People v. Martin , 401 Ill. App. 3d 315 ( 2010 )

No. 3-09-0189
______________________________________________________________________________
Filed April 21, 2010
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2010
THE PEOPLE OF THE STATE OF )
Appeal from the Circuit Court
ILLINOIS, ) of the Twelfth Judicial Circuit,
) Will County Illinois,
Plaintiff-Appellee, )
)
v. ) No. 07-CF-1071
)
DAVID MARTIN, ) Honorable
) Richard Schoenstedt,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
Modified Upon Denial of Petition for Rehearing
JUSTICE McDADE delivered the opinion of the court:
______________________________________________________________________________
The State charged defendant, David Martin, with attempt (residential arson) and reckless
conduct. Following a bench trial, the circuit court of Will County found defendant not guilty of
attempt (residential arson) and guilty of reckless conduct. The trial court denied defendant’s
motions to reconsider, for judgment notwithstanding the verdict, and for a new trial. For the
reasons that follow, we affirm.
BACKGROUND
The reckless conduct charge alleged that defendant, acting in a reckless manner,
knowingly removed end caps to natural gas lines in the dwelling place of Christopher Campbell
in such a manner to endanger the bodily safety of Christopher Campbell.
1
Campbell testified at defendant’s trial that he lived in an apartment above a pizza
restaurant and that defendant was his landlord. On the morning in question Campbell’s
roommate woke him at approximately 6:30 a.m. Campbell smelled natural gas. He went to a set
of two gas meters on the west side of the building and turned off the valve he thought controlled
the gas for the restaurant. Campbell returned to bed. He woke several hours later and still
smelled natural gas. He returned to the gas meters and turned off the second gas valve.
Sometime later that morning, Campbell knocked on the door to the restaurant. In
response he heard a voice he recognized as defendant’s voice. Campbell left the apartment and
returned between a half-hour and two hours later. When he returned, he met an employee,
Mitchell, and they entered the restaurant because Campbell believed that the smell of natural gas
indicated that “something was disconnected.” Campbell went to the rear of the restaurant where
the furnace and water heater are located. He testified that, prior to entering with Mitchell, he had
not been in the restaurant either the night before or in the morning of the day question. He also
had not seen anyone else in the restaurant and did not actually see defendant there at all that day.
He discovered gas pipes disconnected from the furnace and water heater. Specifically, he saw
what he believed to be three-quarter-inch gas pipe for the furnace and water heater. He looked
for where the pipe appeared to connect and he reconnected them using his own tools. Campbell
then turned the gas back on and relit the furnace and heater.
Nicholas Martin, defendant’s son, testified that his father owned the pizza restaurant in
Joliet. In the morning of the day in question he and his sister picked their father up from the
restaurant. Nicholas testified that when he arrived at the restaurant, he found his father sleeping
inside. He drove his father to the father’s home in New Lenox. While returning to Joliet,
2
Nicholas stopped at a gas station and spoke to a police officer. He told the officer that his father
was attempting to commit arson at the restaurant whereupon the officer instructed Nicholas to
dial 9-1-1. Nicholas testified that he lied to the officer. Nicholas went to the restaurant and
spoke to police. He later went to the Joliet police department and gave police a videotaped
statement.
The trial court ruled that portions of the statement were inadmissible and that portions
were admissible into evidence. In his videotaped statement, Nicholas told police that he and his
sister went to pick up their father from the restaurant. Nicholas found his father to be
intoxicated. He had to help his father to the car and lay him in the back seat. On the videotape
Nicholas states that when they arrived at his father’s home, Nicholas had to help his father out of
the car. He also states that this father told him and his sister not to return to the restaurant
because “it was going to go ka-boom.” Nicholas stated to police that he asked his father about
the people in the building, to which his father replied that he would get rid of them, too. When
police asked Nicholas to explain what his father meant, he responded: “I can’t remember
directly but because he must have because [sic] I knew it was involved with gas lines, so I don’t
think that I inferred that, but somehow I knew going there that it was something to do with gas.”
In the statement, Nicholas told police that when he left his father in New Lenox, Nicholas went
to a friend’s house for advice.
At trial, Nicholas testified that when he picked his father up it was the first time he had
been to the restaurant that day. After he dropped his father off at home, he allegedly went to his
friend’s house, where she helped him fabricate the story he later gave police. He then returned
to the restaurant and, at some point, called police and told them that his father planned to commit
3
arson at the restaurant. Nicholas’s friend testified at trial that Nicholas contacted her the day
before she testified and asked her to testify that he told her he made up the story about arson to
get back at his father.
