People v. Howery
Annotate this Case
People v. Howery, No. 72959 (9/18/97).
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.
Docket No. 72959--Agenda 1--March 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. BERNON HOWERY, Appellant.
Opinion filed September 18, 1997.
JUSTICE McMORROW delivered the opinion of the court:
The defendant, Bernon Howery, was charged by indictment with four counts of first-
degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9--1(a)(2)), four counts of felony murder (Ill.
Rev. Stat. 1989, ch. 38, par. 9--1(a)(3)) and one count of aggravated arson (Ill. Rev. Stat. 1989,
ch. 38, par. 20--1.1). Following a bench trial, the circuit court of Kankakee County found the
defendant guilty of all charges. The defendant waived his right to a jury for the sentencing phase
of the proceedings, and the circuit court found him eligible for the death penalty based on four
aggravating factors (720 ILCS 5/9--1(b)(3), (b)(6), (b)(7), (b)(11) (West 1992)). The court then
determined that there were no factors presented in mitigation which would preclude the
imposition of the death penalty, and sentenced the defendant to death. The sentence has been
stayed pending direct appeal to this court. Ill. Const. 1970, art. VI, sec. 4(b); 134 Ill. 2d R. 603.
We now affirm the defendant's convictions, but reverse and remand for a new sentencing
hearing.
BACKGROUND
During the early morning hours of December 9, 1989, a fire occurred at the home of
Linda Walls at 656 South Wildwood in Kankakee, Illinois. Linda's four children, LaDonja Walls,
age 11, Prima Walls-Howery, age 10, Joel Howery, age 9, and Justina Howery, age 5, all died
from carbon monoxide poisoning as a result of the fire. The fire originated in a storage closet
underneath the only set of stairs which lead to the second-floor bedrooms where the children
slept. The defendant was the father of the three youngest children who died in the fire.
In the days following the deaths of the children, the defendant made a series of statements
regarding his knowledge of the fire and his whereabouts on the night of December 8 and the
early morning hours of December 9. On January 3, 1990, the defendant was indicted in
connection with the deaths of all four children on four counts of first degree murder under
section 9--1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 9--1(a)(2)), four
counts of felony murder under section 9--1(a)(3) (Ill. Rev. Stat. 1989, ch. 38, par. 9--1(a)(3)) and
one count of aggravated arson (Ill. Rev. Stat. 1989, ch. 38, par. 20.1--1). The defendant
subsequently entered a plea of not guilty to each of the crimes charged.
In December 1990, the defendant's attorney filed motions to suppress his statements and
evidence which was seized after the fire. Both motions were denied. The defendant waived his
right to a jury trial.
Trial Evidence
Linda Walls testified that the defendant was the father of her three youngest children,
Prima, Joel and Justina. Linda characterized the defendant as a very loving and interested father,
who assisted in raising the children. She stated that the defendant treated her oldest child,
LaDonja Walls, as if she were his own.
Linda testified that despite the defendant's loving relationship with the children, her own
relationship with him was turbulent, punctuated by periods of fighting. Linda testified that she
had been involved with the defendant for 12 years. In the fall of 1989, their relationship was
coming to an end.
Linda described an October 1989 incident in which the defendant burned her with his
cigarette by flipping it at her during the course of an argument. Linda explained that the
defendant had been drinking excessively for several months, and that they often argued when he
was drinking. She also stated that the defendant had been living with her on Wildwood, but that
she was the sole owner of the home. After the cigarette incident, Linda asked the defendant to
move out and he complied.
Linda also testified regarding an incident in November of 1989, in which the defendant
arrived at her home unannounced and uninvited. The defendant wanted to spend the night at the
house, and Linda permitted him to sleep on her sofa. At some point during the evening, the
defendant entered Linda's bedroom and indicated that he wanted to have sexual intercourse with
her. Linda testified that when she resisted the defendant's advances he struck her three times in
the head and then began to wrestle with her. At that time, Linda's brother, Johnny Walls, entered
the room and the defendant punched him in the mouth. Johnny lived in the basement of Linda's
home.
Linda then testified to an encounter with the defendant on December 6, 1989. She stated
that when she arrived home from work that day, she found the defendant sitting on her front
porch. The defendant stated that he wanted to rekindle their relationship. He also threatened to
kill anyone that she dated. Linda further testified that the defendant told her that he did not want
anyone else in her life but him, and that no one else could be in the children's lives.
Approximately two weeks prior to the December 6 conversation with the defendant, Linda
had begun dating Keith Ward. On the night of Wednesday, December 6, 1989, Ward spent the
night at Linda's house.
Linda testified that at 5:30 a.m. on Thursday, December 7, while she was dressing for
work, the defendant arrived at her front door and asked to come into the house. Linda stated that
she denied the defendant permission to enter and told him that he could stay in his car in the
garage if he wished.
Linda testified that at 10 a.m. that same day, she received an hysterical phone call from
the defendant while she was at work. The defendant was crying and stated that he was hurt
because he saw Keith Ward leave her house that morning. The defendant told Linda that he had
been in the garage pointing a gun toward Ward's head. The defendant also told her that he could
have shot Ward, but refrained because he did not want to hurt her. Linda testified that the
defendant stated that he wanted her back in his life. Linda also stated that after receiving several
calls from the defendant throughout the day, he eventually told her that he would write her a
letter.
Linda testified that on Friday, December 8, she did not go to work. That day, the
defendant came to her home unannounced at approximately 11:45 a.m. in order to deliver the
promised letter. The defendant then asked Linda to drive him to the courthouse, and she agreed.
While in the car, the defendant asked Linda to marry him. Linda testified that she told the
defendant that she could not give him an answer because of the "animosity" that had built up
between them and because of his abusive behavior. The defendant responded by arguing that he
had changed. Linda then told the defendant that Keith Ward was going to drive her and the
children to Chicago for a Christmas party on Saturday, December 9. The defendant responded
by stating that it hurt him to see someone else with his children. Linda then reassured him that
he would always be the children's father, and the defendant stated that he could accept her
wishes and understood the situation. Linda dropped the defendant off at the courthouse at
approximately 1 p.m.
Linda testified that on the afternoon of Friday, December 8, 1989, she, Keith Ward and
the children went out together. That evening they all returned to Linda's home. Linda and Keith
had plans to go out that night. Linda stated that while she was preparing for the date, Keith and
Johnny Walls went out together. While they were gone, sometime after 10:30 p.m., the defendant
arrived at Linda's house unexpectedly. The defendant stated that he bought some beer for Johnny.
Linda then asked the defendant to leave peacefully because she was expecting Keith and Johnny
to return any minute. At that moment, Keith and Johnny pulled up in the car and the defendant
walked away.
Linda testified that she and Keith left for their date at approximately 11:30 p.m. or 12
a.m., but she was not certain of the precise time. She stated that prior to leaving she did not
detect any smoke in the house. Linda testified that when she returned home sometime after 1 a.m.
the house was in flames and the fire department was fighting the fire.
Linda explained that following the fire, she recovered the defendant's unopened letter
from the house. In the letter, the defendant describes his emotional turmoil over their relationship.
On cross-examination, Linda testified that she did not use the storage area underneath the
stairs to store clothing. She further stated that on the day before the fire, she had taken the dirty
clothes in the house to the basement to wash them.
Keith Ward also testified on behalf of the State. He corroborated much of Linda's
testimony. He further testified that on the night of December 8, when he returned to Linda's
home with Johnny Walls, he encountered the defendant leaving the house. Ward testified that the
defendant did not acknowledge his presence. Instead, the defendant announced that he had hoped
to drink a beer with Johnny, but did not want to stay because he did not like the company. Ward
stated that he and Linda left for their date around 11:30 p.m. or 12 a.m., but he was not sure of
the precise time. On cross-examination he testified that he and Johnny returned from the liquor
store around 11:45 p.m.
