Summary
In People v Bailey, 42 Mich. App. 359 (1972), and in People v Dajnowicz, 43 Mich. App. 465 (1972), this Court considered the same issue, arriving at contrary conclusions.
Summary of this case from Kassner v. Fremont Mut Ins Co.Opinion
Docket No. 8552.
Decided August 28, 1972. Leave to appeal denied, 388 Mich. 786.
Appeal from Genesee, Elza H. Papp, J. Submitted Division 2 January 12, 1972, at Lansing. (Docket No. 8552.) Decided August 28, 1972. Leave to appeal denied, 388 Mich. 786.
James L. Bailey was convicted of arson and of wilfully burning his home with the intent to defraud his insurance company. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler, Chief Assistant Prosecuting Attorney, and Joel B. Saxe, Assistant Prosecuting Attorney, for the people.
Carl Ziemba, for defendant on appeal.
The defendant was charged in the prosecutor's two-count information with the crimes of arson, MCLA 750.72; MSA 28.267, and the wilful burning of his home with the intent to injure and defraud his insurance company, MCLA 750.75; MSA 28.270. The jury found the defendant guilty of both charges, and he was sentenced from 8-1/2 to 20 years on the first count and 5-1/2 to 10 years on the second count. Defendant appeals as of right.
Defendant contends that the prosecution never established the corpus delicti of the crimes charged.
Expert testimony at the trial revealed the following: (1) the fire was not caused by lightning because the day was clear and cold; (2) the greatest damage from the fire was in the living room; (3) on the day of the fire, the kitchen stove was functioning normally; (4) defendant's furnace was not the cause of the fire nor was the fuse box, any electrical source or outlet, the living room lamp or lamp cord, nor was any explosion the cause of the fire; (5) the dogs which died in the fire could not have caused the fire by biting on the electrical cords; (6) the lighting fixtures on the Christmas tree in defendant's living room did not cause the fire; (7) careless smoking or neglect was not the cause; (8) the northeast corner of the living room was the point of origin of the fire, and there was a considerable amount of white ash in the corner which would be the residue of the newspapers defendant generally stored there; (9) electrical equipment in that corner did not cause the fire; and (10) the living room couch and chair were not the source of the fire.
In addition, the people offered proofs to establish that defendant was in financial trouble; defendant was in the house alone some 10 to 20 minutes before the fire started; defendant had stated that if a fire occurred in his house, he would need a good alibi; defendant tried to persuade witnesses not to testify against him; defendant was aware that the home was covered against fire loss, but told officers on the scene that he didn't know whether he had insurance or not; defendant changed fuses in the fuse box after the fire as a "joke" on the investigating officer; defendant attempted to get a woman to go to Florida with him when he received the insurance proceeds; defendant almost doubled the insurance coverage not long before the fire; defendant stated that all he had left were the clothes on his back when in fact he had left clothing with a friend out of state prior to the fire; and that defendant had stated that if you want something done right, you had to do it yourself.
In People v. Porter, 269 Mich. 284, 292 (1934), the Supreme Court stated:
"The crime of arson is so peculiarly one of secrecy that often the only evidence of the unlawful character of the fire is found in the acts and admissions of a person having opportunity and motive. This is such a case. Defendant was alone in the house. Only she knew whether the fire was innocent or evil. If evil, she set it. The only means of determining the character of the fire, aside from inconclusive physical evidence, were her conduct and statements and their consistency with innocence or guilt. Both the corpus delicti and defendant's guilt rested upon the same state of facts and the evidence could not be separated to permit the proof of one without also proving the other."
It is our opinion that the evidence tending to show motive and opportunity, together with the evidence negating accidental cause, is sufficient to establish corpus delicti.
Defendant next contends that all of the evidence obtained by the investigating officer should have been suppressed because the evidence was obtained without benefit of a search warrant. Defendant relies on Camara v. San Francisco, 387 U.S. 523; 87 S Ct 1727; 18 L Ed 2d 930 (1967), and See v. Seattle, 387 U.S. 541; 87 S Ct 1737; 18 L Ed 2d 943 (1967).
In Camara, the Court held that occupied dwellings could not be inspected for ordinance violations without a warrant. The Court in See applies the Camara decision to places of business as well as dwellings.
In the instant case we are dealing with neither an occupied dwelling nor a place of business. The house and contents were destroyed by fire and were no longer suitable for any purpose. In Camara, supra, at 528, it is stated:
"The basic purpose of this [Fourth] amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials."