Nicholas also testified at trial that although he recalled giving the statement, and that he
lied, he did not recall specifically telling police that he had difficulty waking his father, that he
had to help his father to the car, that his father appeared to be intoxicated, or that he had any
conversation with his father that day. He did not recall telling police that he asked about the
tenants or that his father told him that he would get rid of the people in the building. Nor did
Nicholas recall telling police that anything “involved the gas lines.”
Officer John Williams of the Joliet police department testified that he responded to the
restaurant based on a report of a building filling with natural gas. He spoke to Nicholas at the
restaurant. When asked at trial whether Nicholas told him that Nicholas’s father planned to
commit arson, Williams responded “not in those words.” Williams later arrested defendant.
Detective Tim Powers spoke to Campbell. Campbell showed Powers where he had found four
end caps lying on the ground near the furnace and water heater. Another officer testified that
defendant appeared intoxicated at the jail.
Captain Thomas Douglas with the Joliet fire department testified that he responded to the
restaurant on the day in question. He turned off the gas to the oven and ventilated the building,
but he did not inspect the water heater.
Defendant moved for a directed verdict and the trial court denied the motion. Following
closing arguments, the trial court found that Campbell had turned off both gas lines and later
went to the area of the furnace and water heater, where he found end caps lying on the floor.
4
The court found that Campbell replaced the end caps and pipes. The court found that the end
caps were removed intentionally and that natural gas was escaping into the building and created
a dangerous situation. It based its finding in part on its own experience and observation that,
because Campbell was able to simply screw the end caps back on, the end caps, “weren’t broken
off, rusted off, cut off, or whatever.” The court concluded that defendant removed the end caps
endangering the bodily safety of Christopher Campbell. The court ruled that the State failed to
prove defendant committed attempt (residential arson) but did prove defendant guilty of reckless
conduct beyond a reasonable doubt. This appeal followed.
ANALYSIS
Defendant argues that the trial court erred in admitting Nicholas’s statement, recorded in
the videotaped interview with police, as substantive evidence pursuant to section 115-10.1(c)(2)
of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.1(c)(2) (West 2006)). Section
115-10.1(c)(2) reads, in pertinent part, as follows:
“In all criminal cases, evidence of a statement made by a
witness is not made inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony at the
hearing or trial, and
(b) the witness is subject to cross-examination concerning
the statement, and
(c) the statement–
***
(2) narrates, describes, or explains an event or
5
condition of which the witness had personal
knowledge, and
***
(c) the statement is proved to have
been accurately recorded by a tape recorder,
videotape recording, or any other similar
electronic means of sound recording.
Nothing in this Section shall render a prior inconsistent
statement inadmissible for purposes of impeachment because such
statement was not recorded or otherwise fails to meet the criteria
set forth herein.” 725 ILCS 5/115-10.1 (West 2006).
At trial, Nicholas testified that he did not recall telling police that on the day in question
defendant appeared intoxicated, that defendant mentioned getting rid of the tenants in the
building, or having a conversation with defendant at all. The State argues that Nicholas’s
statement is admissible as a prior inconsistent statement because (a) the earlier statement is
inconsistent with his trial testimony, and (b) the statement satisfies the personal knowledge
requirement. The State asserts that Nicholas’s videotaped statement is inconsistent with his trial
testimony because (i) he testified at trial that his prior statement was a lie and (ii) he claimed a
lack of memory as to the details of the prior statement. The State contends that defendant’s
statement about the tenants and that the building was going to “go ka-boom” is not a confession
to reckless conduct or arson but is merely a statement of defendant’s intentions.
“Where a witness claims that he cannot recall a matter at trial, a former affirmation of it
6
should be admitted as a contradiction.” People v. Leonard, 391 Ill. App. 3d 926, 933, 911
N.E.2d 403, 411 (2009), citing People v. Flores, 128 Ill. 2d 66, 87, 538 N.E.2d 481, 488 (1989).
In this case, defendant argues that the trial court erred in admitting Nicholas’s statement to
police because the record does not contain evidence that Nicholas observed defendant or anyone
else remove any end caps from any gas lines and, consequently, the statement does not
“narrate[], describe[], or explain[] an event *** of which [Nicholas] had personal knowledge.”
We review a trial judge's decision to admit or exclude hearsay statements under an abuse-
of-discretion standard. “A court abuses its discretion when its decision is clearly against logic,
when it acts arbitrarily, without employing conscientious judgment, or when in view of all the
circumstances, the court exceeded the bounds of reason and ignored recognized principles of law
so that substantial prejudice resulted.” People v. Gray, 378 Ill. App. 3d 701, 706, 883 N.E.2d
546, 551 (2008).