Johnny Walls also testified. His testimony corroborated Linda's account of the defendant's
behavior in November of 1989, when the defendant punched Johnny in the mouth.
Johnny testified that before the fire, he had been living in Linda's basement. Johnny stated
that on December 8, Linda came home with Keith and the children around 10 p.m. He said that
he and Keith went out together and then returned to Linda's house where they saw the defendant
leaving. Johnny's testimony regarding the encounter with the defendant substantially corroborates
Ward's account.
Johnny further testified that shortly after Linda and Keith left on their date, the defendant
returned to the house with a bag under his arm. Johnny stated that he assumed that the bag
contained a six-pack of beer, but he never actually saw the beer. Johnny testified that the
defendant left the house again in order to purchase cigarettes, and then returned.
Johnny further testified that while he and the defendant were sitting in the living room
drinking beer and smoking, Billie Jones arrived at the door. Jones asked Johnny if he was ready
to go. He also offered to give the defendant a ride. The defendant indicated that he was going
to finish his beer. Jones then drank a beer with Johnny and the defendant, as they sat in the
living room talking and smoking cigarettes. Johnny testified that as he and Jones were about to
leave, the defendant asked Johnny for his lighter and Johnny gave it to him.
Johnny explained that while he and the others were sitting in the living room, Prima, Joel
and Justina were watching TV on the first floor of the house in Linda's bedroom. Johnny stated
that he sent the children to bed around 11:30 p.m. just before leaving the house with Billie Jones.
On cross-examination Johnny stated that he sent the children to bed closer to 12 a.m.
Johnny testified that before leaving with Jones, he told the defendant that he would return
in "about 15 minutes, before [the defendant] finished his beer." Johnny said that he and Jones
drove around, and then went to Nightingale where they stayed for about 15 to 20 minutes and
drank a beer. Johnny testified that while they were at Nightingale, they met Oscar Stancil and
decided to go to his house. Johnny explained that while they were on their way to Oscar's house,
they noticed the fire at Linda's house. Johnny stated that he attempted to enter the house, but was
removed and placed in a squad car.
Billie Jones also testified. He stated that he is married to Linda Walls' sister. He testified
that on the night of December 8, Johnny Walls and Keith Ward stopped at his home "a little after
11:00." He testified that after taking a shower, he went to Linda's house to meet Johnny. Jones
stated that when he arrived, Johnny and the defendant were in the living room.
Jones further testified that he remained at the house for about 15 or 20 minutes and drank
beer. He explained that he and Johnny left almost immediately after Johnny sent the children to
bed. Jones testified that before leaving, the defendant asked for a ride to the Model Motel, and
Jones agreed. However, when it actually came time to leave, the defendant stated that he was
going to stay and finish his drink. Jones further corroborated Johnny's testimony that the
defendant asked to have Johnny's lighter, and Johnny complied.
Jones stated that he and Johnny went to Paradise Lounge, but did not have a drink. He
stated that they then went to Nightingale, where they stayed for 15 to 20 minutes and drank a
beer. On cross-examination, Jones testified that he met Johnny at Linda's house around 12:45
a.m. and stayed for 10 or 15 minutes.
The State then presented the testimony of several witnesses who discovered the fire at
approximately 1 a.m. on December 9, 1989.
Three civilians who were driving in the neighborhood stopped at the scene. These
witnesses testified that they saw smoke coming from the house, but initially did not see flames.
The civilians attempted to enter through the front and back doors and the second-floor window,
but were unsuccessful because the smoke was intolerable. The witnesses stated that they could
see a red or orange glow on the first floor and in the basement. The witnesses further testified
that the fire department arrived approximately 5 or 10 minutes after they did, around 1:10 a.m.
One witness testified that by that time, flames had broken through the roof of the house.
Additionally, Thomas Champion, an Indiana firefighter who lived on Linda Walls' block,
testified that he was awakened at 12:55 a.m. by the sound of a dog barking. Champion stated that
he could smell a strong odor of wood burning. He told his wife to call the fire department and
left to seek out the fire.
Champion stated that he traced the smoke to Linda Walls' house. When he approached
Walls' house, it was in the process of "breathing." Technically, "breathing" means that the fire
has consumed all of the air in the house, and pressure is released in the form of smoke.
Champion testified that he only went a few feet inside the front door of the house because the
fire was too hot to venture any further. He stated that he yelled out several times, but did not
receive a response. Champion testified that after his unsuccessful attempts to enter the house, the
fire department arrived.
Several witnesses testified that they saw the defendant arrive at the house after the fire
department. Witnesses who observed the defendant variably described his pace in approaching
the house as "normal," "casual" and a "fast walking pace." Witnesses also stated that the
defendant was not frantic, but repeatedly asked, "Where are my kids?" Several witnesses testified
that the defendant made two unsuccessful attempts to enter the burning house. One witness stated
that the defendant was easily restrained and did not struggle. The defendant eventually was taken
to a nearby police car, where he continued to inquire about the location of his children. Another
witness testified that the defendant asked whether he was under arrest when he was brought to
the squad car.
Roger Brown, Linda Walls' next-door neighbor, testified that he had a brief conversation
with the defendant at the scene of the fire. Brown stated that he attempted to console the
defendant and told him not to worry because his children probably escaped. Brown testified that
the defendant responded by saying that Linda had left the children there and "damn Johnny." The
defendant further told Brown that "they were not looking in the right place." Brown testified that
he thought that the defendant had been drinking because he could smell alcohol on his breath.
Finally, Brown testified that the defendant eventually drove away in a car with someone.
Britton Warmoth, a resident of the neighborhood, testified that he videotaped the scene
of the fire after the fire department arrived. The court eventually reviewed the video and admitted
it into evidence.
Additional testimony showed that Johnny, Linda and Billie Jones returned to the burning
house after the defendant had left. Testimony also showed that the defendant left the scene before
the children's bodies were recovered from the fire.
James Saravino of the Kankakee fire department also testified. He stated that he arrived
at the scene of the fire at 1:10 a.m. Saravino stated that heavy black smoke seeped from the
eaves of the house and that flames from the fire had broken through the roof in the center of the
house towards the back. He said that they first extinguished the fire under the stairs, which were
completely burned out. He then entered the second floor of the house using a ladder which was
placed outside of the second-floor windows. After searching the floor, he found a young girl
lying face down in a closet. The three other children were found lying face up in the closet and
cradling one another, completely covered in clothing. Saravino stated that all of the children were
removed from the house. Finally, Saravino testified that it would have been "suicide" for the
firefighters to enter the second floor without first controlling the seat of the fire on the first floor.
Several witnesses testified that they were unable to resuscitate the children at the scene.
The children were then taken to the hospital. An emergency room physician who initially
examined the children believed that one them may have been sexually abused. This information
eventually was relayed to the fire and police investigators.
Pathologist Dr. William Robert Anderson performed autopsies on all of the children at
approximately 10 a.m. on December 9, 1989, at Riverside Hospital. Dr. Anderson concluded that
all of the children died from carbon monoxide poisoning with smoke inhalation from the fire. He
further stated that the children were exposed to a high level of carbon monoxide for a short
period of time, which allowed the concentration of the poisonous gas in their bloodstreams to rise
very quickly. Dr. Anderson testified that the children were probably "unconscious within a few
moments of exposure." He stated that death would have ensued within a very few minutes after
the children lost consciousness. Finally, Dr. Anderson concluded that there was no evidence of
sexual abuse on any of the children.
