No. 12572
I N T E SUPREME COURT O THE STATE O M N A A
H F F OTN
STATE O M N A A
F OTN,
P l a i n t i f f and Respondent,
-vs -
JAMES BURTCHETT,
Defendant and Appellant.
Appeal from: D i s t r i c t Court of t h e Twelfth J u d i c i a l D i s t r i c t ,
Honorable B. W. Thomas, Judge p r e s i d i n g .
Counsel of Record:
For Appellant :
Morrison, E t t i e n and Barron, Havre, Montana
3. Chan E t t i e n argued, Havre, Montana
For Respondent:
Hon. Robert L. Woodahl, Attorney General, Helena,
Montana
3. Michael Young, A s s i s t a n t Attorney General, argued,
Helena, Montana
Ronald W. Smith, County Attorney, argued, Havre, Montana
Submitted: June 12, 1974
Decided : SEP 1 3 1974
Filed :$w13 1974
Honorable Robert K e l l e r , D i s t r i c t J u d g e , s i t t i n g i n p l a c e o f
Mr. Chief J u s t i c e James T . H a r r i s o n , d e l i v e r e d t h e Opinion o f
t h e Court.
A p p e l l a n t , d e f e n d a n t below, w a s c o n v i c t e d o f t h e c r i m e
o f a r s o n i n t h e f i r s t d e g r e e and a r s o n w i t h i n t e n t t o d e f r a u d
a n i n s u r e r , by j u r y , i n t h e d i s t r i c t c o u r t of t h e t w e l f t h j u d i -
c i a l d i s t r i c t of t h e S t a t e of Montana, i n and f o r t h e County of
Hill, b e f o r e t h e Honorable Bernard W. Thomas.
A p p e l l a n t ' s r e s i d e n c e , l o c a t e d s i x m i l e s s o u t h of Havre,
Montana, was s u b s t a n t i a l l y d e s t r o y e d by f i r e on t h e n i g h t of May
1 4 , 1971. The Havre c i t y f i r e m a r s h a l , R i c h a r d D . Habeger, who
was a l s o a s p e c i a l d e p u t y s t a t e f i r e m a r s h a l , inspected t h e
p r e m i s e s on May 1 5 , 1971, t o o k s e v e r a l p i c t u r e s , b u t was u n a b l e
t o make a d e t e r m i n a t i o n a s t o t h e c a u s e of t h e f i r e . The S t a t e
F i r e Marshalts O f f i c e , a t t h e i n s t i g a t i o n of t h e a p p e l l a n t ' s
f i r e i n s u r a n c e company, c a l l e d Habeger and r e q u e s t e d t h a t he go
back t o t h e p r e m i s e s f o r a more d e t a i l e d i n s p e c t i o n . Habeger
r e t u r n e d on May 21, 1971, t o o k 1 5 o r 2 0 p h o t o g r a p h s and c o l l e c t e d
samples from seven d i f f e r e n t h o l e s burned i n t h e f l o o r . Samples
from o n e of t h e burned h o l e s , a d j a c e n t t o t h e f l o o r f u r n a c e , were
p l a c e d i n a two pound c o f f e e c a n , u l t i m a t e l y a d m i t t e d i n t o e v i -
d e n c e a s e x h i b i t D ; samples from s i x o t h e r h o l e s , f u r t h e r removed
from t h e f l o o r f u r n a c e , were p l a c e d i n t o a n o t h e r two pound c o f f e e
c a n , and u l t i m a t e l y marked a s e x h i b i t E , b u t r e f u s e d a d m i s s i o n
i n t o evidence a t t h e t r i a l . Habeger m a i l e d b o t h e x h i b i t s t o t h e
a l c o h o l , t o b a c c o and f i r e a r m s l a b o r a t o r y i n Washington, D.C.,for
e x a m i n a t i o n and r e p o r t on May 2 4 , 1971. H e d i d not receive an
immediate r e p l y .
