*1 profession owes given of whether case-by-case determination duty Congre not.” clients or undefinable extracontractual some J., dissenting). (Heiple, gation, 159 Ill. at 190 malprac- professional application of Moorman to agree We thing is clear: it to But one prefer as we would be. tice is not as clear must decide it way case or the other. And we We one must decide made judgment pursu- best is by exercising judgment; our best provided has 2314 Lincoln court us. guidance supreme ant to the appropriate guidance is the we have found. most opinion. proceedings for further consistent with Remanded J„ ZWICK, P.J., RAKOWSKI, concur. ILLINOIS, Plaintiff-Appellee, OF
THE PEOPLE THE STATE OF KINSLOE, Defendant-Appellant. SAMUEL Division) (6th First No. District 1 — 94—0267 Opinion filed June 1996. *3 dissenting part.
RAKOWSKI, J., concurring part in in and Gehl, Jeffrey Chicago, appellant. Bernard B. Nathan and I. of both for (Renee O’Malley, Attorney, Goldfarb, Chicago Jack of State’s Barbara Jones, Mahoney, counsel), Attorneys, and Janet C. Assistant of for State’s People. opinion
JUSTICE EGAN delivered the of the court: defendant, Kinsloe, wife, The Samuel of setting was accused his Laverne, fight. trial, on during fire At his Laverne exonerated him. juryA found him of guilty battery aggravated battery, heinous and upon burning, premised acquitted attempted both but him of judge years’ The trial him imprisonment murder. sentenced to 12 on battery judge the heinous He in conviction. contends erred admitting, him, against pretrial, as evidence inculpatory substantive allegedly argues statements made Laverne. He further that absent those statements there insufficient evidence convict him. only
Laverne Kinsloe was the in case. occurrence witness testify. did As a result of events which occurred February 17, 1993, covering she suffered her severe burns 30% of arms, chest, body, primarily According on her back and head. her, doctor who treated she will continue to suffer from these some of throughout prosecution testify life. The called her burns her knowing that she would state under oath that hinged upon expert she set on fire. The case somehow herself State’s origin about the and of fire and impeaching cause credibility, by using well as Laverne’s as substantive evidence Attorney’s testimony summarizing assistant State’s the contents pretrial writings allegedly inculpating made the defendant.
Laverne’s is as follows. Laverne 19, time, April they together married on 1992. At were lived Alsip, Illinois, with her house two minor children. The defendant Posen, two-flat, Illinois, owned another house in which he was renovating, process of financial In assistance. 1992, resi- August couple moved into the lower level the Posen marriage Laverne described to the defendant as "chaotic.” dence. sexually. This physically Laverne both The defendant abused began they abuse before were married. 1993,
During de- morning February Laverne and the *4 house, they got argument, Alsip fendant were at the where into subsequently her after the defendant left. Laverne went about p.m. At 11:30 returning house around day, the business for had defendant gifts the time, numerous she discovered that that Alsip to not return did missing. The defendant given her were night. There, in Posen. the house morning, drove to next Laverne china including computer, missing, that were found the items
she she materials for which found some renovation and linens. She also the car put these into paneling. She including some oak paid, had Alsip. to and drove back go- truck. She was pick-up in her p.m. Posen at 1
She returned to furniture, placed that she had items, ing additional such to remove she she arrived of the house. When a deck attached to the back the deck. She then things from had been removed noticed these get the door could not the house but attempted to enter the front of of the to the back although key working. She returned open, her appeared. gain entry building try to there when stairway running up an outside began him When she saw she got She inside upstairs apartment. the leads to a deck outside began choking and building, dragged her out the but the railing. The defendant calmed leaning and her the deck her over house, go, and walked into down and let Laverne then turned door, open he shutting him. She demanded that the door behind began talk- apartment, and the two and he relented. She entered the recommenced the ing at a distance of 10 to 15 feet. The defendant rising, finally told argument previous day, anger and he from the his responded that the house was as Laverne to leave the house. She her defendant had added much hers as his. Laverne believed that the her that he property. The defendant told name to the deed for the doing had so. lied about things in house very upset began pointing and
She became liquid Eventually, picked up a can of paid. she had she for which and through apartment She continued to move paste floor wax. door, attempted exit the front but pursued her. She The defen- had nailed it shut. could not because the defendant she banged her head began choking her and caught dant Laverne loose. pry the can against He also bent her thumb back the wall. wall, cap opened, and the Eventually banged against the can spilled carpeting. the wall and wax onto in her began kicking can and
The defendant took the contents of began screaming poured as he back and side. Laverne throat, ear and her. The wax entered Laverne’s the can of wax on high "getting body. Soon, began to feel herself and ran down her she Laverne, yelling continued to attack from the fumes.” The defendant her, picking up using battering her "as a ram hallway wall.”