We see no invasion of defendant's privacy or security as a result of the investigation of the destroyed premises. There was no violation of defendant's Fourth Amendment rights as a result of the investigation.
Defendant next contends that the trial court should have granted a mistrial due to prosecutorial misconduct during closing argument. The statement complained of reads as follows:
"You can't say, `Well, how that fire started, whether or not he lit it with a match or used a wick or used an accelerant, or what he did in that corner was not proven by the people, and therefore, you can't convict him.'
"We will never know unless Gordie Johnson or someone were to tell us. We will never know unless the defendant — he testified at preliminary examination — can be shown to be guilty by his inconsistent statements and his conduct that was totally inconsistent with innocence."
It is defendant's position that the above comments constitute an impermissible reference to the fact that defendant did not testify at trial.
In People v. Alexander, 26 Mich. App. 321 (1970), a factually similar incident occurred as is complained of here. This Court stated at 324-325:
"Defendant also asserts that it was error for the prosecutor on final argument to state that no contradiction to the people's testimony has been offered by the defense, and further to state that, `[a]nd he, as we stand here, appears alone fully to know what happened, that is, the defendant Alexander.' We agree. MCLA § 600.2159 (Stat Ann 1970 Cum Supp § 27A.2159). However, where, as here, the court fully covers the point in its instruction to the jury, potential prejudice is thereby cured."
In the instant case defense counsel demanded that the court not instruct the jury on the fact that the defendant had not become a witness at trial. This left the court with no way to cure any error that might have been committed by the prosecutor.
The courts have long recognized that trial tactics of the experienced criminal attorney play a large role in the conduct of defendant's case. The courts have also recognized that where such trial tactics interfere with the defendant's rights, the defendant is held to have acquiesced in such tactics. See People v. Lawrence, 32 Mich. App. 591, 593 (1971). In the instant case since any error that might have been committed by the prosecutor could have been cured by an instruction and since defendant's counsel waived the instruction, the defendant is held to that waiver and cannot complain of the error.
Defendant also contends that the prosecutor's remarks in the closing argument constituted error in that they alleged that witness Gordie Johnson was a knowing conspirator with the defendant in burning defendant's home. Our review of the evidence reveals, however, that the prosecutor's remark was not completely unwarranted by the evidence. The remark does not, therefore, constitute reversible error. People v. Mason, 10 Mich. App. 404, 407 (1968).
Defendant next argues that the trial court erred in denying the defendant's pretrial motion to quash the second count of the information.
The second count of the information was knowingly burning insured property with intent to defraud insurer. A review of the testimony at preliminary examination discloses that sometime in January of 1969 the defendant was told by the president of his insurance company that his claim would not be considered because the fire at his home was being investigated. The letter from the defendant to the insurance company stating that the defendant had filed a proof of loss was received in evidence and read into the record. Furthermore, an insurance adjuster of the defendant's insurance company met with the defendant and gave him forms upon which to present a proof of loss. Additionally, Betty Johnson, the wife of Gordon Johnson, testified that on the night of the fire, the defendant and his wife sat in two separate rooms at her home filling out proof of loss forms for the fire at their home. The trial court considered all this evidence and concluded that there was sufficient evidence going to a violation of MCLA 750.75; MSA 28.270. A review of the evidence presented would justify the trial court's conclusion that a valid claim and proof of loss had been presented to the defendant's insurance company. As such, it would appear that the defendant's issue on this point is not meritorious.
Defendant next contends that the trial court erred in denying the defendant's pretrial motion to strike all aliases from the information.
The original information filed against the defendant read as James Larriemore Bailey a/k/a James L. Bailey a/k/a James Larriemore a/k/a Jack Albert a/k/a Jay Baldwin a/k/a Jim Crane a/k/a Jonathan L. Bailey. The trial court, after a full hearing on the motion to strike the aliases, found that the defendant had used certain aliases in the past and agreed to leave those aliases on the information and strike all others.
In our opinion the trial court's action was proper. It was established at trial that defendant had purchased the home under an alias. All of the names not used by defendant were struck from the information. We find no prejudice.
Defendant finally claims that the trial court erred by admitting into evidence testimony claimed to be prejudicial. Defendant here points to five separate instances where testimony was introduced solely to prejudice the defendant in the eyes of the jury. Defendant has not shown how he was prejudiced not has he cited any authority to support his position. We will only say, therefore, that we have reviewed all of the testimony in question and find this issue to be without merit.
Affirmed.
All concurred.