd, 
     Defendant-Appellant.           )  Judge, presiding.  
_________________________________________________________________

     JUSTICE CHAPMAN delivered the opinion of the court:  
     On August 8, 1990, a fire destroyed the Fash-n-Fab buildings
owned by defendant Dwight West.  A firefighter was injured while
attempting to extinguish the blaze.  Following a bench trial,
defendant was convicted of five counts of arson and one count of
aggravated arson, and he was sentenced to four and six years'
imprisonment on the respective charges.  Defendant argues that: 
(1) the court erred in admitting into evidence photographs of the
crime scene, (2) the court's findings of fact are not supported by
the evidence, and (3) the court improperly conducted deliberations
prior to defendant resting his case.  We affirm.
     Defendant's first argument is that the court erred in
admitting crime-scene photographs taken on August 13 and 14, 1990. 
These photographs, marked as People's Exhibits 12 to 56, primarily
depicted the floors of the Fash-n-Fab buildings.  Defendant argues
that it was improper to admit these photographs because the State
failed to lay a proper foundation for their introduction. 
Defendant argues that no evidence was produced as to the condition
of the floors subsequent to the August 8, 1990, fire and that the
court therefore erred in allowing them into evidence.  The State
argues that defendant waived this argument because he failed to
object in a timely manner.  Before addressing the substance of
defendant's argument, we will address the waiver issue.
     In general, to preserve an issue for review, a defendant must
object at trial and include the issue in a written posttrial
motion.  People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988). 
In this case, defendant did object during trial to the use of the
photographs marked as People's Exhibits 12 to 56, and he objected
in a posttrial motion.  The State argues that defendant's objection
at trial was not made the first time the photographs were
identified and that therefore it was untimely.  
     The issue is not whether a party objects to evidence when it
is first identified or referred to, but the issue is instead
whether an objection is made when the evidence is offered.  In this
case, defendant did object to the photographs at trial, both while
they were being referred to by various witnesses and when they were
offered into evidence.  In addition, in a timely posttrial motion
defendant objected to the use of the photographs.  Under these
circumstances, we find that defendant did not waive this issue on
review.
     We now turn to defendant's first argument, that the court
erred in admitting People's Exhibits 12 to 56, photographs of the
crime-scene floor.  Defendant argues that no proper foundation was
laid for their admission.  
     In general, a photograph is admissible into evidence if it is
identified by a witness who has personal knowledge of the
photographed subject and testifies that the photograph is a fair
and accurate representation of the subject at the relevant time. 
Casson v. Nash, 54 Ill. App. 3d 783, 795, 370 N.E.2d 564, 573
(1977), aff'd, 74 Ill. 2d 164, 384 N.E.2d 365 (1978).  A decision
to admit photographic evidence is within the trial court's
discretion and will not be reversed absent an abuse of discretion. 
People v. Greer, 79 Ill. 2d 103, 117, 402 N.E.2d 203, 209 (1980). 
     In this case, Kim May, an investigator with State Farm
Insurance Company, was called to the scene of the fire on August
10, 1990, two days after the fire.  May returned to the site on
August 13 and 14, 1990.  During his investigation of the fire and
the excavation of the Fash-n-Fab building, May took the
photographs.  May testified that the photographs, taken on August
13, 1990, fairly and accurately depicted the scene as he observed
it on August 10, 13, and 14, 1990. 
     Defendant argues that the State did not show that the
unsecured crime scene had not been tampered with prior to May's
examination of the site on August 10.  In considering this argument
after defendant's objection, the court noted:
     "May saw the premises on Friday the 10th, for the first time
     ***.  Then he came back on Monday the 13th and was there again
     on the 14th.  Photographs were taken.  You have through
     cross[-]examination elicited the fact from various witnesses
     that the premises were not secured in any way nor could they
     have been [and] that there were no guards there except for the
     suggestion perhaps from one witness that there might have been
     a yellow tape around the premises.  Others have said they were
     not aware of any.  It's true that the testimony has been from
     *** May that debris was removed from the premises [and] that
     the washing down was made to determine burn patterns.  Now,
     you are suggesting that an improper foundation has been laid
     because the State has failed to negate the possibility of any
     other person other than those who have testified as being upon
     the premises.