Somehow, up Laverne ended in the bedroom. The defendant was blocking doorway, and Laverne could not leave. As she stood wall, she saw a "wallpaper cutter” on the window sill grabbed and hand, it in her left threatening to him cut if he did not move. She could precisely not recall what then occurred because she high was from the fumes at the time. gets She smokes when she ner- vous. Apparently in the mistaken belief that the wallpaper cutter cigarette, awas put she tried to it in her mouth. She heard the defen- say, "Laverne, dant don’t do it.” light Nonetheless she tried to Then, wallpaper something cutter. she felt on herself and tried to brush it off. She realized her hand wearing was on fire. She was a Chicago jacket Bulls’ jeans starter and and T-shirt. As she tried to unzip jacket, she realized her body whole was on fire. She indicated that level, the fire started at mid-chest approximately 10 or 11 inches below her neck. pleaded
She with the help Then, defendant to her. she felt something top on jacket of her and coming felt the off and remembers being it away, thrown "dropped as she was by and rolled” the defen- Nonetheless, dant. she continued to burn. She saw the defendant hallway, and he "get told her to in the water.” The defendant apparently was referring to the bathroom located off the bedroom. bathroom, She made it to the and the get told her to in the shower, first, and she did so. At there began was no water. She feel to "dripping her skin doing something off of’ her. The defendant was hands, with his finally but Laverne stated that she turned on the wa- thing ter. The next she being by paramedics remembered was taken hospital. Laverne Loyola University was taken to the Hospital burn unit. Loyola, At she was attended Dr. Richard Gamelli. When she ar- rived, she had been intubated so she could breathe. She could not speak and was any pain. medicated to relieve Dr. performed Gamelli multiple surgeries during early on Laverne spring of 1993 to replace remove and damaged skin tissue. acknowledged
Dr. Gamelli reports upon medical diagnosing treating he relied in and Laverne indicated that Laverne cigarette had lit a before the fire. Dr. Gamelli op- also had the portunity speak February. to toward the Laverne end of La- him simply verne told the fire and occurred while she together husband were and that "she was set on fire.” investigator Milton an Batson is arson for the State of Illinois investigated Fire Marshall. He the fire at the defendant’s house the cause expert on testify as also called him to The State Posen. in the can which the floor wax Batson examined origin and of fires. the material He stated that poured onto Laverne. flammable, material. Flam- combustible, opposed the can was those, emit sufficient gasoline, which are such as mable materials vicinity ignite in their only need hold a flame vapors that one hand, vapors, materials, emit fewer on the other them. Combustible ignite the materials ordinarily be touched to and a flame must them. retrieved the shirt at the scene
Police officers point To determine the cause wearing gave it to Batson. was for fabric shrink- involving clothing, Batson looks origin of a fire burning. Based indicating upward age, "V-patterns,” as well as shirt, determined Batson the condition of the fabric of Laverne’s upper chest area. origin the shirt on the left point of on the front of extinguished this fire was Batson also able to determine Batson also up top of the shirt. because it did not continue shirt, middle point origin the back of the toward the discerned a *6 right side. shirt, the front points origin
Because he saw two on the one on back, that the fire was not started and one on Batson determined (No accidentally. objection testimony nor is it as- was made to this court.) however, acknowledged, if a signed as error in this He caught wearing a material person a shirt covered with combustible ground, point on the a second point fire at one and then rolled stated, however, rolling origin could occur. He that such would shirt. produce V-pattern a as existed on the back of Laverne’s 1993, February 18, County Attorney On Assistant Cook State’s (ASA) time, Coyne Loyola hospital. at At the John visited Laverne by writing on speak *7 signature nor showed her the memo. judge permitted Coyne testify
The as to the answers Laverne allegedly wrote down —answers which contradicted trial testimony testimony pur- admitted the as substantive evidence —and suant to section 115—10.1 of the Code of Criminal Procedure of 1963. (West 1992). According Coyne, 725 ILCS Laverne wrote 5/115 —10.1 cutter, picked up wallpaper said, that after she the you.” kill "I’ll Then she wrote that the defendant "lit me on fire.” satisfy argues Coyne’s The did not defendant
807 10.1, admission as permits the requisites of section 115— state prior cases of inconsistent in criminal substantive evidence by ments a witness when:
