Com. v. Jacobson
| Citation | 477 N.E.2d 158,19 Mass.App.Ct. 666 |
| Parties | COMMONWEALTH v. Barry J. JACOBSON (and a companion case 1 ). |
| Decision Date | 30 May 1985 |
| Court | Appeals Court of Massachusetts |
James D. St. Clair, Boston (Lee Johnson, East Cambridge, with him), for Barry J. Jacobson.
Charles R. Bennett, Jr., Boston (Brian P. Burke, Boston, with him), for Patrick Clarke.
Daniel A. Ford, Asst. Dist. Atty., for the Commonwealth.
Before GREANEY, C.J., and GRANT and DREBEN, JJ.
Following a lengthy jury trial in the Superior Court, the defendants, Barry J. Jacobson and Patrick Clarke, were convicted of burning a dwelling house (G.L. c. 266, § 1) and sentenced. 2 Represented by new counsel on appeal, the defendants argue that their respective motions for required findings of not guilty, Mass.R.Crim.P. 25(a), 378 Mass. 896 (1979), should have been allowed. We first take up the rule 25 motions filed at the conclusion of the Commonwealth's case, concluding that Jacobson's motion was properly denied but that Clarke's motion should have been allowed. We thereafter consider Jacobson's remaining contentions, concluding that the judgment of conviction and the order denying his motion for new trial should be affirmed. 3
The evidence in the Commonwealth's case disclosed the following:
(a) On Thursday, January 28, 1982, at 6:18 A.M. and again at 6:20 A.M., a fire alarm was received by a security company from Jacobson's vacation house on Wood Lot Road in Richmond. The company's answering service attempted to reach Jacobson at his house in White Plains, New York, but the telephone number there was continuously busy. The answering service finally reached the caretaker for the property. While driving to the house at approximately 6:29 A.M., the caretaker saw Jacobson's automobile stuck in a snowbank. Jacobson flagged the caretaker down and explained that he had seen a hole in his garage door which made him think that someone was burglarizing the house. Clarke was in the automobile with Jacobson. Both men were dressed in business suits. When the caretaker asked what the defendants were doing in Richmond that early in the day, Jacobson said that they had driven from New York to obtain Jacobson's four-wheel drive jeep which Clarke wanted to borrow for the weekend.
(b) The caretaker informed Jacobson that the fire alarm had gone off at the house. Jacobson and the caretaker immediately left in the caretaker's automobile to go to the house. 4 When Jacobson and the caretaker arrived at the scene, they saw flames rushing over the top of the back part of the house. Volunteer firefighters had begun to arrive to fight the fire. The jeep was still in the garage. Eventually, the firefighters forced open the garage door and pushed the jeep out. The keys were not in the vehicle's ignition and the steering column was locked, making it difficult to push. The jeep had been warmed to room temperature and was covered with oily black soot. It had not caught fire.
(c) When the fire was under control, the caretaker took Jacobson and Clarke to his house to warm up. (January 28, 1982, was one of the coldest days of the winter in Berkshire County.) Jacobson tried to place a telephone call to his wife, but was unable to because the line was still busy. He also called his office to advise that he would not be coming to work. Jacobson's hands were freezing cold, grayish-white, and he had a blood blister on one finger. After the defendants warmed up, the caretaker, Jacobson, and Clarke returned to the scene of the fire.
(d) Trooper William Roche of the Massachusetts State Police arrived at the scene about 8:19 A.M. Jacobson gave Roche his name and address, but gave his business rather than his home telephone number. After some general questioning, Roche asked Jacobson to stay at the scene for a minimum of two hours so that someone from the Massachusetts State Police Crime Prevention and Control (CPAC) Unit could speak with him about the fire. Jacobson agreed to do so. Roche then went into West Stockbridge to call the CPAC Unit. When he returned about twenty-five minutes later, Jacobson had left and returned to New York. 5
(e) Troopers Robert G. Scott and Richard M. Smith of the CPAC Unit arrived at the scene of the fire around 10:00 A.M. After investigation, the two troopers concluded that the origin of the fire had been in a first floor back bedroom closet, that the fire had been started by the application of an open flame to some kind of liquid fuel left or placed on the floor, and that arson had been committed. 6
(f) After returning to New York about 11:30 A.M., Jacobson went to a hospital in White Plains for treatment of his hands. In the emergency room, he told admitting personnel that he had received a telephone call in White Plains that morning informing him that his summer house in Richmond was on fire. Jacobson stated that he had immediately driven to Richmond and that he had been throwing snow on the garage during the fire to protect his jeep. He did not know whether his hands were frostbitten from scooping up snow or burned from pushing the jeep out of the garage. 7
(g) There was evidence that Jacobson, in the summer of 1981, had spoken to the Richmond fire chief and inquired about the number of fire trucks then owned by the town's volunteer fire department. When told that the department had only one, Jacobson asked what would happen if a fire occurred at his house. The chief told Jacobson that he would probably lose the house because of the distance between the firehouse and the house and the fact that the one tanker could carry only 2,000 gallons of water. Jacobson told the chief that if he saw a used tanker in New York "for the right price," he would buy it for the town. However, he never did.