          First, with reference to the burn patterns and burned
     areas of the various structures, it can hardly be suggested,
     I think, that there has been a change or moving of the
     structure that remains standing after the fire and the intense
     heat.  It's true that there is a possibility that certain
     objects burned [and that] objects that might have been in the
     debris on the floor and remained may have been moved from time
     to time by walking or posing, but I don't think that there is
     sufficient basis for this Court to hold that no foundation has
     been laid for the use of these photographs ***."
     We hold that the court thoroughly considered this issue and
correctly found that a proper foundation had been laid for the
photographs.  May testified that they were fair and accurate
representations of what he and the fire chief saw as they inspected
the building soon after the fire.  The fire occurred on August 8,
1990, around 5:30 p.m.  Fire Chief Roger Sutherland testified that
the fire was brought under control within 45 minutes to one hour
but that it took three to four hours to extinguish it completely.
The investigation of the building was suspended until August 9, due
to darkness.  On August 9, Chief Sutherland returned to the scene
and attempted to remove debris from the building, but due to the
amount of the debris, he elected to suspend operations until August
10, when State Farm Insurance investigators could assist him. 
There was nothing to contradict May's testimony that the
photographs were fair and accurate depictions of the building as he
had observed it on August 10, 13, and 14.
     The fact that the photographs were taken two days after the
fire, rather than immediately after the fire, goes to the weight of
the evidence, not its admissibility.  Burke v. Toledo, Peoria &
Western R.R. Co., 148 Ill. App. 3d 208, 213-14, 498 N.E.2d 682, 686
(1986); see also Illinois State Toll Highway Authority v. Grand
Mandarin Restaurant, Inc., 189 Ill. App. 3d 355, 360, 544 N.E.2d 1145, 1148 (1989).  In this case, it was explained that due to the
extensive damage it was impossible to excavate and take the photos
immediately after the fire.  The absence of any showing or strong
suggestion that there was any tampering to the areas depicted in
the photographs leads us to conclude that the court did not err in
admitting them.  See Burke, 148 Ill. App. 3d 208, 498 N.E.2d 682. 
     In bench trials, judges are only to consider the proper
evidence.  People v. Todd, 154 Ill. 2d 57, 69, 607 N.E.2d 1189,
1195 (1992).  In this case, during cross-examination, defendant's
counsel repeatedly pointed out problems with the photographs,
problems which defendant argues rendered the photographs
inadmissible.  The lack of weight that should have been afforded
the photographs, according to defendant, was therefore brought to
the court's attention.  We, therefore, affirm the court's finding
that the State laid a proper foundation for People's Exhibits 12 to
56.   
     Defendant's second argument is that the court's findings of
fact are not supported by the evidence.  Defendant argues that the
court erred in giving more credibility to the testimony of witness
Curt Swartzlander than to that of witnesses Chris Connaway and John
Nelson.  Defendant also argues that the court erred in accepting at
face value the testimony of the State's expert Clyde Goin, because
his investigation of the fire occurred more than four years after
the fire.
     A reviewing court may disturb the trial court's finding as to
credibility only when the evidence is so improbable or
unsatisfactory as to raise a reasonable doubt of guilt.  People v.