The investigation of the cause of the fire began immediately after it was extinguished on
December 9. The investigators agreed that there were two separate fires in the house and there
were two different "points of origin." The most destructive fire occurred in the storage closet
underneath the stairwell, which led to the second floor of the house. The investigators testified
that a second, completely unrelated fire occurred in a pile of clothing near the dryer in the
basement.
On December 9 and 10, the defendant made three separate, formal statements regarding
his whereabouts on the night of the fire. The defendant gave his first statement during the early
morning hours of December 9, after his brother, Frankie Howery, had taken him to Riverside
Hospital for sedatives. Several firemen and policemen interviewed the defendant at approximately
6:30 a.m. while the defendant was in the comfort room of the hospital. The defendant then
handwrote a statement describing his whereabouts prior to the fire. The first statement provided
as follows.
Around 10:30 p.m. the defendant left his parent's home in Pembrooke and went to the
Model Motel in Kankakee.[fn1] He left the motel and went to Food Expo to purchase a six-pack
of beer. He then decided to go to Linda's house to have a drink with Johnny. The statement
about what followed is substantially similar to the account provided by Linda, Johnny and Billie
Jones. The defendant further stated that after Johnny and Jones left the house, he finished his
beer and left. He guessed that the children were asleep. He then went to Food Expo for another
six pack of beer, but it was closed. From there he went to Park and Shop to purchase beer. After
that, he encountered Demetrious Cobb, and got into Cobb's car. While they were driving, Cobb's
car stalled. The defendant stated that as they pushed the car around the corner, he saw flashing
lights by Linda's house. He stated that he went to Linda's house, but was prevented from
entering.
The record shows that after the defendant made this initial statement, Robert Anderson,
a Kankakee police officer took him to Kankakee police station for questioning about the possible
sexual abuse of the children. Anderson testified that at 9:25 a.m. on December 9, he typed a
statement from the defendant, which the defendant then signed. The statement is similar to the
handwritten statement given at 6:30 a.m., but is more detailed.
In his second statement the defendant said that he arrived at Linda's on the night of
December 8, at 11 p.m. or shortly thereafter. The defendant also stated that it was after 12 a.m.
when Johnny Walls and Billie Jones left the house. Finally, the statement provides that the
defendant "did not have anything to do with the fire." The defendant stated that he did not touch
or harm any of the children.
Anderson testified that after the defendant gave this second statement, he returned the
defendant to Riverside Hospital in order to obtain samples from him. Anderson explained that
at that point in the investigation, the police thought that the children had been sexually abused.
Anderson stated that he also collected the defendant's shoes and pants. The defendant agreed to
return to the police station on the following morning, Sunday, December 10.
Kankakee Assistant State's Attorney Larry Beaumont testified that he met with the
defendant at 11:35 a.m. on Sunday, December 10, and the defendant signed a written Miranda
waiver. Beaumont testified that the defendant denied going into the basement on the night of
December 8, and denied any knowledge of who started the fire. The defendant also told
Beaumont that he had warned Linda about faulty wiring in the house and about leaving clothing
on the floor in the basement and underneath the stairs. Beaumont then asked the defendant how
he knew that the fire started under the stairs and in the basement. The defendant responded that
he had heard this information on the radio or TV the previous night. When Beaumont asked the
defendant how he knew that the fire started in some clothing, the defendant had no explanation.
The defendant and Beaumont then went to a restaurant. Beaumont testified that while they
were eating, the defendant admitted that he had gone into Linda's basement on the night of the
fire. The defendant told Beaumont that after Johnny left, Justina came downstairs and went to
the bathroom. According to the defendant, after Justina came out of the bathroom, she picked up
an ashtray and said that she was going to dump it out. After Justina was gone for a short period
of time, the defendant heard her laughing. Justina told the defendant that she was playing with
the dog and the dog knocked over the ashtray in the basement. The defendant told Beaumont that
he found the ashtray tipped over near a pile of clothing. The defendant stated that he did not see
any cigarettes or ashes, so he picked up the ashtray and went back upstairs. Justina then went
back upstairs to bed. The defendant further stated that before he left, he heard one of the children
say "give that to Bernon." When he looked upstairs, Justina threw a lighter down to him.
Beaumont said that he and the defendant left the restaurant and visited the scene of the
fire for about 40 minutes. Beaumont testified that the defendant again told him that he had no
idea how the fire underneath the stairs had started. Beaumont testified that the defendant then
explained that he previously denied having been in the basement because it "looked bad and he
did not want to get in trouble." The defendant then agreed to return to the police station and give
a statement detailing these events.
The defendant's third formal statement was taken at 5:50 p.m. on December 10. The
statement essentially reflects the information that the defendant gave to Beaumont. Beaumont's
testimony indicated that while the defendant's statement was being typed, Beaumont told the
defendant that he believed he knew how the fire started underneath the stairs. The defendant then
told Beaumont that when he walked Justina back to bed, as he passed the bathroom he flipped
a cigarette towards the bathroom. The defendant stated that he tried to throw the cigarette into
the toilet, but never actually saw it go into the toilet.
Beaumont testified that he next informed the defendant that they were sending evidence
to the lab to test for accelerants. The defendant then stated that two days before the fire, he had
spilled gasoline on his pants in Linda's garage. He further stated that he went into the first-floor
bathroom in Linda's home, wiped the gas from his boots with a T-shirt, and then threw the shirt
into a laundry basket under the stairs. The defendant then stated that perhaps the cigarette fell
into the basket containing the gas-filled T-shirt, thereby causing the fire.
Beaumont testified that the defendant read this third statement, made corrections and
signed it. The defendant also made a written addition to the typed statement which provides:
"In order for this statement to be absolutely accurate, I must add that I do
feel responsible for the fires because I was there and the last adult to leave. I feel
that no matter how the fires really got started, I am responsible, not by intent to
destroy a home nor to take lives but by my own negligence and in a sense
carelessness. I am extremely sorry that I did not [sic] all these details in my
previous statement. I am now will[ing] to take the full blame. I do not believe that
anyone except myself was really responsible for the fire. I cannot say where the
cigarette landed in the bathroom, but I did toss about a third of a cigarette into the
bathroom, aiming it at the toilet, which I did not watch it go into the toilet. There
have been times when I would miss and hit the [illegible] of an opening, but
usually I am more cautious. On Saturday morning, 12-09-89, I was not that
cautious. In fact, I knew the fire was my own fault the moment the firemen
mentioned that started under the staircase (in the bathroom). Again I say there was
no intent to destroy property or lives. The reason I gave the statement as I did
previously was simply not to include anyone other than myself. Also, the
questions were asked in a way that would seem to mean I did something on
purpose. Again, no matter the consequences, I take full responsibility."
Beaumont testified that he then asked the defendant whether he started the fire with a
lighter. At that point the defendant stated that there were more things that he would like to tell
Beaumont, but the interview was terminated.
The State also presented the testimony of its expert witness, John DeHann, a criminalist
for the California Department of Justice Bureau of Forensic Services in Sacramento. DeHann
testified as to the cause and origin of the fire. He stated that he investigated the scene of the fire
on December 15, 1989. He also reviewed several photographs of the scene. He explained that two
separate fires occurred in the house--one in a pile of clothing in the basement and the other
underneath the stairwell on the first floor of the house.
DeHann described the first-floor fire as a "high burn." This meant that the fire started in
the storage room beneath the stairs and moved to the bathroom, burning across and up. DeHann
stated that the area in and around the stairs suffered the most fire damage.