The statements at issue narrate, describe, or explain events or conditions of which
Nicholas had personal knowledge. The statements at issue involve statements that Nicholas
made regarding comments by a third party. Under section 115-10.1(c)(2) the determination of
whether a prior inconsistent statement concerning a third party’s comment satisfies the personal
knowledge requirement turns on whether the witness is passing along a comment that
substantively narrates or describes an event (asserted for the truth that the event occurred) or one
that simply relays a comment that does not contain such substantive information (not asserted for
the truth of the event). The former is the "type of *** ‘double hearsay’ statement, typified by the
admission-confession of the criminal defendant *** that has most concerned the judicial system,
for it raises the greatest danger of misapplication by the jury and the greatest risk of total
7
fabrication by the witness." People v. Wilson, 302 Ill. App. 3d 499, 509, 706 N.E.2d 1026,
1032-33 (1998).
Stated differently, if the witness’s prior inconsistent statement consists of what the
witness heard about an event, the prior inconsistent statement is inadmissible under section 115-
10.1. If the prior inconsistent statement consists of what the witness heard, and if what the
witness heard does not in turn narrate or describe an event, the prior inconsistent statement
satisfies the personal knowledge requirement of section 115-10.1(c)(2). By contrast, the latter
type of statement is "not an account of an event outside the personal knowledge of the witnesses
and, therefore, [is] admissible." Wilson, 302 Ill. App. 3d at 509, 706 N.E.2d at 1033.
The court’s judgment in People v. Saunders, 220 Ill. App. 3d 647, 658, 580 N.E.2d 1246,
1254 (1991), illustrates the distinction. The Saunders court distinguished between the witness’s
prior inconsistent statements as (a) regarding comments he had personally heard and (b)
comments he personally heard but which regarded events the witness learned about only through
the comments the witness heard. Saunders, 220 Ill. App. 3d at 658, 580 N.E.2d at 1254. One
statement by the witness was that the defendant told the witness he was going to "get" the victim
of a homicide and asked the witness whether he wanted to accompany him. The court ruled that
the witness’s statement of what the defendant personally said to the witness was admissible.
Another statement by the witness was that the defendant later told the witness that he "got" the
victim. The court found that statement was a statement about an event and that, because the
witness did not have personal knowledge of the event, the trial court erred in admitting it.
Saunders, 220 Ill. App. 3d at 658, 580 N.E.2d at 1254.
In this case, Nicholas’s prior inconsistent statement contains no information about an
8
event. The prior inconsistent statement at issue in this case relays only what defendant
personally told the witness: do not return to the building because it is going to go "ka-boom."
Based on defendant’s statement, the trier of fact could, and likely did, infer "that defendant had
already taken action to make the building go ‘ka-boom’ and to ‘get rid’ of the tenants." Slip
dissent at 1. The key, however, to our decision, is that Nicholas’s statement, on its face, does not
relay a comment by defendant that he did in fact remove any gas caps or did anything else that
amounts to the actus reus of the offenses charged. See also People v. Bartall, 98 Ill. 2d 294,
319, 456 N.E.2d 59, 71 (1983), quoting Fed. R. Evid. 803(3) ("defining exception to hearsay rule
as including ‘[a] statement of the declarant's then existing state of mind *** (such as intent, plan,
motive, design ***’) "); People v. Hansen, 327 Ill. App. 3d 1012, 1023, 765 N.E.2d 1033, 1043
(2002) ("under Illinois law, the declarant's statements of intent are admissible *** to establish
the declarant's intent and that the declarant acted in conformity with that stated intent" (emphasis
added)).
The statement regarding the tenants, that defendant would "get rid of them," is, therefore,
more analogous to the defendant’s statement in Saunders that he was going to "get" the victim
than the defendant’s statement in Saunders that he "got" the victim. The remainder of
Nicholas’s statement concerns his personal observations of defendant and his own inferences as
to the meaning of comments defendant made directly to him. The prior inconsistent statement
satisfies the personal knowledge requirement of section 115-10.1(c)(2). Accordingly, the circuit
court of Will County’s order admitting Nicholas’s videotaped statement to police into evidence
is affirmed.
Next, defendant argues that the State failed to prove him guilty beyond a reasonable
9
doubt because the evidence fails to establish that defendant performed any act endangering the
safety of anyone.