Bailey, 265 Ill. App. 3d 262, 271, 638 N.E.2d 192, 198 (1994).  A
reviewing court will not substitute its judgment for that of the
trial court when the evidence is merely conflicting.  Bailey, 265
Ill. App. 3d at 271, 638 N.E.2d  at 198.  In a bench trial, to
resolve any conflicts in the evidence, the trial judge must
determine the credibility of witnesses, weigh the evidence, and
draw reasonable inferences therefrom.  Bailey, 265 Ill. App. 3d at
271-72, 638 N.E.2d  at 198.  In a challenge to the sufficiency of
the evidence, the function of the reviewing court is not to retry
a defendant but rather to carefully examine the evidence,
considering the fact that the trier of fact observed the witnesses
firsthand.  Bailey, 265 Ill. App. 3d at 271-72, 638 N.E.2d  at 198. 
     Curt Swartzlander testified that on August 8, 1990, sometime
between noon and 5 p.m., he noticed that the sky was full of black
smoke from one of the Fash-n-Fab buildings.  Swartzlander, a
trained volunteer fireman, testified that as he turned into the
parking lot, a light tan or brown Buick car was coming out of the
parking lot.  Swartzlander testified that he assumed that the
driver was going to call the fire department, and he kept an eye on
the driver to ensure that was done.  According to Swartzlander, the
driver pulled into the Country Fair Store parking lot and entered
the store.  A few minutes later the fire department came to the
scene.
     Swartzlander testified that once he saw the driver enter the
store, Swartzlander walked around the north Fash-n-Fab building. 
He testified that he was unable to see in the building, however,
because the entire building was full of smoke.  Swartzlander
testified that he could not see any flames, only black smoke.  
     Swartzlander testified that shortly after the fire department
arrived, defendant approached him and introduced himself as Mr.
West.  They spoke briefly about the fire, and Swartzlander
expressed concern that someone might be inside.  Swartzlander
testified that defendant told him that the fire happened right at
closing time.  Swartzlander testified that he asked defendant if he
was the driver of the Buick that had previously pulled out of the
Fash-n-Fab parking lot into the Country Fair parking lot, and
defendant said that he was.  
     On cross-examination, Swartzlander admitted that he was not
sure about the time when he first saw the smoke and saw defendant's
car leaving the Fash-n-Fab parking lot.  Swartzlander testified
that the sun was in the west, getting ready to set, when he first
helped the fire department put out the fire.  Chris Connaway
testified that on August 8, 1990, he worked for a car dealership
about one block from the scene of the fire.  Connaway was familiar
with defendant prior to the fire and in fact had sold him the tan
car he was driving the day of the fire.  Connaway testified that at
about 5:25 p.m. he drove past the Fash-n-Fab and noticed
defendant's car alone in the parking lot but did not see any smoke
or fire.  Connaway testified that five to ten minutes later he
drove past the building again and noticed that defendant's car was
gone.  Connaway testified that he saw no other cars in the parking
lot and that he did not see any smoke or flames coming from the
buildings.
     John Nelson testified that he lived about 250 to 300 feet from
the Fash-n-Fab buildings.  Nelson testified that on August 8, 1990,
he drove past the buildings about 5:30 p.m.  According to Nelson,
as he drove past the buildings, he observed grey smoke coming out
of a vent in the center building.  Nelson testified that he drove
home, alerted the police department about the fire, and then drove
back to the Fash-n-Fab.  Nelson was concerned that someone was in
the building, because it was closing time.
     Nelson testified that upon his return to the fire scene he
looked into the north building but did not see any smoke.  Nelson
testified that he could see through the breezeway and saw
"flickering" in another building.  Nelson testified that he did not
see actual flames, only a flicker, "like light flashing on the
wall."  
     Nelson testified that he saw a car drive into the parking lot
and he saw an upset man, later determined to be defendant, get out
of the car.  Nelson testified that he yelled to defendant not to go
into the buildings.  Sometime later the fire department arrived on
the scene.