I n August, 1971, a p p e l l a n t e n c o u n t e r e d Habeger a t t h e
H i l l County F a i r and a s k e d i f t h e r e had been any r e s u l t s from
the investigation. Habeger r e p l i e d i n t h e n e g a t i v e . I n March,
1972, a p p e l l a n t s e t t l e d h i s c l a i m w i t h h i s i n s u r a n c e company,
decided to tear down what was left of the residence, and then
rebuild. Finding no one to tear down the building, appellant
decided to burn down the remainder of the building. He cleared
the burning with the City of Havre fire department and with Hill
County, but not specifically with Habeger, and in late May 1972,
burned down the remainder of the building.
The samples had been received by the alcohol, tobacco
and firearms laboratory in Washington, D. C., tested on June
16, 1971, and the results, showing the presence of accelerants,
mailed back to Habeger. Unfortunately, at the time the results
were returned, the Havre city fire department was moving its
residence and Habeger was on vacation. The letter with the re-
sults was deposited with some junk mail in a cubbyhole in a desk
in the new firehall where it lay unnoticed until late September,
1972, some 15 months later, when Habeger was looking for some
material for Fire Prevention Week. He immediately turned all the
results of this investigation over to the county attorney for Hill
County and this prosecution followed.
Appellant's contentions are as follows:
1. That the court erred in refusing to dismiss the charges
on the grounds of prejudicial delay;
2. That the court erred in admitting Exhibit D;
3. That the court erred in admitting the evidence from
the forensic laboratory.
Addressing appellant's first contention, there is no ques-
tion but that a delay in time between the commission of an offense
and the commencement of the prosecution, by the filing of an in-
formation termed "preindictment delay" can be the denial of due
process. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455,
30 L Ed 2d 468. Mere delay, in and of itself, is not sufficient.
There must be either actual prejudice to the conduct of the defense,
or that the State intentionally delayed to gain some tactical
advantage over appellant, or to harass him. United States v.
Marion, supra.
In the instant case, appellant concedes in his brief
that mere delay is not prejudicial in itself and that the delay
in this instance was neither intentional nor purposeful. He
does contend, however, that by the time he was put on notice
he was the subject of criminal action, the physical evidence had
been destroyed, and he was substantially prejudiced thereby.
At a pretrial suppression hearing and at the trial, appel-
lant called as a witness a chemist from Northern Montana College
who testified that by the use of a gas chromatograph he could
determine whether or not samples from other portions of the floor
contained the same components that chemists in the alcohol, to-
bacco and firearms laboratory in Washington, D. C., found in the
sample taken from the holes that had burned through the floor of
the house. Evidence had been introduced by appellant that a con-
siderable amount of kerosene smoke had been permitted to collect
on the underside of the floor (from thawing frozen pipes in the
cellar on a number of occasions), and that there was inlaid
linoleum on the floor of the house, held in place by either asphalt
or some other petroleum-based compound. Appellant's chemist test-
ified that either, or both of these conditions could have given
rise to a finding by the State's chemist that there were accel-
erants present. He would have ground up samples from the floor,
placed them in an oven under heatland analyzed the gases.
The chemist from the alcohol, tobacco and firearms labor-
atory used gas chromatography but with a different approach. Whe~~
the samples were first collected by the deputy state fire marshal
and placed in coffee cans, plastic lids were placed over the cans
and then taped into place. When the government chemists received
these cans they inserted a syringe through the plastic lid in-
to the can, withdrew the vapors then existent, and used the
gas chromatograph upon the vapors. They found gasoline or naptha
present in both cans. These were defined as accelerants, highly
volatile, and with an exceptionally low flash point. They fur-
ther testified that if a volatile petroleum distillate had been
placed upon wood, and then stored in the open, it would not only
gradually evaporate, but after a period of several months, there
was no reliable technique known to detect and identify the petrol-
eum distillate. In addition, they testified that the sooty resi-
due from the kerosene burn and the asphalt used to set the linol-
eum were not volatile petroleum distillates.
In other words, the report from the government chemist
was received in Havre about the end of June, 1971, more than a
month following the fire. All that a chemist for the appellant
could have found at that date was that he could find no presence
of accelerants, which would be expected.