"(c) the statement—
(2)narrates, describes, [***] or explains an event or condition knowledge, personal which the witness had (A) proved been written or the statement is to have witness, by signed or (B) making acknowledged the witness under oath ***, of the statement or
(C) accurately proved the statement is to have been recorder, recording, any by tape videotape or recorded recording.” 725 similar electronic means of sound other 10.1(c) 1992). (West ILCS 5/115— case, upon his judge In this the trial admitted Laverne’s statements finding Coyne’s testimony proved that Lá- that both Laverne’s and told her he would kill her veme had written both and that the defendant set her on fire. This was error. underlying policy prevent section 115—10.1 is "to a turncoat backing away
witness from
from a former statement made under cir
Fauber,
indicating
likely
People
cumstances
it was
to be true.”
v.
(1994).
381, 390-91,
clearly
App.
policy
Ill.
3d
This
is
N.E.2d 689
making
acknowledges
furthered when a witness
the inconsistent
electronically
statement or
been
recorded
when
statement has
making such that the fact-finder can hear or even see the witness
statement,
Thus,
deny making
types
and the
cannot
these
witness
it.
legislature
of statements
the ambit of
were included
within
they
inherently
section 115—10.1 because
are
reliable.
Car
(1995).
los,
Additionally,
App.
275 Ill.
the
we
no distinction between this case and a
involving
hearsay
person
case
the classic
in
situation
which one
testi
person
hearsay
fies what another
said. Such
is not admissible as
to.
10.1(c).
substantive evidence under section
People Denny,
v.
221
115—
(1991).
App.
Ill.
3d
We have examined
the cases
which courts have reviewed
admission,
evidence,
the
as substantive
of inconsistent written state
aware,
State,
ments. In each case of which
attempt
we are
the
when
ing
lay
statement,
to
a foundation for admission of the written
was
document,
it,
produce
confronting
able to
the actual
the witness with
offering
acknowledge
thus
the witness a chance
explain
it and
the
Willis,
surrounding
making.
circumstances
Ill.
E.g., People
its
v.
(1995); Dixon,
App.
App.
3d
Even when the State has been present ev writing, idence the explain existence of a it has been able to the surrounding unavailability, circumstances its as well as demonstrate was, fact, original People Baptist, unavailable. 19, 26-27, However, Baptist N.E.2d 1200 did not involve secondary proof prior the introduction of a in evidence of written Rather, case, consistent statement under section 115—10.1. in that prove subsequent to enable the State to crimes related to crime, charged permitted testify the witness was as to by contents a letter sent and later witness destroyed purportedly against in a a threat fire. The letter contained family the witness’ if her brother testified the defendant. event, any part In the record reveals no effort on the of the State attending purportedly to obtain the notes confiscated nurse. Thus, notes, existence, hospital those if in could well be in Laverne’s presented file. do not a sufficient foundation for We believe State admitted, assuming applies in this case. Baptist even here, allegedly Particularly where Laverne wrote the statements sedation, day being severely after burned and while under and where statement, laying of a having she denies we think written production of the written statement proper foundation includes Steig contemplates as much. See R. clearly itself. Section 115—10.1 in Il Substantive Evidence mann, Statements as Prior Inconsistent (1984) linois, (analyzing quantum of evidence 641-42 72 Ill. B.J. to section 115— pursuant that "document” offered necessary prove witness). 10.1(c)(2)(A) signed by was written or testimony, admitting Coyne’s judge, The trial ASA person person views another compared it to the situation where one sand, away by the writing something in the is then washed written, being If the he saw the statement tide. viewer testifies that clearly, acknowledges having something, and the writer written However, noted, judge proved to have been written. statement testify may if as to the contents of the the observer in that situation *9 testify from "writing,” there is no reason to disallow a mere listener heard, having ing speaker’s of the voice to what he has the sound away.” interpretation, Sullivan’s also "washed Under this ASA admissible as as to what Laverne told her should also be Yet, perfect example of substantive evidence. is hearsay, restricts its use to inadmissible and section 115—10.1 is, likewise, impeachment. Coyne’s testimony traditional ASA hearsay, and it cannot be used as substantive evidence under section 115—10.1
Alternatively,
any
admitting
the State
that
error in
contends
Coyne’s testimony
An error in the admission of
was harmless.
