Clark v. State

• Decision Date: 30 October 1990
• Docket Number: No. 02S00-8810-CR-859,02S00-8810-CR-859
• Citation: 562 N.E.2d 11
• Parties: Timothy C. CLARK, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

Page 11

562 N.E.2d 11

Timothy C. CLARK, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 02S00-8810-CR-859.

Supreme Court of Indiana.

Oct. 30, 1990.

Donald C. Swanson, Jr., Swanson & Campbell, Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., Richard C. Webster, Deputy Atty. Gen., Indianapolis, for appellee.

SHEPARD, Chief Justice.

Accused of setting an apartment fire that killed a young woman, appellant Timothy Clark was tried to a jury and convicted of arson, a class A felony, Ind.Code Sec. 35-43-1-1 (West 1986), and felony murder, Ind.Code Sec. 35-42-1-1(2) (West 1986). The judge sentenced Clark to forty years.

In this direct appeal, Clark raises three issues:

I. Whether the trial court erred in admitting into evidence items of clothing seized by arson investigators from the backseat of Clark's car.

II. Whether the trial court erred in refusing to allow the defendant's expert witness to give his opinion regarding the cause of Clark's burns.

III. Whether there was sufficient evidence to sustain the arson and felony murder convictions.

Facts

The evidence most favorable to the jury's verdict shows that a fire erupted at 12:30 on the morning of July 13, 1987, in an entryway at Wood Creek Apartments in Fort Wayne, Indiana. The fire broke out after one gallon of gasoline was splashed inside the entryway, and lit. Although many of the apartment residents were injured, all were able to escape the fire with their lives except for a 26-year-old school teacher, Cheryl Cureton. She died in her bed from smoke inhalation.

Clark had been out drinking beer at a festival with his roommate on the evening of July 12, 1987. They left the festival and drove home, then left immediately to buy some fast food. They took their food to the St. Joseph Township Fire Department, where both worked as volunteer firemen, and ate it in the parking lot of the station. Clark went inside the station to retrieve some fire equipment, then drove back home. Clark dropped his roommate off at home, then drove off alone.

An apartment resident who lived near the entryway where the fire started testified that a man similar in appearance to Clark knocked on her door shortly before the fire began. When she answered the door the man said that he had the wrong apartment. The resident then shut her door. She testified that the man appeared to be drunk. He smelled of alcohol, had red eyes and swayed as he stood in her doorway.

After the fire erupted, another resident, who knew Clark through her work as a volunteer paramedic for St. Joseph Township, heard a man pounding on doors yelling, "Fire, fire, apartment fire." Although she did not immediately identify the voice, she later realized that it belonged to Clark.

At some point, Clark caught on fire and ran from the entryway. Another resident testified that he saw a man run from the apartment building with his back on fire.

Although he had been severely burned, Clark left the scene in his car and drove to the fire station, where he donned a fireman's bunker coat, hat and boots, and boarded the last fire engine to leave the station for the fire. Because Clark's injuries could not be seen underneath all that garb, the other firemen on the engine failed to notice that he was in no condition to fight the fire. Once the engine arrived at the fire scene, however, Clark's injuries caused him to collapse on the ground screaming, "I'm on fire." Because they had just arrived at the fire, the other firemen were confused as to how Clark could have been burned so badly. He was treated on the scene by paramedics, including the female resident who recognized his voice. Clark was then taken to a local hospital, where he was treated for second and third degree burns.

As the fire came under control, some firemen were sent back to the station to begin cleaning their equipment and preparing for the next fire. One of these firemen was Scott Adam, who was in front of the station when Clark's brother and his father, Rex, arrived. Adam accompanied them to the back of the station where Clark's car was parked. Rex opened the car using keys that he had with him and removed from the floor of the backseat a shirt that was burned on the back. Adam noticed there were ashes on both the outside and the inside of the car. Adam took the shirt from Rex, inspected it, then placed it back inside the car. While his head was inside the car, Adam smelled gasoline.

Adam then notified the firefighters still on the scene at the apartment building. Fire Chief Michael Dosen sent a fire investigator and a state fire marshall to investigate Clark's car. With Rex present, they examined the shirt and the contents of the trunk. The car was then impounded and a search warrant obtained. Subsequent chemical tests on the shirt indicated the presence of gasoline residue. Gasoline residue is that part of the gasoline that is left behind on an object that has burned for a short time.