On the other hand, the samples examined by the government
chemist, offered as State's exhibits D and E, were still intact,
still sealed, and still capable of examination. For reasons not
shown in the record, appellant never asked that his chemist be
permitted to examine those to show that the government chemists
were in error, if they were. In other words, the only evidence
available to the chemists for the state was still available for
the chemists for the appellant.
The trial court was correct in holding that there was no
actual prejudice to the appellant occasioned by the preindictment
delay.
Appellant's second contention is that the court erred in
admitting @xhibit D l one of the coffee cans containing samples from
one of the holes burned through the floor. The contention is without
m e r i t , b o t h f a c t u a l l y and l e g a l l y .
Deputy s t a t e f i r e m a r s h a l Habeger t e s t i f i e d t h a t he
t o o k a l l o f t h e samples from each of seven h o l e s , t h a t he p u t
two o r t h r e e samples from t h e f i r s t h o l e i n one can ( e x h i b i t D )
and t h e n he p u t t h e r e m a i n i n g samples i n t h e second can ( S t a t e ' s
proposed e x h i b i t E ) . He made a s k e t c h o f t h e p r e m i s e s and on
t h e s k e t c h i n d i c a t e d where e a c h of t h e s e v e n h o l e s was. The f i r s t
h o l e was n e a r t h e f l o o r f u r n a c e and upon H a b e r g e r ' s s k e t c h he
indicated "point of origin". Hole number o n e was n e v e r e s t a b l i s h e d
a s t h e " p o i n t of o r i g i n ' by any p r o o f ; i n f a c t , Haberger t e s t i -
f i e d t h a t h e b e l i e v e d a l l seven h o l e s t o be s i m u l t a n e o u s p o i n t s
of o r i g i n . A p p e l l a n t ' s c o u n s e l c o n t i n u e d t o r e f e r t o h o l e number
one a s t h e p o i n t of o r i g i n , and t h e t r a n s c r i p t i s c l e a r t h a t a p p e l -
l a n t ' s c o u n s e l became c o n f u s e d by H a b e g e r ' s t e s t i m o n y and b e l i e v e d
t h a t Habeger had p l a c e d samples from t h e f i r s t t h r e e h o l e s i n
t h e f i r s t c a n and samples from t h e r e m a i n i n g f o u r h o l e s i n t h e
second c a n . S i n c e Habeger c o u l d n o t e s t a b l i s h which h o l e s had
a c c e l e r a n t s and which o n e s d i d n o t , d e f e n s e c o u n s e l convinced t h e
t r i a l c o u r t t h a t t h e samples i n t h e second can were comingled,
some coming from h o l e s t h a t had a c c e l e r a n t s and some coming from
holes t h a t did not. The same argument i s b e i n g used h e r e t o show
t h a t t h e same s i t u a t i o n was t r u e w i t h t h e f i r s t can o f samples.
The t r i a l c o u r t was n o t c o n f u s e d by t h e t e s t i m o n y and knew t h a t t h e
samples i n t h e f i r s t c a n , e x h i b i t D , came from o n l y one h o l e , t h e
first hole, t h e "point of o r i g i n " hole.
The o n l y e r r o r committed by t h e t r i a l c o u r t , and it was
h a r m l e s s , was i n e x c l u d i n g S t a t e ' s proposed e x h i b i t E . There
s h o u l d have been no a c c e l e r a n t s i n t h a t house and t h e d e p u t y s t a t e
f i r e marshal t o o k samples from t h a t house and t h e r e were a c c e l -
e r a n t s i n b o t h samples. What p o s s i b l e d i f f e r e n c e c o u l d i t make,
under t h e f a c t s i n t h i s c a s e , which h o l e had t h e a c c e l e r a n t s ?
The S t a t e w a s i n a p o s i t i o n t o prove t h a t t h e r e were a c c e l e r a n t s
i n a t l e a s t two d i f f e r e n t p l a c e s and e x h i b i t E s h o u l d have been
admitted.
