People v. Avery

592 N.E.2d 29, 227 Ill. App. 3d 382, 169 Ill. Dec. 542, 1991 Ill. App. LEXIS 1692
CourtAppellate Court of Illinois
DecidedSeptember 30, 1991
Docket1-88-2408
StatusPublished
Cited by12 cases

This text of 592 N.E.2d 29 (People v. Avery) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Avery, 592 N.E.2d 29, 227 Ill. App. 3d 382, 169 Ill. Dec. 542, 1991 Ill. App. LEXIS 1692 (Ill. Ct. App. 1991).

Opinion

JUSTICE CAMPBELL

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant Jesse Avery was found guilty of aggravated arson and two counts of murder in connection with a fire which occurred at 4109 West Madison Street on August 8, 1986. Defendant was sentenced to 40 years’ imprisonment. Defendant now appeals, arguing that: (1) the trial court improperly admitted evidence concerning other crimes; (2) the trial court improperly admitted evidence of polygraph examinations taken by defendant and a witness; (3) the trial court conducted an investigation outside the record developed at trial; and (4) the State failed to prove him guilty of the charged offenses beyond a reasonable doubt. For the following reasons, we affirm.

THE TRIAL

The report of proceedings at defendant’s trial indicates the following. Benjamin Scott testified that he lived at 4109 West Madison during the summer of 1986. Scott stated that he paid no rent to live there because he sold drugs on behalf of defendant. According to Scott, several months prior to August 8, 1986, defendant had offered him $5,000 to set fire to the building, half to be paid in advance. Scott further stated that defendant told him he wanted the building burned because he had $100,000 of insurance on it. Defendant told him to make sure that babies and young ladies were not in the building when it was to be burned. Scott testified that about a month before the alleged arson, defendant told the tenants in the building to buy fire insurance. Scott also testified that he refused this offer twice. Scott stated that the last time he spoke with defendant, several months before the alleged arson, nothing was said about a fire.

On cross-examination, Scott admitted to occasional use of cocaine and a prior conviction for armed robbery. He also stated that while he had moved out of the building several months before the alleged arson, he continued to sell drugs from that location. Scott stated that although defendant always had money in his pocket, defendant did not offer him money or supplies with which Scott could burn the building. Finally, Scott stated he did not know that defendant did not own the building.

Kenneth Campbell testified that the building was owned by an absentee landlord, Mr. Schavin. Campbell stated that he was going to replace defendant as the building manager at 4109 West Madison once a community group rented the entire building.

Campbell testified that there had been a fire in the building about a week before the alleged arson. Campbell had a conversation with defendant shortly thereafter in which Campbell told defendant that he did not think the fire was accidental and defendant replied that “he would not have that problem anymore.” On August 8, 1986, Campbell went to the building upon hearing of the fire. Campbell heard someone say that a body was being brought out of the building and went to the back of the building. Campbell found out that the body was that of Bill Coney, whom Campbell knew. Over defendant’s objection, Campbell further testified that he saw defendant at the scene of the fire and told defendant that he knew defendant was responsible for the fire.

George Newby, Jr., testified that he was a tenant of the building at the time of the alleged arson. He also testified that about a week before the alleged arson, defendant had turned off the electricity in the building and that power was later restored. Between the time the power was restored and the alleged arson, Newby, Jr., his father and several other tenants were told by defendant that “all you sons of bitches are going to roast.” Newby, Jr., further stated that he saw defendant and Robert Divine leave the building at some time between 1 and 1:30 a.m. the night of the alleged arson. On cross-examination, Newby, Jr., testified that the electricity in the building was not very good.

George Newby, Sr., testified that in August 1986, he was a tenant of 4109 West Madison, living with his son. On August 8, 1986, he saw defendant shut off the lights in the building by unscrewing a fuse in a utility closet on the second floor of the building. Newby, Sr., called the police; following their arrival, Newby, Sr., restored the lights by replacing a fuse in the fusebox. Later that evening, Newby, Sr., and several other tenants were told by defendant that defendant had shut the lights off again and offered to turn them back on for $20 dollars. Newby, Sr., refused, at which time defendant said “I will fry all you so and so’s." Newby, Sr., then placed these events as happening the evening of August 7, 1986, the day before the alleged arson. At approximately 2 a.m. the following morning, Newby, Sr., woke up because Robert Divine was shouting that there was a fire.

Newby, Sr., further testified that the owner of the building, Mr. Schavin, had told him not to pay rent for a few months prior to the alleged arson because the building was to be turned over to Butch Campbell and the existing tenants would have to move. Defendant had advised Newby, Sr., to buy fire insurance about two or three months prior to the alleged arson.

Robert Divine then testified that he was defendant’s stepbrother. In August 1986, he had lived at 4109 West Madison rent-free and believed that defendant owned the building. Divine further believed that defendant was a roofer and contractor and was unaware that defendant was dealing drugs. According to Divine, on August 8, 1986, at about 1 a.m., he awoke in his second-floor room and went to the washroom. Returning to his room, he heard a crackling coming from the utility closet, but did not look inside the closet, believing the noise to be rats. About 15 minutes later, Divine smelled smoke. Looking out into the hall, Divine saw fire coming out of the utility closet and began shouting fire and warning everyone to leave the building.

Divine then testified that he did not start the fire and had no idea how it started. Then Divine testified that from 6 a.m. to midnight the following day, he had spoken with the police about the fire, taken a polygraph, spoken further to the police and later he gave a written statement to a State’s Attorney. This written statement was ruled admissible as substantive evidence, pursuant to section 115 — 10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 115 — 10.1). At this point, the trial was continued to the following day, in order that Divine could be represented by his attorney.

THE VOLUNTARINESS HEARING

The next day, the court held a hearing to determine whether Divine’s written statement was voluntarily made. Divine was recalled and testified that he wished to change his prior testimony to reflect that he did know that defendant was selling drugs from 4109 West Madison. After the State granted Divine immunity from prosecution for perjury, Divine again testified that he gave the written statement to a State’s Attorney.

The written statement indicated that Divine had been read and understood his constitutional rights. Divine’s statement indicated that defendant dealt drugs from the building, had demanded money from the tenants to restore their electricity and was going to be replaced as the manager of the building. Divine stated that at about 9:30 p.m.

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Cite This Page — Counsel Stack

Bluebook (online)
592 N.E.2d 29, 227 Ill. App. 3d 382, 169 Ill. Dec. 542, 1991 Ill. App. LEXIS 1692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-avery-illappct-1991.