DeHann also testified that he investigated the fire in the basement. He stated that the fire
damage there was confined to the area around the dryer, including a burnt pile of clothing. In
examining the basement ceiling, DeHann noted that there was no direct fire damage. DeHann
testified that this observation indicated that there was no fire extension from the first-floor fire.
DeHann testified that he ruled out accidental causes of the fire after conducting an
extensive investigation. He further stated that the existence of two separate and unrelated fires
in the home led him to believe that the fires were incendiary in nature, meaning that someone
deliberately started the fires. He opined that the fires were started by a direct flame ignition,
using an item such as a match or a lighter. DeHann also stated that it is more difficult to ignite
a fire with a lit cigarette, than an open flame, but that it was possible to accomplish. He testified
that smoldering combustion from a lit cigarette would take anywhere from a half an hour to two
hours to occur. In contrast, a fire progresses much more quickly when an open flame ignition is
involved. DeHann did not have an opinion as to which fire was started first.
DeHann testified that the fire under the stairs would have spread very quickly due to the
wooden paneling, as well as the wood stairs. DeHann did not find positive, visual evidence that
an accelerant was used to start either fire and he could not conclusively determine whether an
accelerant was used. However, he also testified that if an accelerant was used, it may have burned
away during the fire.
DeHann stated that in his opinion, the fire did not result from smoldering. He stated that
given the length of time it would have taken the fire to burn through the stairs, the adults in the
house would have discovered the fire before leaving.
Several additional witnesses testified that they inspected the scene of the fire on December
9, 1989. Two witnesses agreed that the pile of clothing in the basement had a peculiar smell. The
investigators also agreed that none of the appliances in the basement malfunctioned and there was
no sign of electrical problems. The investigators stated that all accidental sources for the fire
were eliminated. The investigators believed that there were two points of origin for the fire, and
there was no possibility of connection between the two. Investigators testified that they found
fabric, presumably clothing, at the bottom of a white plastic laundry basket in the doorway area
that led underneath the stairs.
Forensic chemists Mark Boese and Blair Schultz testified that they performed tests on
various pieces of evidence collected, in order to determine whether accelerants were present.
Boese testified that he tested the shoes that the defendant was wearing on the night of the fire
by using a method known as gas chromatography. Boese stated that he detected a microliter of
kerosene and an unidentified amount of a heavy petroleum distillate on the shoes. Heavy
petroleum distillates are compounds such as kerosene, diesel fuel, charcoal starter fluid, home
heating oil or fuel oil, but not gasoline. Schultz also said that he detected a heavy petroleum
distillate on the defendant's pants. Schultz tested three aluminum malt liquor cans and two plastic
drinking cups which were obtained from the scene of the fire. He found traces of heavy
petroleum distillate on all. On cross-examination, Schultz admitted that there is no way to
determine the length of time that the accelerants would have been on the defendant's pants or
any of the other tested items.
Finally, Joseph Ambrozich, a latent fingerprint examiner, testified that he was unable to
detect fingerprints on anything tested. The State then rested.
On the defendant's behalf, the defendant's brother Frankie Howery testified that on the
night of the fire the defendant appeared at his house sometime after midnight. Frankie stated that
the defendant was "sobbing incoherently." The defendant told Frankie that his children had died
in a fire, and repeatedly stated "my babies are dead." Frankie testified that the defendant was so
distraught that he took him to Riverside Hospital for a sedative.
Frankie further testified that in the latter part of November or early December the
defendant and another one of their brothers created a firebreak around their parents' trailer home
in order to protect it from a forest fire. At the time, the defendant was living in the trailer home
with his parents. Frankie testified that the defendant used kerosene to burn the leaves around the
trailer. Finally, Frankie testified that the defendant was a loving father who overindulged his
children.
George Washington, a member of the county board of Kankakee County, also testified
on the defendant's behalf. Washington stated that he worked with the defendant on the county
board. Washington stated that the defendant worked against gang crime in the community and
was a concerned parent. He described the defendant as a nonviolent individual.
The defendant offered the testimony of three additional character witnesses: Reverend
William Copeland, Arthur B. Kennedy and Willie Davis. All essentially testified that the
defendant had a reputation as having a peaceful and law abiding character, and loved his
children.
The defendant also presented the testimony of Charles Neuf, as his expert in forensic
science. Neuf testified that he conducts accident, fire and explosion investigations. He stated he
is a member of the National Association of Fire Investigators. Neuf testified that he was
contacted by attorney Sherri Carr to investigate the fire on the defendant's behalf. Neuf stated
that he conducted a physical investigation of the fire scene approximately 11 months after the
fire, on November 23 and 24, 1990. He agreed with DeHann that the point of origin for the fire
was underneath the stairs on the first floor of the house. However, he disagreed with DeHann
regarding the origin of the fire in the basement. Upon examining the basement, Neuf concluded
that the fire directly beside the dryer was most likely the result of a fire from on top of the dryer.
Neuf further opined that the basement fire originated from debris that fell from the basement
ceiling during the 20- to 30-minute period when the fire was very hot. According to Neuf's
theory, the debris from first-floor fire may have caused sparks which became imbedded in
clothing near the dryer and caused the clothing to ignite. Neuf stated that if the basement fire and
the first-floor fire had ignited at the same time, then the fire would have progressed further than
it did because there was plenty of oxygen in the basement, which would have allowed the fire
to burn. Neuf did not have an opinion as to how the fire began underneath the stairs.
On cross-examination, Neuf stated that because the doors of the house were closed, when
the house filled with hot air "it had to go down." He further testified that there was three to five
feet of superheated air just below the surface of the basement ceiling, which came from the first
floor. He then admitted, however, that heat always rises. Further, Neuf stated that he did not see
unmelted or unburned items, such as a plastic alarm clock, a cardboard detergent box, or a
cardboard box, near the basement fire.
Finally, the defendant offered the stipulated testimony of Demetrious Cobb. Cobb stated
that shortly after midnight on December 9, he saw the defendant walking across the Food Expo
parking lot. He stated that the defendant asked him for a ride to the Model Motel where he was
staying. While they were driving, the car stalled. At that point they looked south and saw flashing
lights near Linda Wall's house. Cobb eventually restarted the car and drove to the fire.
Cobb stated that he saw two firemen holding the defendant by the arms. Cobb stated that
he then took the defendant to a police officer and the officer told him that no one was in the
house. The defendant then started to walk back towards the house and a police officer grabbed
him. After a short struggle, the defendant asked if he was being charged and the police officer
responded that he was not. Cobb then took the defendant to the car where the defendant asked
Cobb to find a phone so that he could call his "wife." Cobb stated that the defendant then said,
"I should have killed that bitch last night when he came out." Cobb also stated that he drove the
defendant to the Model Motel and the defendant said, "Well, I know where my kids are now."
Cobb described the defendant as controlled, conversational and not greatly controlled by liquor.
The defense then rested.
In rebuttal, the State called fire investigator Billy Foster. Foster testified that he disagreed
with Neuf that there was a three- to five-foot layer of superheated air just below the surface of
the basement ceiling, which caused the basement fire. Foster stated that his opinion was based
on the fact that there were several other flammable artifacts in the basement that were not burned.
Foster said that the burning in the basement occurred from the floor upwards. Foster also stated
that on December 9, investigators observed a pile of unburned clothing on top of the dryer, and
the light bulbs in the ceiling were intact. The State then rested.
Trial Court's Ruling on Guilt
The trial court found the defendant guilty on all charges. The court stated that all of the
evidence pointed to guilt beyond a reasonable doubt. The court found that the defendant clearly
had a motive to commit the crimes, and referenced defendant's letter to Linda,
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.
