STATE v BURTCHETT
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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: Decided : Filed :$w13 1974 June 12, 1974 SEP 1 3 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 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. Mr. 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 . F i r e Marshalts The S t a t e 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 question but that a delay in time between the commission of an offense and the commencement of the prosecution, by the filing of an information process. termed "preindictment delay" can be the denial of due 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, appellant 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, tobacco 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 accelerants 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 laboratory 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 into the can, withdrew the vapors then existent, and used the gas chromatograph upon the vapors. present in both cans. They found gasoline or naptha 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 petroleum distillate. In addition, they testified that the sooty resi- due from the kerosene burn and the asphalt used to set the linoleum 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. 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. , - 516 S t a t e v . Wong Fong, 75 Mont. 81, P.2d 605, 3 0 St.Rep. S t a t e v. F i t z p a t r i c k , - . Mont 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 chromatog 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 accelerants 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
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