“When a court reviews the sufficiency of the evidence, the
relevant question is ‘whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.’ (Emphasis in original.) [Citations.]” People v.
Jackson, 232 Ill. 2d 246, 280, 903 N.E.2d 388, 406-07 (2009).
Defendant argues that the State failed to produce evidence to corroborate an inference
that defendant committed any relevant acts. Defendant also argues that the State failed to prove
that any gas on the premises came from the end caps defendant allegedly removed. He notes that
the fire department initially turned off the oven in the restaurant as the possible source of gas.
Defendant argues that the evidence established no more than that gas was being emitted in the
air. The evidence fails to establish the source of the gas.
"A person who causes bodily harm to or endangers the
bodily safety of an individual by any means, commits reckless
conduct if he or she performs recklessly the acts that cause the
harm or endanger safety, whether they otherwise are lawful or
unlawful." 720 ILCS 5/12-5(a) (West 2006).
"A person *** acts recklessly[] when he consciously
disregards a substantial and unjustifiable risk that circumstances
exist or that a result will follow, described by the statute defining
10
the offense; and such disregard constitutes a gross deviation from
the standard of care which a reasonable person would exercise in
the situation." 720 ILCS 5/4-6 (West 2006).
The statute defining the offense describes the result of the conduct in question as a result
which "endangers the bodily safety of an individual." Thus, to prove defendant’s guilt beyond a
reasonable doubt, the State had to prove that (a) defendant (b) removed the natural gas lines on
or about the date in question, (c) with a conscious disregard for a risk that doing so would
endanger Campbell’s bodily safety; in this case by resulting in an accumulation of natural gas in
the building.
"When assessing whether, taking the evidence in a light
most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the offense proved beyond a
reasonable doubt, the reviewing court should, first, determine the
ultimate conclusions of fact upon which a finding of guilt must be
based. These conclusions, of course, must comport with the
elements of the offense. Next, if the conviction is not based on
direct evidence, the court must identify the inferential steps the
trier of fact must have found to reach its ultimate conclusion.
Finally, and most importantly, the reviewing court must identify
facts of record, and not suppositions, upon which each inference
may reasonably be based." People v. Turner, 375 Ill. App. 3d
1101, 1114, 875 N.E.2d 175, 188-89 (2007).
11
First, the trial court, as trier of fact, could reasonably infer that the gas lines became
disconnected by an intentional act. The court admitted that it inferred that someone intentionally
removed the gas lines based on the fact that Campbell was able to reconnect them: a fact which
itself only implied that the lines had not broken or rusted off. "[T]riers of fact are *** free to
draw reasonable inferences from common experience (see, e.g., People v. Lambrecht, 231 Ill.
App. 3d 426, 439, 595 N.E.2d 1358, 1367 (1992) (‘the jury, utilizing its common experience and
knowledge, could draw its own inferences and conclusions’) )." Turner, 375 Ill. App. 3d 1101,
1114-15, 875 N.E.2d 175, 188-89 (McDade, J., dissenting).
Defendant points to nothing unreasonable about the court’s inference. Although it may
also be "not unreasonable" to infer that the pipes simply fell off, that is not the question this
court asks to determine whether we may reverse defendant’s conviction. "The inference to be
drawn need not be the only conclusion logically to be drawn; it suffices that the suggested
inference may reasonably be drawn." (Emphases omitted.) People v. Ehlert, 211 Ill. 2d 192,
244-45, 811 N.E.2d 620, 649 (2004) (Thomas, J., dissenting), quoting M. Graham, Cleary &
Graham's Handbook of Illinois Evidence §401.1, at 141-42 (7th ed.1999).
Similarly, then, another reasonable inference is that the end caps and gas lines became
disconnected on the day in question. Campbell testified that he could detect the odor of natural
gas accumulating in the building. He smelled natural gas after his roommate woke him.
Campbell also testified that he had to turn the gas mains to the building off. Those facts give rise
to the reasonable inference that there were no gas leaks before the day in question, when
Campbell discovered the disassembled end caps and gas lines, which Campbell or his roommates
would have detected sooner.
12
The facts also support a reasonable inference that defendant disconnected the end caps
and gas lines. As previously discussed, the facts support an inference that the gas lines became
disconnected on the morning in question. Independent facts support an inference that defendant
was in the restaurant within that time frame. Campbell testified to the fact of hearing
defendant’s voice inside the restaurant on the morning in question. The facts point to a
conclusion that someone was present because the facts imply that someone intentionally
removed the gas lines and Campbell heard a voice inside; but there are no facts from which to
reasonably infer anyone else’s presence in the restaurant, other than defendant’s, within the time
the gas lines became disconnected.