evi
only
remaining
dence is harmless
if the
evidence in
record "is so
overwhelming
jury
reasonably
that no fair-minded
could
have voted
346, 352,
Solis,
acquit
App.
v.
3d
People
defendant.”
"
(1995).
The evidence in as to all of the evi- record, explicitly implicated dence in the Indeed, the defendant in this crime. ignited only in whether the defendant the fire is the issue and, wavering, this without asserted case. Laverne took stand jury obviously that the defendant did not set her on fire. The doubt, alleged disregarded testimony, large part due to her this no "writing” him, only non- implicating statement which became testimony. As to Laverne’s we circumstantial evidence addition below, inescapably point to explain remaining does not evidence Under such cir- the defendant as the one who set Laverne on fire. cumstances, Coyne’s testimony as substantive evi- the admission of dence was not harmless error. part, argues
For his
that his conviction should
because,
outright
be
Coyne’s testimony
reversed
in the absence of
statements,
absolutely
there was
no substantive
evi
jury
guilty
battery.
dence
which a
could find him
of heinous
responds
The State
the defendant has
for
waived
issue
purposes
argument
appeal
review because his brief and
do not
341(e)(7) (134
satisfy
requirements
Supreme
Court Rule
Ill. 2d
341(e)(7)),
argument
R.
that all
supported
be
citation to relevant
authority. However,
insufficiency
a claim
sup
of the evidence to
port a
recognized
criminal
is a
exception
conviction
to the waiver
(1993).
160,
People Lopez,
App.
162,
rule.
3d
In of the we examine the light record in a prosecution most favorable to the to determine any whether rational trier of fact could have found the essential ele beyond ments of the offense a reasonable v. Virginia, doubt. Jackson 307, 318-19, 2781, 443 U.S. 61 L. Ed. 2d 99 S. Ct. 2788-89 (1979); 27, 29-30, v. Negrete, 258 Ill. charged battery pursuant defendant was with heinous 1961,
section 12—4.1 of the Criminal requires Code of he, prove "committing battery, State knowingly causes se permanent disability disfigurement by vere and or means of a caustic (now 38, par. substance.” Ill. Rev. Stat. ch. 12—4.1 720 ILCS (West 1994)). The State’s indictment of the defendant 5/12 —4.1 charged battery committed heinous when he "poured liquid Kinsloe[,] paste ignited liquid wax on Laverne paste wax and set Laverne Kinsloe on fire.”
Here, wax, poured concedes that he combus- substance, tible onto Laverne. The record also reflects that Laverne permanent disfigurement. has suffered severe and must determine We jury whether the record contains sufficient evidence from which a wax, ignited setting could conclude that it was the defendant who Laverne on fire. only noncircumstantial evidence in the record as to who set Laverne, came that the defendant
Laverne on fire
from
who testified
Thus,
885,
App.
People
Szymanowski,
did not do it.
as in
v.
182 Ill.
3d
888,
(1989),
presented
811 trial, La injuries). At caused her that the defendant psychiatrist told 888, at App. 182 Ill. 3d verne, Szymanowski, like the witness steadfastly the defendant’s innocence. maintained manner, impeached in this Szymanowski, that Laverne was
As in
the crime
however,
committed
prove
does not
not
charged.