Docket No. 72959--Agenda 1--March 1997.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. BERNON HOWERY, Appellant.
Opinion filed September 18, 1997.
JUSTICE McMORROW delivered the opinion of the court:
The defendant, Bernon Howery, was charged by indictment with four counts of first-
degree murder (Ill. Rev. Stat. 1989, ch. 38, par. 9--1(a)(2)), four counts of felony murder (Ill.
Rev. Stat. 1989, ch. 38, par. 9--1(a)(3)) and one count of aggravated arson (Ill. Rev. Stat. 1989,
ch. 38, par. 20--1.1). Following a bench trial, the circuit court of Kankakee County found the
defendant guilty of all charges. The defendant waived his right to a jury for the sentencing phase
of the proceedings, and the circuit court found him eligible for the death penalty based on four
aggravating factors (720 ILCS 5/9--1(b)(3), (b)(6), (b)(7), (b)(11) (West 1992)). The court then
determined that there were no factors presented in mitigation which would preclude the
imposition of the death penalty, and sentenced the defendant to death. The sentence has been
stayed pending direct appeal to this court. Ill. Const. 1970, art. VI, sec. 4(b); 134 Ill. 2d R. 603.
We now affirm the defendant's convictions, but reverse and remand for a new sentencing
hearing.
BACKGROUND
During the early morning hours of December 9, 1989, a fire occurred at the home of
Linda Walls at 656 South Wildwood in Kankakee, Illinois. Linda's four children, LaDonja Walls,
age 11, Prima Walls-Howery, age 10, Joel Howery, age 9, and Justina Howery, age 5, all died
from carbon monoxide poisoning as a result of the fire. The fire originated in a storage closet
underneath the only set of stairs which lead to the second-floor bedrooms where the children
slept. The defendant was the father of the three youngest children who died in the fire.
In the days following the deaths of the children, the defendant made a series of statements
regarding his knowledge of the fire and his whereabouts on the night of December 8 and the
early morning hours of December 9. On January 3, 1990, the defendant was indicted in
connection with the deaths of all four children on four counts of first degree murder under
section 9--1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 9--1(a)(2)), four
counts of felony murder under section 9--1(a)(3) (Ill. Rev. Stat. 1989, ch. 38, par. 9--1(a)(3)) and
one count of aggravated arson (Ill. Rev. Stat. 1989, ch. 38, par. 20.1--1). The defendant
subsequently entered a plea of not guilty to each of the crimes charged.
In December 1990, the defendant's attorney filed motions to suppress his statements and
evidence which was seized after the fire. Both motions were denied. The defendant waived his
right to a jury trial.
Trial Evidence
Linda Walls testified that the defendant was the father of her three youngest children,
Prima, Joel and Justina. Linda characterized the defendant as a very loving and interested father,
who assisted in raising the children. She stated that the defendant treated her oldest child,
LaDonja Walls, as if she were his own.
Linda testified that despite the defendant's loving relationship with the children, her own
relationship with him was turbulent, punctuated by periods of fighting. Linda testified that she
had been involved with the defendant for 12 years. In the fall of 1989, their relationship was
coming to an end.
Linda described an October 1989 incident in which the defendant burned her with his
cigarette by flipping it at her during the course of an argument. Linda explained that the
defendant had been drinking excessively for several months, and that they often argued when he
was drinking. She also stated that the defendant had been living with her on Wildwood, but that
she was the sole owner of the home. After the cigarette incident, Linda asked the defendant to
move out and he complied.
Linda also testified regarding an incident in November of 1989, in which the defendant
arrived at her home unannounced and uninvited. The defendant wanted to spend the night at the
house, and Linda permitted him to sleep on her sofa. At some point during the evening, the
defendant entered Linda's bedroom and indicated that he wanted to have sexual intercourse with
her. Linda testified that when she resisted the defendant's advances he struck her three times in
the head and then began to wrestle with her. At that time, Linda's brother, Johnny Walls, entered
the room and the defendant punched him in the mouth. Johnny lived in the basement of Linda's
home.
Linda then testified to an encounter with the defendant on December 6, 1989. She stated
that when she arrived home from work that day, she found the defendant sitting on her front
porch. The defendant stated that he wanted to rekindle their relationship. He also threatened to
kill anyone that she dated. Linda further testified that the defendant told her that he did not want
anyone else in her life but him, and that no one else could be in the children's lives.
Approximately two weeks prior to the December 6 conversation with the defendant, Linda
had begun dating Keith Ward. On the night of Wednesday, December 6, 1989, Ward spent the
night at Linda's house.
Linda testified that at 5:30 a.m. on Thursday, December 7, while she was dressing for
work, the defendant arrived at her front door and asked to come into the house. Linda stated that
she denied the defendant permission to enter and told him that he could stay in his car in the
garage if he wished.
Linda testified that at 10 a.m. that same day, she received an hysterical phone call from
the defendant while she was at work. The defendant was crying and stated that he was hurt
because he saw Keith Ward leave her house that morning. The defendant told Linda that he had
been in the garage pointing a gun toward Ward's head. The defendant also told her that he could
have shot Ward, but refrained because he did not want to hurt her. Linda testified that the
defendant stated that he wanted her back in his life. Linda also stated that after receiving several
calls from the defendant throughout the day, he eventually told her that he would write her a
letter.
Linda testified that on Friday, December 8, she did not go to work. That day, the
defendant came to her home unannounced at approximately 11:45 a.m. in order to deliver the
promised letter. The defendant then asked Linda to drive him to the courthouse, and she agreed.
While in the car, the defendant asked Linda to marry him. Linda testified that she told the
defendant that she could not give him an answer because of the "animosity" that had built up
between them and because of his abusive behavior. The defendant responded by arguing that he
had changed. Linda then told the defendant that Keith Ward was going to drive her and the
children to Chicago for a Christmas party on Saturday, December 9. The defendant responded
by stating that it hurt him to see someone else with his children. Linda then reassured him that
he would always be the children's father, and the defendant stated that he could accept her
wishes and understood the situation. Linda dropped the defendant off at the courthouse at
approximately 1 p.m.
Linda testified that on the afternoon of Friday, December 8, 1989, she, Keith Ward and
the children went out together. That evening they all returned to Linda's home. Linda and Keith
had plans to go out that night. Linda stated that while she was preparing for the date, Keith and
Johnny Walls went out together. While they were gone, sometime after 10:30 p.m., the defendant
arrived at Linda's house unexpectedly. The defendant stated that he bought some beer for Johnny.
Linda then asked the defendant to leave peacefully because she was expecting Keith and Johnny
to return any minute. At that moment, Keith and Johnny pulled up in the car and the defendant
walked away.
Linda testified that she and Keith left for their date at approximately 11:30 p.m. or 12
a.m., but she was not certain of the precise time. She stated that prior to leaving she did not
detect any smoke in the house. Linda testified that when she returned home sometime after 1 a.m.
the house was in flames and the fire department was fighting the fire.
Linda explained that following the fire, she recovered the defendant's unopened letter
from the house. In the letter, the defendant describes his emotional turmoil over their relationship.
On cross-examination, Linda testified that she did not use the storage area underneath the
stairs to store clothing. She further stated that on the day before the fire, she had taken the dirty
clothes in the house to the basement to wash them.
Keith Ward also testified on behalf of the State. He corroborated much of Linda's
testimony. He further testified that on the night of December 8, when he returned to Linda's
home with Johnny Walls, he encountered the defendant leaving the house. Ward testified that the
defendant did not acknowledge his presence. Instead, the defendant announced that he had hoped
to drink a beer with Johnny, but did not want to stay because he did not like the company. Ward
stated that he and Linda left for their date around 11:30 p.m. or 12 a.m., but he was not sure of
the precise time. On cross-examination he testified that he and Johnny returned from the liquor
store around 11:45 p.m.