The State also met its burden to prove that the disconnected gas lines in question caused
the accumulation of gas in the building without direct evidence that the gas in the building
emanated from the disconnected water heater and furnace. Defendant is correct that no direct
evidence establishes the source of the natural gas. Therefore, the trier of fact had no choice but
to infer the source of the gas. However, "[a] conviction can be sustained upon circumstantial
evidence as well as upon direct, and to prove guilt beyond a reasonable doubt does not mean that
the jury must disregard the inferences that flow normally from the evidence before it." People v.
Patterson, 217 Ill. 2d 407, 435, 841 N.E.2d 889, 905 (2005).
"Circumstantial evidence is proof of certain facts from which a
jury may infer other connected facts that reasonably follow
according to the common experience of mankind." Ehlert, 211 Ill.
2d at 244, 811 N.E.2d at 649 (Thomas, J., dissenting).
The trier of fact could reasonably infer that the disconnected gas lines Campbell
13
discovered on the day in question caused the accumulation of natural gas in the building on that
same day. Campbell had not detected gas before. Although the fire department disconnected the
oven as a precautionary measure, no evidence established the oven as the source of the gas. No
dispute exists that the building contained an unnatural accumulation of natural gas. The
disconnected gas lines in question are a reasonable inference of the source of the gas.
Finally, the evidence supports a reasonable inference that defendant knew that the
disconnected gas lines carried a risk of causing an unsafe accumulation of natural gas in the
building, endangering Campbell’s safety. The evidence established that defendant warned his
own children not to return to the building because it was going to go "ka-boom." The trier of
fact could also believe Nicholas’s statement that defendant told him he would “take care of” the
tenants in the building. Defendant’s statements evidence defendant’s knowledge that
disconnected gas lines carry a substantial risk of endangering the bodily safety of another.
The totality of the evidence supports a reasonable inference that (a) defendant, (b)
removed the end caps to the gas lines, and (c) knew that the disconnected gas lines carried a risk
of causing an accumulation of natural gas in the building endangering Campbell’s safety. The
evidence supports a reasonable inference that the gas lines did not become disconnected as the
result of accident and that the disconnected lines--discovered for the first time on the day of the
incident--caused the accumulation of gas endangering the bodily safety of an individual. The
State met its burden to prove defendant guilty of reckless conduct beyond a reasonable doubt.
CONCLUSION
The judgment of the circuit court of Will County is affirmed.
Affirmed.
14
WRIGHT J., concurs.
PRESIDING JUSTICE HOLDRIDGE, dissenting:
I would hold that it was error for the trial court to admit the videotape of Nicholas’s
statement to the police. As the majority correctly observes, the question at issue is whether
defendant’s statement telling Nicholas not to go into the building because it was going to go "ka-
boom" was an admission-confession or a statement of his intentions. Section 115--10.1(c)(2) of
the Code of Criminal Procedure (725 ILCS 5/115--10.1(c)(2) (West 2006)) permits hearsay
concerning a defendant’s state of mind as to his intentions but does not permit hearsay
concerning an admission-confession to be admitted as substantive evidence. People v. Wilson,
302 Ill. App. 3d 499, 509 (1998). The distinction between a statement regarding the defendant’s
state of mind and an admission-confession is illustrated in People v. Saunders, 220 Ill. App. 3d
647, 658-59 (1991). In Saunders, the court held that a statement by the defendant that he was
going to "get" the victim was admissible while a later statement that he "got" the victim was
inadmissible. Saunders, 220 Ill. App. 3d at 658-59.
Here, the majority finds that defendant’s statement to Nicholas that the building was
going to go "ka-boom" and that defendant would "get rid of them" were analogous to the
defendant’s statement in Saunders that he was going to "get" the victim. I do not agree.
Defendant’s statements to Nicholas in the instant matter are far more analogous to the
defendant’s statement in Saunders that he "got" the victim. Since the statements allegedly made
by defendant to Nicholas were offered to establish that defendant had already taken action to
make the building go "ka-boom" and to "get rid" of the tenants, they were clearly offered as
confession-admissions, not merely to establish defendant’s state of mind regarding his intention
15
to set the building on fire. As such, I would find that the statements were inadmissible hearsay
and would hold that it was error to admit those statements. I would, therefore, reverse
defendant’s conviction and remand for a new trial at which the videotape of Nicholas’s statement
to the police would not be admitted.
For this reason, I respectfully dissent.
16