"[were]
earlier statements
This is so because Laverne’s
court,
stated out of
but
proof of the truth of the facts
admitted as
inconsistency.”
testimony by showing
People
[her]
cast doubt on the
(1991).
658, 666,
See
Larry,
App.
v.
3d
578 N.E.2d
(1994)
Cruz,
314, 359,
(purpose of
v.
Ill. 2d
"The
attack
inconsistent statements is
assumption
present testimony
based on the
is false and
talking
the former statement
rather
true but
the notion
way
way
blowing
previously
one
on the stand and
is
hot
another
cold and raises
doubt as to the truthfulness of both state-
(4th
34,
Strong,
ments.” J.
McCormick
at 114
ed.
on Evidence §
1992).
"
Thus, impeachment by prior inconsistent
statement
out
'cancel[s]
” Cruz,
testimony.’
quoting People
witness’
162 Ill. 2d at
(1982).
Weaver,
analysis.
The evidence in
supports
this case
There is
testimony
Coyne
that Laverne told ASAs
and Sullivan that
the de
fire;
fendant set her on
but Laverne denies that she told them that
paramedics
had set her on fire. She
told
cigarette
caught
that she lit a
before she
fire and that she was set on
merely
fire
accident. She told Dr. Gamelli
that she was set on fire.
Finally,
jury
she told the
Al
under oath that she set herself on fire.
though
ordinarily
we
of fact to determine the
would
leave
finder
credibility
witness,
credibility
prerogative
weigh
of a
it is our
unsatisfactory
where the
is so
as to raise
reasonable
guilt.
People Bailey,
doubt of
638 N.E.2d
circumstances,
Under the
trial
un-
we find Laverne’s
persuasive
guilt. Certainly,
be used to draw the
to establish
it cannot
that,
all,
negative
inference
because she is not to be believed
defendant,
only
person present,
as the
must have set her on
other
effectively
impeachment
fire.
into
To allow that would
turn
evidence
Indeed,
occurring
danger
it
of that
substantive evidence.
is the
*11
supreme
recently
whether,
has led our
question
light
court
to
of
10.1,
the advent of section
"the introduction of oral inconsistent
115—
guise
impeachment
statements under the
of
should be foreclosed.”
Cruz,
364-65,
citing Steigmann,
2d at
Excluding origins fire, as to the of the remaining significance circumstantial evidence of came in the form expert opinion testimony Batson, investigator, from the arson and surrounding the circumstances the altercation between Laverne and finding guilt may the defendant. A rest circumstantial evi dence, proof give is the of facts or circumstances which rise to a reasonable inference guilt of other facts which tend to establish or Campbell, innocence. 146 Ill. 2d (1992). Although prosecution every need not exclude reasonable hypothesis Pintos, (People of innocence (1989)), proof guilt N.E.2d 344 in such cases still must establish beyond a reasonable doubt.
The evidence shows the defendant and Laverne were fight. poured paste involved in a He beat and her choked wax on point, caught At her. some the front of her shirt on fire. She tried to pat something, apparently out the flames. She felt the defendant on her, her, top "dropped in an who and rolled” unsuc attempt extinguish ignited, cessful to the fire. The back of her shirt burn, but when is unclear. Laverne continued to and she saw the de directing get fendant to into the shower in the bathroom. Eventu on, Laverne, ally, although precisely perhaps water was turned record, po how is also unclear from the and the fire was doused. The lighter lice recovered a from the floor of the shower. This chain of defendant, events does not lead to a reasonable inference that victim, ignited rather than the the fire. relying exclusively
The State seeks draw that inference testimony. Batson’s Batson stated that the shirt wear- Laverne was ing origin, points contained two of fire one in front and one back. Therefore, according expert, to the the fire could not have started ac- harm, although cidentally, cause we but was done so with intent ignited determine fail discern he that the fire was with how could intent to cause harm.