     In reviewing the facts of the case before making its ruling,
the court stated:
          "Now, Mr. Swartzlander, it's true he wasn't too sure, and
     as Mr. Pike said on his direct examination[,] he wasn't too
     sure about the time.  It may have been early in the afternoon
     when this occurred but that doesn't detract from the fact that
     it can be without doubt that he was there.  He was on the
     scene.  He saw the fire being fought by the fire fighters.  He
     assisted immediately in fighting the fire when he arrived.  He
     also had training in that area.  Now, it's argued by defense
     counsel that the [testimony] of Mr. Swartzlander should be
     considered incredible by this Court as trier of fact because
     from some of the time frame there may be some differences in
     the testimony of the Nelsons and the car salesman and Mr.
     Swartzlander.  However, with the testimony that I have just
     recounted[,] we are pretty well locked into a time frame in
     this case."  
     We hold that the court's findings of fact are supported by the
evidence.  The resolution of any conflict in witnesses' testimony
is the function of the trial court.  People v. Hill, 272 Ill. App.
3d 597, 603, 650 N.E.2d 558, 564 (1995).  When faced with
contradictory evidence, reviewing courts will not substitute their
assessment of the credibility of the witnesses for that of the
trial judge, because the judge stands in the best position to weigh
the credibility of all of the witnesses.  Hill, 272 Ill. App. 3d at
604, 650 N.E.2d  at 564.  
     In this case, the court believed Swartzlander's testimony that
he saw defendant leave the Fash-n-Fab parking lot as smoke was
seeping out of the building.  The court found that the fact that
Swartzlander did not know the exact time when this occurred was of
little substance, because the time frame had been established by
other witnesses.  Even Swartzlander testified that defendant told
him the fire started about the company's closing time.  We hold
that the court's findings of fact were supported by the evidence
and were, therefore, not manifestly erroneous.  Hill, 272 Ill. App.
3d 597, 650 N.E.2d 558.
     Defendant's final argument is that the court improperly
conducted deliberations prior to defendant resting his case.  The
State argues that defendant has waived this argument by failing to
object at trial.  In general, to preserve an issue for review, a
defendant must object at trial and include the issue in a written
posttrial motion.  People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988).  In this case, defendant did raise this issue in his
posttrial motion, but he had failed to raise the issue at trial. 
We give great weight to the fact that this was a bench trial.  We
can understand why, during the closing moments of the trial before
the court rendered its decision, defendant's counsel did not want
to raise an issue regarding the court's comments.  We would not
expect, or require, a party to take that risk.  We note that
defendant did raise the issue at the first opportune moment, that
being in his posttrial motion.  We, therefore, do not find that
defendant waived this argument.  
     Defendant argues that the court deliberated prior to the close
of defendant's case and, therefore, failed to keep an open mind
until all of the evidence had been presented.  Defendant points to
the court's remarks following the close of the case:
     "I hasten to advise all of you that this Court has taken
     copious notes during the course of the trial.  I am into the
     tenth yellow pad here today and it's my practice, and it was
     followed in this case, to review the evidence as we go along,
     and I can tell you that this weekend I spent literally seven
     hours at least in going through my notes in this case in
     addition to looking at exhibits, and I can assure you that
     this case was not far from my mind during any part of the
     weekend since we parted company Friday evening.  So I say that
     simply so those who might be in attendance think that the
     Court maybe would take this case under advisement for a period
     of time before ruling, and I want you to know that I have in
     essence done that."
     The State points out that following the passage highlighted by
defendant, the court continued, acknowledging, "There was very
little evidence introduced here today that wasn't before the Court
on Friday."  After a detailed analysis of the facts, the court
found defendant guilty of five counts of arson and one count of
aggravated arson.
     A defendant has a constitutional right to an unbiased, open-
minded trier of fact.  People v. Johnson, 199 Ill. App. 3d 798,
806, 557 N.E.2d 565, 570 (1990).  "[P]rejudgment is the antithesis
of a fair trial" because a defendant is entitled to a fair and
impartial trial before a court which does not render judgment until
after trial.  Johnson, 199 Ill. App. 3d at 806, 557 N.E.2d  at 570,
citing People v. McDaniels, 144 Ill. App. 3d 459, 462, 494 N.E.2d 1275, 1278 (1986).  In order to show bias or prejudice by the
court, however, the record must show that there was an active
personal animosity, hostility, ill will, or distrust toward the
defendant.  Johnson, 199 Ill. App. 3d at 806, 557 N.E.2d  at 570. 
