Opinion
21-P-1035
10-28-2022
COMMONWEALTH v. DANIEL KIM.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The defendant, Daniel Kim, appeals from his convictions of arson of a dwelling house, and two counts of throwing, secreting, launching, or placing of a destructive or incendiary device. See G. L. c. 266, § 1; G. L. c. 266, § 102A. The defendant contends that (1) the evidence was insufficient to prove intent to commit arson or placement of incendiary devices; (2) his motion to suppress evidence should have been allowed; and (3) certain expert testimony was inadmissible. We affirm.
Discussion.
1. Sufficiency.
As is pertinent here, the Commonwealth was required to prove that the defendant "willfully and maliciously set[] fire to, burn[ed] or cause[d] to be burned . . . a dwelling house." Commonwealth v. Pfeiffer, 482 Mass. 110, 116 (2019), quoting G. L. c. 266, § 1. Willful "means intentional and by design in contrast to that which is thoughtless or accidental" (quotation omitted). Pfeiffer, supra. That is, arson is a general intent crime. See id. at 119.
To secure convictions for throwing, secreting, launching, or placing a destructive or incendiary device under G. L. c. 266, § 102A, the Commonwealth was required to prove that (1) the defendant secreted, threw, launched, or otherwise placed an item; (2) the item was a destructive or incendiary device or substance; (3) the defendant placed this item with the intent to cause fear, panic, or apprehension in any person, or to ignite, explode, or discharge such destructive or incendiary device or substance; and (4) the defendant did so without lawful authority. See Scione v. Commonwealth, 481 Mass. 225, 233 (2019).
Both the Commonwealth and the defendant have assumed (without citation or legal argument) that G. L. c. 266, § 102A, requires proof of specific intent. We have not found any case which states whether offenses arising under § 102A are specific or general intent crimes. At oral argument the defendant relied on his arguments regarding accidental ignition (as opposed to deliberate or intentional conduct) with respect to both sets of offenses.
The defendant asserts that there was insufficient evidence of his intent to commit arson or his intent to place incendiary devices in the building with the intent to cause fear or panic, or to ignite. We view the evidence "in the light most favorable to the Commonwealth to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt" (quotation and citation omitted). Commonwealth v. Jones, 59 Mass.App.Ct. 157, 160 (2003).
At the time of the fire, the defendant had been living on the second floor of 1182 Walnut Street, Newton, a mixed residential and commercial building owned by his father. The defendant also ran a coffee shop, Broken Grounds Cafe, on the first floor of the building, the floor where his parents lived at the time. The defendant leased the first floor for two years. In August 2017, when the defendant's commercial lease was nearing termination, the defendant's father asked that the defendant vacate both the apartment and the coffee shop. The eviction caused tension between the father and his son.
On August 27, 2017, the father noticed that the defendant had changed the locks on the coffee shop and the entrance to the basement, and asked the defendant to change them back. The defendant did not do so. The father did not have access to the business or the basement after August 27, 2017.
The fire began the next day, on August 28, 2017. The defendant's sister saw the defendant in the parking lot of the building around 8 or 9 A.M. Around 12 P.M., firefighters and police officers were dispatched to 1182 Walnut Street in response to a report of a fire in the basement and the possibility of a trapped victim. Upon arrival, the responding firefighters and police officers found that the front and back doors to the building were locked. The firefighters broke in through the back door and descended the basement stairs. The source of the fire was a plastic nonelectric coffee pot underneath the stairs. The coffee pot was attached to a high voltage lightbulb by a spliced copper cord; the protective casing of the cord was stripped, and it had melted into the coffee pot. The firefighters put out the fire, but the fire reignited. The building was occupied by several adults, including family members, and children. One woman was evacuated in her wheelchair.
The firefighters found a second device on the other side of the basement, similar to the first, consisting of a cord plugged into a timer which was connected to a high voltage lightbulb. Both devices were set up close to paper cups, plastic bags, and other combustible items. The firefighters eventually found the defendant on the floor behind two large, interlocked metal refrigerator doors.
Bottles labeled "Krystal Kleer" wiper fluid were also found in the basement. The fluid in the bottles, which is usually blue in color, was clear. Chemical testing revealed that Krystal Kleer windshield wiper fluid does not burn when ignited. However, the clear fluid that was found in the Krystal Kleer bottles in the basement did burn and was determined to be a mixture of methanol and ethanol, a combustible mixture. The jury were shown video footage of the defendant purchasing Krystal Kleer bottles and denatured alcohol seventeen days before the fire.
Considering the facts in the light most favorable to the Commonwealth, there was overwhelming evidence to prove the general intent to commit arson, as well as malice. See Pfeiffer, 482 Mass. at 121. The judge, however, gave a specific intent instruction as to both offenses, and we therefore consider whether the evidence was sufficient as to both arson and the placement of incendiary devices under the rubric of specific intent. See id.
The arson instruction referred to "the resulting harm." See Pfeiffer, 482 Mass. at 116 n.11.
The jury heard that the defendant's father owned the property where the fire occurred. A month before the fire, the defendant and his father had a falling out after the father evicted the defendant from the building. About two weeks before the fire, the defendant purchased bottles of Krystal Kleer windshield wiper fluid and denatured alcohol. One day before the fire, the defendant changed the locks to the building doors, knowing that people lived in the building. The doors were still locked when firefighters and police officers arrived on scene.