Furthermore, inescapably to the Batson’s does lead acknowledged the fire. Batson conclusion that the defendant started shirt, if had started the fire on the front of her the act ground rolling her could dropping of the defendant her to the that, the fire on the ignited have the back of her shirt. He also stated Although extinguished. front had been Batson stated upward, the shirt indicates it burned V-pattern burn on the back of standing struggled as she that Laverne was the evidence indicates Finally, fact shower, V-pattern. get which accounts for the flammable, combustible, does not rather than paste wax was way was covered lead to an inference one or the other. Laverne *12 holding a by the fumes. If she was paste wax and was intoxicated accidentally claims, imagine her lighter, it is not difficult to as she is also no evidence from which touching the flame to the wax. There jury lighter in the shower was could infer recovered dropped by the defendant rather than Laverne. La
None of the circumstantial evidence is inconsistent with testimony. Thus, Szymanowski, verne’s trial like the court in acknowledge presented by App. 3d at while that evidence "[w]e suggests responsible,” we can the State defendant could have been not that the defendant com conclude there is sufficient evidence doubt, charged beyond the crime and we are not mitted reasonable "abiding guilt.” Bailey, left conviction of defendant’s 271. foregoing reasons, judgment For court is re- of the circuit versed.
Judgment reversed.
McNAMARA, J., concurs. RAKOWSKI, concurring dissenting
JUSTICE part part: I agree prior that the admission of Laverne Kinsloe’s inconsistent However, statement was error and that the error harmless. majority, evidence, unlike remaining I in a believe taken light prosecution, most favorable to the is such that a rational trier (720 battery of fact could find the essential elements of heinous ILCS (West 1994)) beyond Thus, although a reasonable doubt. 5/12 —4.1 guilt the evidence overwhelming of defendant’s is not so as to render harmless, the error it is nevertheless sufficient to convict. See Enis, N.E.2d judgment I would reverse the of the circuit court and remand for a new trial. unable to and communicated notes Laverne was Coyne and that clipboard. acknowledged a Laverne visited her that she wrote that questions. she wrote answers to his She denied her, grabbed wallpaper you,” the defendant told "I’ll kill after she communicating Coyne that the defendant cutter. She also denied "No, did that.” cigarette lighter took a and set her on fire: he never At- paramedics and the assistant State’s She insisted that she told others, an accident. torneys, burning incident was as well as 13, April on telling denied ASA Laura Sullivan Laverne also denied 1993, lighter. She also that the defendant set her on fire with proceed on telling July that she did not want to Sullivan on entered into an charges against because she had pay her back for agreement him which he would under ($51,000) possession take property in his and she would investment property his in Posen. The impeach State called Sullivan to credibility on April July the substance of their 13 and 22 conversa- tions. Coyne ASA testified that he interviewed the defendant on Febru- 17, ary day of the incident. defendant was under arrest the time. He stated that had Alsip thrown him out of the February home on 16 because he had not executed a deed to her for property. his He went to the Posen house after this. He nailed the door shut at the Posen things missing house because he noticed believed acknowledged Laverne had taken them. He pouring wax on beating Laverne and setting her. He denied Laverne on fire. He stated altercation, that at point during some away, he walked but then scream, heard Laverne and he turned and Laverne was on fire. She had smoking not been at the holding lighter. time nor had she been Coyne ASA again February talked with the defendant af- Coyne time, ter had visited At that Laverne. stated that Laverne had set lighter herself on fire. He said that she took and "lit area her left above breast on fire.” The defendant had not told him previous day Coyne this the he because did not want crazy. think Laverne was Coyne also testified about his interview with Laverne at the hospital. room, When he entered Laverne’s her entire head was wrapped bandages, acknowledged and a tube was in her mouth. He questions by that Laverne answered writing paper his them on at- a clipboard attending tached to held nurse. Before he left the hospital, notes, purportedly pursuant the nurse confiscated the hospital policy. produce trial, The State did not the notes for nor did it Coyne’s testimony. Additionally, call the nurse to corroborate efforts, State indicating any, offered no evidence what if it had under- accepted explanation taken to obtain the notes. The State the nurse’s hospital precluded giving rules her from them the notes. The attempt subpoena Coyne State did not the notes. summarized La- signed; verne’s answers after their conversation in a memo which he however, he neither offered the memo to Laverne for her