That is not the case here.
     In this case, the court stated that it had been reviewing its
voluminous notes as the trial progressed, rather than waiting until
the end of trial to begin reviewing them.  The court did not state
and did not give any indication, prior to the close of the case,
that it had made any decision as to defendant's guilt.  We
therefore hold that the court did not err in reviewing its notes
prior to the close of the case.  Indeed, we find that the court's
actions were diligent and proper.
     For the foregoing reasons, we affirm the judgment of the
circuit court.

     Affirmed.

     HOPKINS, J., concurs.

     PRESIDING JUSTICE WELCH, dissenting:
     I dissent because I find that, even viewing all the evidence
in the light most favorable to the prosecution, as I must, no
rational trier of fact could have found the defendant guilty beyond
a reasonable doubt.  People v. Moore, 171 Ill. 2d 74, 95 (1996).
The State has failed to present sufficient satisfactory evidence
not only that the fire in this case was intentionally set with
gasoline serving as an incendiary agent but that it was set by the
defendant. 
     The State posits that the fire was intentionally set with
gasoline.  The record contains no eyewitness testimony concerning
the cause and origin of the fire.  Numerous wood, tile, and carpet
samples taken from various locations in the buildings were
subjected to laboratory analysis that proved negative for the
presence of gasoline.  No gasoline containers or other vessels
suitable for the storage and application of accelerants were found
at the fire scene.  Therefore, the State had to rely exclusively on
expert testimony to prove its case.  Chief among the State's expert
witnesses was Clyde Goin, an arson investigator employed by the
Office of the Illinois State Fire Marshall, who opined that the
fire had multiple origins in the north, middle, and south buildings
and was caused by a poured accelerant consisting of between one
quart and one gallon of gasoline in the north building, one-half
gallon to two gallons of gasoline in the middle building, and one
quart of gasoline in the south building.
     Neither party quarrels with Goin's general expertise in the
field of arson investigation, nor do I.  What I do quarrel with,
and what the record bears out, is the inadequate investigative
technique Goin employed in reaching his conclusions. Goin
acknowledged on cross-examination that before settling on a poured
accelerant as the cause of a fire, a prudent arson investigator
must eliminate all other causes by taking into account such factors
as the effects of flashover, air flow, hot gases, melted plastics,
and building collapse.  Yet in formulating his conclusions, Goin
was unaware of and did not take into account the following:  the
building contents and their locations, the manner in which the fire
debris was excavated from the buildings, the fire loads of the
buildings, the composition of the roofing material that collapsed
in the middle building, the condition of the buildings' electrical
system, the condition of the buildings' natural gas system, the
composition of the ceilings in the north and middle buildings, the
contents of the attic in the middle building, the contents stored
above the mezzanine in the south building, whether there was
padding under the carpeting and, if so, the composition of the
padding, whether the windows were open or closed at the time of the
fire, the specific type of tongue-and-groove wood flooring in the
middle building, and the ignition temperatures of specific types of
plastics.
     Several days after the fire, two insurance investigators and
two local firemen acting as laborers excavated the fire scene by
removing large debris from the buildings.  Next, they shoveled away
the smaller debris by hand.  Finally, the buildings were subjected
to a high-pressure fire hose that washed out any remaining debris.
The photographs marked as People's Exhibits 12 to 56, upon which
Goin relied, were taken during this process.  Goin testified that
various burn patterns depicted in these photographs were caused by
the ignition of poured gasoline.  This testimony is flawed,
however, because Goin did not take into account and eliminate other
factors that could have influenced the shape, size, and direction
of the observable burn patterns on the carpeting and flooring.