(h) At 11:30 P.M., on the night of the fire, Trooper Scott questioned Clarke by telephone at his home in New York. Clarke stated that he and Jacobson had started to drive to Richmond at about 4:00 A.M. that day because Clarke wanted to borrow Jacobson's jeep. Clarke stated that he had slept during the trip and had not seen anything when the two men reached the house at about 6:00 A.M. Clarke indicated that Jacobson had tried to open the garage door with an automatic door opener but that the door had stuck. The two men were on their way down to the caretaker's house to obtain a key for the house when Jacobson's automobile went off the road. Clarke explained that the hole in the garage door must have been made by Jacobson's trying to force the door open. He claimed that Jacobson had not told him that someone might have tried to burglarize the house, but that Jacobson might have thought so because of the hole in the garage door. Clarke denied seeing or smelling any smoke while he was at the house.
(i) When the firefighters arrived at the house, all the doors were locked. No footprints were found in the newly fallen snow leading into the nearby woods. The jury could have inferred that the defendants were the only ones who had access to the house at the time the fire broke out.
(j) The fire alarm, which, as previously noted, see (a) above, had sounded at 6:18 and again at 6:20 A.M., would have gone off twice only if someone had pushed the reset button. Jacobson was familiar with the alarm system and knew how to use the reset button. There was testimony that the caretaker had notified Jacobson that he had turned off the burglar alarm because of a malfunction. The jury could have inferred that Jacobson thought that the fire alarm had also been turned off and that he could set the fire without detection. They could also have inferred that, when Jacobson was surprised by the alarm, he tried to turn it off, but instead had inadvertently reactivated the alarm.
(k) As also noted, see (a) above, when the security company's answering service had tried to reach Jacobson at his home in White Plains, the telephone was continuously busy, and the telephone was still busy when Jacobson tried to call his wife. The jury could have inferred that Jacobson had taken the telephone off the hook before he left White Plains that morning so that when the answering service tried to reach him they would not know that he was not at home. 8
(l) There was evidence that Jacobson had a motive for burning the house. The property had caused him considerable annoyance and expense since he had acquired it in 1977 for $55,000. Jacobson had spent between $150,000 and $225,000 for improvements to the house when its well ran dry in the fall of 1980. The house was thereafter without water from November, 1980, to July, 1981. A court judgment required Jacobson to pay a welldigger, who had been unsuccessful in securing water for the house, $12,000 for his services. He also had to pay a second welldigger over $13,000 in order to obtain water, and he had to spend more than $25,000 to redo the landscaping which had been damaged by the drilling. In November, 1981, the home had been burglarized and approximately $22,000 worth of items had been stolen. As of the date of the fire, Jacobson's theft insurance claim had not been paid. In addition, the burglar alarm system was malfunctioning and had to be turned off, and the alarm service contract had been cancelled because Jacobson had refused to pay his bill.
(m) Finally, the jury could have also found that the property had an appraised replacement value of $212,000 and that Jacobson had increased the insurance to $400,000 in October, 1981, a few months before the fire. The jury could also have found that based on evidence of his late payment of 1982 real estate taxes Jacobson had been experiencing at least a temporary cash flow problem.
1. Denial of Jacobson's motion for a required finding of not guilty. We conclude, after considering the Commonwealth's evidence in light of the standard governing a motion for required finding of not guilty, see Commonwealth...
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