Further search did not reveal any gas can or other container near the fire. As a fireman, Clark had been exposed to training films which showed how an arsonist could use containers that would burn up in the fire without leaving much trace.

I. The Search of Clark's Car

Clark contends that his car was searched by fire investigators without a warrant, in violation of the fourth amendment. As a result, Clark argues that none of the fruit of the illegal search should have been admitted at trial. Clark sought to suppress the results of the search through a pre-trial motion in limine. After holding a suppression hearing, the trial judge denied the motion. Clark's objection at trial was overruled.

Rather than address the merits of Clark's claim, the State argues that this issue is waived because of Clark's failure to include in the record on appeal a copy of the transcript of the suppression hearing. Clark has indeed failed to include a transcript. This failure raises a procedural problem that must be addressed before this Court can turn to the merits.

Appellant bears the burden of presenting to this Court a record that is complete with respect to the issues raised on appeal. Rondon v. State (1987), Ind., 534 N.E.2d 719, cert. denied, --- U.S. ----, 110 S.Ct. 418, 107 L.Ed.2d 383 (1989). This burden includes the duty to ensure that the appellate court has before it a transcript of the trial proceedings or, where no transcript is available, an affidavit setting forward the content of the proceedings. Ind.Appellate Rule 7.2(A); Dunbar v. State (1974), 160 Ind.App. 191, 194-95 & 195 n. 3, 311 N.E.2d 447, 450-51 & 450 n. 3; see also Ruetz v. State, 268 Ind. 42, 373 N.E.2d 152, cert. denied, 439 U.S. 897, 99 S.Ct. 261, 58 L.Ed.2d 245 (1978) (substitution of affidavit in place of verbatim transcript not an unconstitutional denial of due process). Failure to do so can result in a waiver of the issue on appeal. Rondon, 534 N.E.2d at 729. Waiver is not, however, an automatic result. Indiana appellate courts may also order up the missing part of the record. A lengthy sentence and a strong likelihood of success on the merits would suggest that the remaining record should be ordered.

In this case, we see no need to order a transcript of the suppression hearing. Although the appellant was sentenced to a substantial term, he has little likelihood of success on the merits of his fourth amendment claim. Under the fourth amendment to the United States Constitution, warrantless searches by the government are per se unreasonable, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). The remedy for an illegal warrantless search is the suppression of the evidence obtained from the search. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Although the police in this case eventually obtained a search warrant, several searches of Clark's car were made before any warrant was obtained. These warrantless searches must first survive constitutional scrutiny if the evidence they revealed is to be admitted into court.

The first search of Clark's car was performed by his father, not by a government official. Even though fireman Scott Adam was present at this search, the facts clearly show that he did not initiate it. Searches performed by non-governmental actors are not controlled by the fourth amendment. Sizemore v. State (1985), Ind., 483 N.E.2d 56. The subsequent warrantless searches of the car, however, were performed by arson investigators in furtherance of their criminal investigation. Without the support of a warrant, these governmental searches can survive scrutiny only if they fall within one of the few exceptions to the warrant requirement. State v. Buxton (1958), 238 Ind. 93, 148 N.E.2d 547. Consent is one exception. Schneckloth, 412 U.S. at 219, 93 S.Ct. at 2043. Here, the evidence strongly suggests that Clark's father consented to the searches. Consent by a third party is valid if that party has a sufficient relationship to the place searched; we conclude that Clark's father did have a sufficient relationship to Clark's car. Cf. Jackson v. United States, 404 A.2d 911, 920-21 (D.C.1979) (consent obtained from husband of registered owner of car validated warrantless search of automobile; husband had a sufficient connection to the car). None of the warrantless searches appear to have violated the fourth amendment. Accordingly, the trial court properly declined to suppress the fruits of the searches.

II. Scope of Expert Testimony

Clark asserts that the trial court erred in limiting the scope of his expert witness's testimony. Clark presented to the jury the testimony of Neil Rubin, a retired New York City fire marshall. Rubin testified about the nature of arson fires started with a gasoline accelerant. He stated that in this case one gallon of gasoline was poured in the entryway and began to evaporate, filling the closed entryway with gasoline vapors. Rubin testified that the gasoline would have...