The defendant, who was seen outside the building on the morning of the fire, was inside the basement at the time of the fire. He was the only individual with access to the basement at the time of the fire. The firefighters who responded to the fire found bottles labeled Krystal Kleer, along with cups and paper, near lightbulbs and wiring rigged to omit high intensity heat. The bottles labeled Krystal Kleer contained flammable fluids. From this evidence the jury could permissibly find that the defendant started the fire "intentionally and by design," intending the harm that ensued, Pfeiffer, 482 Mass. at 116 & n.11, and that the defendant hot wired a light bulb near combustible materials with the specific intent to cause fear or panic in a residential building, or to ignite or explode materials in the basement. The evidence was sufficient.
2. Motion to suppress.
Law enforcement officers searched the defendant's van pursuant to a search warrant. The warrant authorized a search for specific items, as well as receipts reflecting the purchase of those items. The detective conducting the search found six white unsealed envelopes within the van. He opened the envelopes to see if they contained receipts, and read the documents inside; some of the documents were letters written by the defendant addressed to three individuals. The letters expressed the defendant's anger toward his father and gifted various personal belongings of the defendant to the individuals to whom the letters were addressed. The defendant moved to suppress the letters.
The search warrant application sought the following items: "light timers, extension cords, high-wattage light bulbs, fire extinguishers, metal can of paint thinner, plastic red gas can, electrical cords, receipts and packaiging [sic] for these items."
"In reviewing motions to suppress, we give substantial deference to the judge's ultimate findings and conclusions of law, but independently review the correctness of the judge's application of constitutional principles to the facts found" (quotations omitted). Commonwealth v. Balicki, 436 Mass. 1, 7 (2002). Both the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights require that warrants describe the areas to be searched and the items to be seized with particularity. See id. "When a search or seizure is conducted outside of the scope of a warrant, the burden is on the Commonwealth to demonstrate that the activity falls within an exception to the warrant requirement." Id. at 8.
The defendant asserts that the letters fell outside of the scope of the search warrant and should not have been seized. The Commonwealth contends that the letters fell under the plain view exception to the warrant requirement. Under the plain view doctrine, police may seize an object without a warrant when they are in a lawful position to view the object, the incriminating character is apparent, they have a lawful right of access to the object, and the discovery was inadvertent, i.e., nonpretextual. See Commonwealth v. Sliech-Brodeur, 457 Mass. 300, 306-308 (2010) (officers executing valid search warrant in defendant's home permitted to read and seize letter left on kitchen counter in plain view).
In Commonwealth v. D'Amour, 428 Mass. 725, 728 (1999), the officer, pursuant to a warrant, searched the home that a murder victim shared with the defendant, his wife. The warrant permitted the officer to seize "among other things, 'firearms and ammunition,' 'writings relating to the ownership of firearms,' and 'writings containing the names of persons known to the deceased such as address books, diaries and appointment books and calendars.'" Id. While executing the warrant, the officer discovered ammunition and a letter written by the defendant that was relevant to motive. See id. "Once the officer came across the letter, he was permitted to examine it 'cursorily' to determine whether it was a writing relating to the [subject of the search warrant]." Id. at 731.
This case is indistinguishable from D'Amour. Here, the officer was acting under a warrant and the discovery was inadvertently made during a search for items covered by the warrant; he was then permitted to perform a cursory examination to determine whether the items could be seized pursuant to the warrant. The defendant claims that the letters were addressed to third parties, and that the officer had no reason to think the letters were receipts, or to read them in full. This argument has, however, been rejected. See Sliech-Brodeur, 457 Mass. at 308 ("it would be unrealistic to require officers to ignore what is immediately in front of them").
3. Expert testimony.
Finally, the defendant contends that the judge should have excluded the testimony of Trooper Michael Sweet, who testified that the incendiary devices found in the basement were placed intentionally.
"A trial judge has wide discretion to qualify an expert witness and to decide whether the witness's testimony should be admitted. The admission of expert testimony will be reversed only where it constitutes an abuse of discretion or other error of law" (quotations and citations omitted). Commonwealth v. Scesny, 472 Mass. 185, 194-195 (2015). A witness may not give an opinion on the ultimate issue of a case. See Commonwealth v. Canty, 466 Mass. 535, 540 (2013); Commonwealth v. Lugo, 63 Mass.App.Ct. 204, 207-208 (2005). Here, when asked about his opinion as to the cause of the fire, the trooper testified that "the cause of that fire underneath the staircase . . . was incendiary or intentionally set. It was arson." The judge properly struck the trooper's reference to arson sua sponte, as the reference to arson touched on the ultimate issue in the case. Whether a fire has been set intentionally or erupted accidentally is a factual question that falls outside of the scope of knowledge of an ordinary juror, and is therefore a proper subject of expert testimony. See Lugo, supra at 208 ("Whether or not a fire is incendiary in origin is not generally a matter within the scope of common knowledge of an ordinary juror" [citation omitted]); Commonwealth v. Harris, 1 Mass.App.Ct. 265, 268 (1973) ("The opinion of a properly qualified person concerning the cause of a fire is generally admissible in evidence"). Furthermore, the judge instructed the jury that "it is completely up to you to decide whether you accept the testimony of an expert witness, including the expert's opinion . . . . [I]f you conclude that an expert opinion is not based on the facts as you find the facts to be, then you may reject the testimony and opinion of the expert in whole or in part." There was no error.
Judgments affirmed.
Sullivan, Neyman &Brennan, JJ.
The panelists are listed in order of seniority.