Objects such as tables and display cases, for example, located in
the buildings could have shielded or deflected radiant heat,
leaving the carpeting or flooring below them free of charring or
fire damage.  Falldown could have caused some of the burn patterns.
The middle roof, for example, collapsed into the building, bringing
with it petroleum-based asphalt roofing shingles that can liquefy
under intense heat and burn.  The evidence established that many
items for retail sale located in the buildings had plastic
components or were packed with plastic or styrofoam.  These
substances may have melted and pooled on the floor due to the hot
fire, thereby creating or influencing burn patterns.  Finally, the
burn patterns could have been influenced by the excavation
techniques used by the insurance investigators, who used shovels to
scrape away debris, including carpeting and padding, down to bare
floor.  The size and shape of the burn patterns represented in the
photographs would not necessarily have mirrored their actual size
and shape before the excavation process began. 
     Goin acknowledged on cross-examination that a poured
accelerant when ignited will leave a doughnut-shaped burn area.
This is because the edge of the accelerant pool burns hotter where
its vapors meet with oxygen, while the middle of the pool is cooled
by the accelerant.  Nevertheless, Goin opined that a poured
accelerant was responsible for a burn pattern found on the floor of
the middle building, even though the charring was heaviest at the
center of the pattern.  Indeed, Goin did not testify to the
existence of any doughnut-shaped burn patterns in any of the three
buildings.
     Goin testified that the top of the mezzanine fire in the south
building was the product of an ignited accelerant.  This conclusion
was based on observations of burn patterns on the top of the
mezzanine.  Significantly, Goin did not point to any doughnut-
shaped burn patterns in support of this conclusion.  Defendant, on
the other hand, argued that the mezzanine fire resulted from
flashover of very hot gasses and flux that migrated through
conduction from the middle building to the south building and
collected in its ceiling area, only to ignite when a vent hole that
was cut in the south building allowed the infusion of oxygen.
Fireman William Thouvenin attributed flames coming out of a vent
hole he cut in the south building to the ignition of heated gases
mixing with the oxygen source created by the vent hole.  The
resulting fire burned up boxes, business records, and other items
that were stored on the top of the mezzanine, thereby causing the
burn patterns that Goin attributed to gasoline.  Defendant's theory
finds support from People's Exhibit 7, which shows dark smoke
rolling out of a vent on the roof of the south building at a time
when the middle building was undergoing full room involvement, and
People's Exhibit 16, which shows a uniform scorching or burn
pattern along the entire peak of the south building's roof. 
     Another troubling aspect of this case is the absence of any
evidence of gasoline on the premises or on defendant's person. 
Numerous building samples collected for laboratory analysis proved
negative for gasoline.  More telling, the State did not produce any
witness who could testify to the smell of gasoline on the premises
or on defendant's person.  This latter omission is particularly
important given the large amounts of accelerants defendant is
accused of pouring in a relatively short time frame.  Terrell
Moshbarger, who entered the store at 5:25 p.m. to ask defendant
about an automobile that was for sale, testified that he did not
smell gasoline.  Curt Swartzlander, a trained firefighter and one
of the first persons on the fire scene, spoke with defendant at the
fire scene.  He too made no mention of the smell of gasoline on
defendant's person.  Assuming that defendant had poured with great
haste approximately three gallons of gasoline throughout the three
buildings in the few minutes available to him between the closing
of his store and the arrival of the fire department, it is truly
remarkable that he was able to do so without acquiring even a
whisper of the scent of gasoline on his clothing or person.
Moreover, if gasoline were used in the quantities suggested by
Goin, then ignition would have been instantaneous and the buildings
would have exploded, according to defendant's expert, Charles
Hoffman.  Where was the explosion?
     Nonpublishable material under Supreme Court Rule 23 omitted.
     For the foregoing reasons, I must respectfully dissent.