Johnny Walls also testified. His testimony corroborated Linda's account of the defendant's
behavior in November of 1989, when the defendant punched Johnny in the mouth.
Johnny testified that before the fire, he had been living in Linda's basement. Johnny stated
that on December 8, Linda came home with Keith and the children around 10 p.m. He said that
he and Keith went out together and then returned to Linda's house where they saw the defendant
leaving. Johnny's testimony regarding the encounter with the defendant substantially corroborates
Ward's account.
Johnny further testified that shortly after Linda and Keith left on their date, the defendant
returned to the house with a bag under his arm. Johnny stated that he assumed that the bag
contained a six-pack of beer, but he never actually saw the beer. Johnny testified that the
defendant left the house again in order to purchase cigarettes, and then returned.
Johnny further testified that while he and the defendant were sitting in the living room
drinking beer and smoking, Billie Jones arrived at the door. Jones asked Johnny if he was ready
to go. He also offered to give the defendant a ride. The defendant indicated that he was going
to finish his beer. Jones then drank a beer with Johnny and the defendant, as they sat in the
living room talking and smoking cigarettes. Johnny testified that as he and Jones were about to
leave, the defendant asked Johnny for his lighter and Johnny gave it to him.
Johnny explained that while he and the others were sitting in the living room, Prima, Joel
and Justina were watching TV on the first floor of the house in Linda's bedroom. Johnny stated
that he sent the children to bed around 11:30 p.m. just before leaving the house with Billie Jones.
On cross-examination Johnny stated that he sent the children to bed closer to 12 a.m.
Johnny testified that before leaving with Jones, he told the defendant that he would return
in "about 15 minutes, before [the defendant] finished his beer." Johnny said that he and Jones
drove around, and then went to Nightingale where they stayed for about 15 to 20 minutes and
drank a beer. Johnny testified that while they were at Nightingale, they met Oscar Stancil and
decided to go to his house. Johnny explained that while they were on their way to Oscar's house,
they noticed the fire at Linda's house. Johnny stated that he attempted to enter the house, but was
removed and placed in a squad car.
Billie Jones also testified. He stated that he is married to Linda Walls' sister. He testified
that on the night of December 8, Johnny Walls and Keith Ward stopped at his home "a little after
11:00." He testified that after taking a shower, he went to Linda's house to meet Johnny. Jones
stated that when he arrived, Johnny and the defendant were in the living room.
Jones further testified that he remained at the house for about 15 or 20 minutes and drank
beer. He explained that he and Johnny left almost immediately after Johnny sent the children to
bed. Jones testified that before leaving, the defendant asked for a ride to the Model Motel, and
Jones agreed. However, when it actually came time to leave, the defendant stated that he was
going to stay and finish his drink. Jones further corroborated Johnny's testimony that the
defendant asked to have Johnny's lighter, and Johnny complied.
Jones stated that he and Johnny went to Paradise Lounge, but did not have a drink. He
stated that they then went to Nightingale, where they stayed for 15 to 20 minutes and drank a
beer. On cross-examination, Jones testified that he met Johnny at Linda's house around 12:45
a.m. and stayed for 10 or 15 minutes.
The State then presented the testimony of several witnesses who discovered the fire at
approximately 1 a.m. on December 9, 1989.
Three civilians who were driving in the neighborhood stopped at the scene. These
witnesses testified that they saw smoke coming from the house, but initially did not see flames.
The civilians attempted to enter through the front and back doors and the second-floor window,
but were unsuccessful because the smoke was intolerable. The witnesses stated that they could
see a red or orange glow on the first floor and in the basement. The witnesses further testified
that the fire department arrived approximately 5 or 10 minutes after they did, around 1:10 a.m.
One witness testified that by that time, flames had broken through the roof of the house.
Additionally, Thomas Champion, an Indiana firefighter who lived on Linda Walls' block,
testified that he was awakened at 12:55 a.m. by the sound of a dog barking. Champion stated that
he could smell a strong odor of wood burning. He told his wife to call the fire department and
left to seek out the fire.
Champion stated that he traced the smoke to Linda Walls' house. When he approached
Walls' house, it was in the process of "breathing." Technically, "breathing" means that the fire
has consumed all of the air in the house, and pressure is released in the form of smoke.
Champion testified that he only went a few feet inside the front door of the house because the
fire was too hot to venture any further. He stated that he yelled out several times, but did not
receive a response. Champion testified that after his unsuccessful attempts to enter the house, the
fire department arrived.
Several witnesses testified that they saw the defendant arrive at the house after the fire
department. Witnesses who observed the defendant variably described his pace in approaching
the house as "normal," "casual" and a "fast walking pace." Witnesses also stated that the
defendant was not frantic, but repeatedly asked, "Where are my kids?" Several witnesses testified
that the defendant made two unsuccessful attempts to enter the burning house. One witness stated
that the defendant was easily restrained and did not struggle. The defendant eventually was taken
to a nearby police car, where he continued to inquire about the location of his children. Another
witness testified that the defendant asked whether he was under arrest when he was brought to
the squad car.
Roger Brown, Linda Walls' next-door neighbor, testified that he had a brief conversation
with the defendant at the scene of the fire. Brown stated that he attempted to console the
defendant and told him not to worry because his children probably escaped. Brown testified that
the defendant responded by saying that Linda had left the children there and "damn Johnny." The
defendant further told Brown that "they were not looking in the right place." Brown testified that
he thought that the defendant had been drinking because he could smell alcohol on his breath.
Finally, Brown testified that the defendant eventually drove away in a car with someone.
Britton Warmoth, a resident of the neighborhood, testified that he videotaped the scene
of the fire after the fire department arrived. The court eventually reviewed the video and admitted
it into evidence.
Additional testimony showed that Johnny, Linda and Billie Jones returned to the burning
house after the defendant had left. Testimony also showed that the defendant left the scene before
the children's bodies were recovered from the fire.
James Saravino of the Kankakee fire department also testified. He stated that he arrived
at the scene of the fire at 1:10 a.m. Saravino stated that heavy black smoke seeped from the
eaves of the house and that flames from the fire had broken through the roof in the center of the
house towards the back. He said that they first extinguished the fire under the stairs, which were
completely burned out. He then entered the second floor of the house using a ladder which was
placed outside of the second-floor windows. After searching the floor, he found a young girl
lying face down in a closet. The three other children were found lying face up in the closet and
cradling one another, completely covered in clothing. Saravino stated that all of the children were
removed from the house. Finally, Saravino testified that it would have been "suicide" for the
firefighters to enter the second floor without first controlling the seat of the fire on the first floor.
Several witnesses testified that they were unable to resuscitate the children at the scene.
The children were then taken to the hospital. An emergency room physician who initially
examined the children believed that one them may have been sexually abused. This information
eventually was relayed to the fire and police investigators.
Pathologist Dr. William Robert Anderson performed autopsies on all of the children at
approximately 10 a.m. on December 9, 1989, at Riverside Hospital. Dr. Anderson concluded that
all of the children died from carbon monoxide poisoning with smoke inhalation from the fire. He
further stated that the children were exposed to a high level of carbon monoxide for a short
period of time, which allowed the concentration of the poisonous gas in their bloodstreams to rise
very quickly. Dr. Anderson testified that the children were probably "unconscious within a few
moments of exposure." He stated that death would have ensued within a very few minutes after
the children lost consciousness. Finally, Dr. Anderson concluded that there was no evidence of
sexual abuse on any of the children.