Appellant's t h i r d contention is t h a t the court erred
i n a d m i t t i n g t h e e v i d e n c e from t h e f o r e n s i c l a b o r a t o r y i n two
particulars. A p p e l l a n t ' s f i r s t p o i n t i s t h a t once t h e samples
r e a c h e d t h e f o r e n s i c l a b o r a t o r y i n Washington, D . C . , there were
s e v e r a l p e o p l e who had a c c e s s t o t h e l a b o r a t o r y and t h e r e f o r e t h e
c u s t o d i a l c h a i n of e v i d e n c e was n o t e s t a b l i s h e d .
The samples i n q u e s t i o n w e r e c o l l e c t e d by t h e d e p u t y
s t a t e f i r e m a r s h a l , packaged by him and m a i l e d by him t o t h e a l c o -
h o l , t o b a c c o and f i r e a r m s l a b o r a t o r y i n Washington, D.C. One of
t h e c h e m i s t s from t h a t l a b o r a t o r y t e s t i f i e d t h a t he r e c e i v e d t h e
package, t h a t it was k e p t i n t h a t l a b o r a t o r y and t h e s e c u r i t y room,
it was examined by one of t h e c h e m i s t s from t h a t l a b o r a t o r y who
a l s o t e s t i f i e d and it had been k e p t i n t h e e v i d e n c e room a t t h a t
l a b o r a t o r y u n t i l t h e two c h e m i s t s b r o u g h t t h e samples t o Montana.
T h i s i s a l l t h a t i s r e q u i r e d f o r a prima f a c i e c a s e . The S t a t e
must i d e n t i f y t h e p a r t i c u l a r e x h i b i t a s r e l e v a n t t o t h e c r i m i n a l
c h a r g e and must show prima f a c i e t h a t no a l t e r a t i o n o r t a m p e r i n g
with t h e e x h i b i t has occurred. S t a t e v . Wong Fong, 75 Mont. 81,
241 P . 1072. Once t h a t h a s been done, t h e burden o f p r o v i n g
alteration s h i f t s t o appellant. S t a t e v. F i t z p a t r i c k , - .
Mont
,
- 516 P.2d 605, 3 0 St.Rep. 1052.
Appellant a d d i t i o n a l l y contends t h a t t h e S t a t e f a i l e d
t o u s e t h e b e s t e v i d e n c e i n p r o v i n g t h e r e s u l t s of t h e g a s chromato-
g r a p h ; t h a t t h e chromatogram r e c o r d i t s e l f s h o u l d have been i n t r o -
duced and proof made of t h e s t a n d a r d s u t i l i z e d by t h e c h e m i s t i n
i n t e r p r e t i n g t h e chromatogram. The c o n t e n t i o n h a s m e r i t , t e c h n i c a l
though it may be, b u t t h e c o m p l a i n t came f a r t o o l a t e . The c h e m i s t
who a c t u a l l y examined t h e samples t e s t i f i e d t h a t he r e a d i l y d e t e c t e d
accelerants by the use of the gas chromatogram and that there
was a marked, distinguishable difference between these accel-
erants and the other nonvolatile petroleum distillates that the
appellant contended were also in the floor. His testimony was
lengthy and technical but that is the thrust of it. Following
appellant's case in chief, the State called the second chemist
from the forensic laboratory in Washington as its final rebuttal
witness, the chemist who was in charge of the laboratory but who
did not actually do the examination of the samples. Defense
counsel realized during the cross-examination of this witness
on rebuttal that he had overlooked both the chromatogram record
and the standards, established that both were in existence, then
moved to strike all of the testimony of both chemists on the
grounds that during their testimony of the State's case in chief,
they had not used the best evidence in explaining the results of
the gas chromatograph test. The trial judge properly overruled the
objection. Neither was relevant to this particular witness's
testimony for he testified as a custodian of the laboratory and was
in no position to testify as to what the other chemists utilized
for his testimony relative to the examination of the samples.
As stated before, the objection came far too late.
For the foregoing reasons, judgment of the trial court
is affirmed.
Hon. Robert Keller, District Judge,
sitting in place of Mr. Chief Justice
James T. Harrison.
We cony/
5