The investigation of the cause of the fire began immediately after it was extinguished on
December 9. The investigators agreed that there were two separate fires in the house and there
were two different "points of origin." The most destructive fire occurred in the storage closet
underneath the stairwell, which led to the second floor of the house. The investigators testified
that a second, completely unrelated fire occurred in a pile of clothing near the dryer in the
basement.
On December 9 and 10, the defendant made three separate, formal statements regarding
his whereabouts on the night of the fire. The defendant gave his first statement during the early
morning hours of December 9, after his brother, Frankie Howery, had taken him to Riverside
Hospital for sedatives. Several firemen and policemen interviewed the defendant at approximately
6:30 a.m. while the defendant was in the comfort room of the hospital. The defendant then
handwrote a statement describing his whereabouts prior to the fire. The first statement provided
as follows.
Around 10:30 p.m. the defendant left his parent's home in Pembrooke and went to the
Model Motel in Kankakee.[fn1] He left the motel and went to Food Expo to purchase a six-pack
of beer. He then decided to go to Linda's house to have a drink with Johnny. The statement
about what followed is substantially similar to the account provided by Linda, Johnny and Billie
Jones. The defendant further stated that after Johnny and Jones left the house, he finished his
beer and left. He guessed that the children were asleep. He then went to Food Expo for another
six pack of beer, but it was closed. From there he went to Park and Shop to purchase beer. After
that, he encountered Demetrious Cobb, and got into Cobb's car. While they were driving, Cobb's
car stalled. The defendant stated that as they pushed the car around the corner, he saw flashing
lights by Linda's house. He stated that he went to Linda's house, but was prevented from
entering.
The record shows that after the defendant made this initial statement, Robert Anderson,
a Kankakee police officer took him to Kankakee police station for questioning about the possible
sexual abuse of the children. Anderson testified that at 9:25 a.m. on December 9, he typed a
statement from the defendant, which the defendant then signed. The statement is similar to the
handwritten statement given at 6:30 a.m., but is more detailed.
In his second statement the defendant said that he arrived at Linda's on the night of
December 8, at 11 p.m. or shortly thereafter. The defendant also stated that it was after 12 a.m.
when Johnny Walls and Billie Jones left the house. Finally, the statement provides that the
defendant "did not have anything to do with the fire." The defendant stated that he did not touch
or harm any of the children.
Anderson testified that after the defendant gave this second statement, he returned the
defendant to Riverside Hospital in order to obtain samples from him. Anderson explained that
at that point in the investigation, the police thought that the children had been sexually abused.
Anderson stated that he also collected the defendant's shoes and pants. The defendant agreed to
return to the police station on the following morning, Sunday, December 10.
Kankakee Assistant State's Attorney Larry Beaumont testified that he met with the
defendant at 11:35 a.m. on Sunday, December 10, and the defendant signed a written Miranda
waiver. Beaumont testified that the defendant denied going into the basement on the night of
December 8, and denied any knowledge of who started the fire. The defendant also told
Beaumont that he had warned Linda about faulty wiring in the house and about leaving clothing
on the floor in the basement and underneath the stairs. Beaumont then asked the defendant how
he knew that the fire started under the stairs and in the basement. The defendant responded that
he had heard this information on the radio or TV the previous night. When Beaumont asked the
defendant how he knew that the fire started in some clothing, the defendant had no explanation.
The defendant and Beaumont then went to a restaurant. Beaumont testified that while they
were eating, the defendant admitted that he had gone into Linda's basement on the night of the
fire. The defendant told Beaumont that after Johnny left, Justina came downstairs and went to
the bathroom. According to the defendant, after Justina came out of the bathroom, she picked up
an ashtray and said that she was going to dump it out. After Justina was gone for a short period
of time, the defendant heard her laughing. Justina told the defendant that she was playing with
the dog and the dog knocked over the ashtray in the basement. The defendant told Beaumont that
he found the ashtray tipped over near a pile of clothing. The defendant stated that he did not see
any cigarettes or ashes, so he picked up the ashtray and went back upstairs. Justina then went
back upstairs to bed. The defendant further stated that before he left, he heard one of the children
say "give that to Bernon." When he looked upstairs, Justina threw a lighter down to him.
Beaumont said that he and the defendant left the restaurant and visited the scene of the
fire for about 40 minutes. Beaumont testified that the defendant again told him that he had no
idea how the fire underneath the stairs had started. Beaumont testified that the defendant then
explained that he previously denied having been in the basement because it "looked bad and he
did not want to get in trouble." The defendant then agreed to return to the police station and give
a statement detailing these events.
The defendant's third formal statement was taken at 5:50 p.m. on December 10. The
statement essentially reflects the information that the defendant gave to Beaumont. Beaumont's
testimony indicated that while the defendant's statement was being typed, Beaumont told the
defendant that he believed he knew how the fire started underneath the stairs. The defendant then
told Beaumont that when he walked Justina back to bed, as he passed the bathroom he flipped
a cigarette towards the bathroom. The defendant stated that he tried to throw the cigarette into
the toilet, but never actually saw it go into the toilet.
Beaumont testified that he next informed the defendant that they were sending evidence
to the lab to test for accelerants. The defendant then stated that two days before the fire, he had
spilled gasoline on his pants in Linda's garage. He further stated that he went into the first-floor
bathroom in Linda's home, wiped the gas from his boots with a T-shirt, and then threw the shirt
into a laundry basket under the stairs. The defendant then stated that perhaps the cigarette fell
into the basket containing the gas-filled T-shirt, thereby causing the fire.
Beaumont testified that the defendant read this third statement, made corrections and
signed it. The defendant also made a written addition to the typed statement which provides:
"In order for this statement to be absolutely accurate, I must add that I do
feel responsible for the fires because I was there and the last adult to leave. I feel
that no matter how the fires really got started, I am responsible, not by intent to
destroy a home nor to take lives but by my own negligence and in a sense
carelessness. I am extremely sorry that I did not [sic] all these details in my
previous statement. I am now will[ing] to take the full blame. I do not believe that
anyone except myself was really responsible for the fire. I cannot say where the
cigarette landed in the bathroom, but I did toss about a third of a cigarette into the
bathroom, aiming it at the toilet, which I did not watch it go into the toilet. There
have been times when I would miss and hit the [illegible] of an opening, but
usually I am more cautious. On Saturday morning, 12-09-89, I was not that
cautious. In fact, I knew the fire was my own fault the moment the firemen
mentioned that started under the staircase (in the bathroom). Again I say there was
no intent to destroy property or lives. The reason I gave the statement as I did
previously was simply not to include anyone other than myself. Also, the
questions were asked in a way that would seem to mean I did something on
purpose. Again, no matter the consequences, I take full responsibility."
Beaumont testified that he then asked the defendant whether he started the fire with a
lighter. At that point the defendant stated that there were more things that he would like to tell
Beaumont, but the interview was terminated.
The State also presented the testimony of its expert witness, John DeHann, a criminalist
for the California Department of Justice Bureau of Forensic Services in Sacramento. DeHann
testified as to the cause and origin of the fire. He stated that he investigated the scene of the fire
on December 15, 1989. He also reviewed several photographs of the scene. He explained that two
separate fires occurred in the house--one in a pile of clothing in the basement and the other
underneath the stairwell on the first floor of the house.
DeHann described the first-floor fire as a "high burn." This meant that the fire started in
the storage room beneath the stairs and moved to the bathroom, burning across and up. DeHann
stated that the area in and around the stairs suffered the most fire damage.
DeHann also testified that he investigated the fire in the basement. He stated that the fire
damage there was confined to the area around the dryer, including a burnt pile of clothing. In
examining the basement ceiling, DeHann noted that there was no direct fire damage. DeHann
testified that this observation indicated that there was no fire extension from the first-floor fire.
DeHann testified that he ruled out accidental causes of the fire after conducting an
extensive investigation. He further stated that the existence of two separate and unrelated fires
in the home led him to believe that the fires were incendiary in nature, meaning that someone
deliberately started the fires. He opined that the fires were started by a direct flame ignition,
using an item such as a match or a lighter. DeHann also stated that it is more difficult to ignite
a fire with a lit cigarette, than an open flame, but that it was possible to accomplish. He testified
that smoldering combustion from a lit cigarette would take anywhere from a half an hour to two
hours to occur. In contrast, a fire progresses much more quickly when an open flame ignition is
involved. DeHann did not have an opinion as to which fire was started first.
DeHann testified that the fire under the stairs would have spread very quickly due to the
wooden paneling, as well as the wood stairs. DeHann did not find positive, visual evidence that
an accelerant was used to start either fire and he could not conclusively determine whether an
accelerant was used. However, he also testified that if an accelerant was used, it may have burned
away during the fire.
DeHann stated that in his opinion, the fire did not result from smoldering. He stated that
given the length of time it would have taken the fire to burn through the stairs, the adults in the
house would have discovered the fire before leaving.
Several additional witnesses testified that they inspected the scene of the fire on December
9, 1989. Two witnesses agreed that the pile of clothing in the basement had a peculiar smell. The
investigators also agreed that none of the appliances in the basement malfunctioned and there was
no sign of electrical problems. The investigators stated that all accidental sources for the fire
were eliminated. The investigators believed that there were two points of origin for the fire, and
there was no possibility of connection between the two. Investigators testified that they found
fabric, presumably clothing, at the bottom of a white plastic laundry basket in the doorway area
that led underneath the stairs.
Forensic chemists Mark Boese and Blair Schultz testified that they performed tests on
various pieces of evidence collected, in order to determine whether accelerants were present.
Boese testified that he tested the shoes that the defendant was wearing on the night of the fire
by using a method known as gas chromatography. Boese stated that he detected a microliter of
kerosene and an unidentified amount of a heavy petroleum distillate on the shoes. Heavy
petroleum distillates are compounds such as kerosene, diesel fuel, charcoal starter fluid, home
heating oil or fuel oil, but not gasoline. Schultz also said that he detected a heavy petroleum
distillate on the defendant's pants. Schultz tested three aluminum malt liquor cans and two plastic
drinking cups which were obtained from the scene of the fire. He found traces of heavy
petroleum distillate on all. On cross-examination, Schultz admitted that there is no way to
determine the length of time that the accelerants would have been on the defendant's pants or
any of the other tested items.
Finally, Joseph Ambrozich, a latent fingerprint examiner, testified that he was unable to
detect fingerprints on anything tested. The State then rested.
On the defendant's behalf, the defendant's brother Frankie Howery testified that on the
night of the fire the defendant appeared at his house sometime after midnight. Frankie stated that
the defendant was "sobbing incoherently." The defendant told Frankie that his children had died
in a fire, and repeatedly stated "my babies are dead." Frankie testified that the defendant was so
distraught that he took him to Riverside Hospital for a sedative.
Frankie further testified that in the latter part of November or early December the
defendant and another one of their brothers created a firebreak around their parents' trailer home
in order to protect it from a forest fire. At the time, the defendant was living in the trailer home
with his parents. Frankie testified that the defendant used kerosene to burn the leaves around the
trailer. Finally, Frankie testified that the defendant was a loving father who overindulged his
children.
George Washington, a member of the county board of Kankakee County, also testified
on the defendant's behalf. Washington stated that he worked with the defendant on the county
board. Washington stated that the defendant worked against gang crime in the community and
was a concerned parent. He described the defendant as a nonviolent individual.
The defendant offered the testimony of three additional character witnesses: Reverend
William Copeland, Arthur B. Kennedy and Willie Davis. All essentially testified that the
defendant had a reputation as having a peaceful and law abiding character, and loved his
children.
The defendant also presented the testimony of Charles Neuf, as his expert in forensic
science. Neuf testified that he conducts accident, fire and explosion investigations. He stated he
is a member of the National Association of Fire Investigators. Neuf testified that he was
contacted by attorney Sherri Carr to investigate the fire on the defendant's behalf. Neuf stated
that he conducted a physical investigation of the fire scene approximately 11 months after the
fire, on November 23 and 24, 1990. He agreed with DeHann that the point of origin for the fire
was underneath the stairs on the first floor of the house. However, he disagreed with DeHann
regarding the origin of the fire in the basement. Upon examining the basement, Neuf concluded
that the fire directly beside the dryer was most likely the result of a fire from on top of the dryer.
Neuf further opined that the basement fire originated from debris that fell from the basement
ceiling during the 20- to 30-minute period when the fire was very hot. According to Neuf's
theory, the debris from first-floor fire may have caused sparks which became imbedded in
clothing near the dryer and caused the clothing to ignite. Neuf stated that if the basement fire and
the first-floor fire had ignited at the same time, then the fire would have progressed further than
it did because there was plenty of oxygen in the basement, which would have allowed the fire
to burn. Neuf did not have an opinion as to how the fire began underneath the stairs.
On cross-examination, Neuf stated that because the doors of the house were closed, when
the house filled with hot air "it had to go down." He further testified that there was three to five
feet of superheated air just below the surface of the basement ceiling, which came from the first
floor. He then admitted, however, that heat always rises. Further, Neuf stated that he did not see
unmelted or unburned items, such as a plastic alarm clock, a cardboard detergent box, or a
cardboard box, near the basement fire.
Finally, the defendant offered the stipulated testimony of Demetrious Cobb. Cobb stated
that shortly after midnight on December 9, he saw the defendant walking across the Food Expo
parking lot. He stated that the defendant asked him for a ride to the Model Motel where he was
staying. While they were driving, the car stalled. At that point they looked south and saw flashing
lights near Linda Wall's house. Cobb eventually restarted the car and drove to the fire.
Cobb stated that he saw two firemen holding the defendant by the arms. Cobb stated that
he then took the defendant to a police officer and the officer told him that no one was in the
house. The defendant then started to walk back towards the house and a police officer grabbed
him. After a short struggle, the defendant asked if he was being charged and the police officer
responded that he was not. Cobb then took the defendant to the car where the defendant asked
Cobb to find a phone so that he could call his "wife." Cobb stated that the defendant then said,
"I should have killed that bitch last night when he came out." Cobb also stated that he drove the
defendant to the Model Motel and the defendant said, "Well, I know where my kids are now."
Cobb described the defendant as controlled, conversational and not greatly controlled by liquor.
The defense then rested.
In rebuttal, the State called fire investigator Billy Foster. Foster testified that he disagreed
with Neuf that there was a three- to five-foot layer of superheated air just below the surface of
the basement ceiling, which caused the basement fire. Foster stated that his opinion was based
on the fact that there were several other flammable artifacts in the basement that were not burned.
Foster said that the burning in the basement occurred from the floor upwards. Foster also stated
that on December 9, investigators observed a pile of unburned clothing on top of the dryer, and
the light bulbs in the ceiling were intact. The State then rested.
Trial Court's Ruling on Guilt
The trial court found the defendant guilty on all charges. The court stated that all of the
evidence pointed to guilt beyond a reasonable doubt. The court found that the defendant clearly
had a motive to commit the crimes, and referenced defendant's letter to Linda,
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