Com. v. Glenn

• Decision Date: 27 January 1987
• Citation: 503 N.E.2d 39,23 Mass.App.Ct. 440
• Parties: COMMONWEALTH v. Bobby GLENN.
• Court: Appeals Court of Massachusetts

Page 39

503 N.E.2d 39

23 Mass.App.Ct. 440

COMMONWEALTH v. Bobby GLENN.

Appeals Court of Massachusetts,

Barnstable.

Argued Dec. 16, 1986.

Decided Jan. 27, 1987.

Thomas C. Federico, Boston, Committee for Public Counsel Services, for defendant.

Don L. Carpenter, Asst. Dist. Atty., Barnstable, for the Com.

Before WARNER, CUTTER and FINE, JJ.

FINE, Justice.

The Commonwealth concedes that there was error in the jury instructions on the intent necessary for the crime of arson (G.L. c. 266, § 1) of which the defendant, Bobby Glenn, was convicted. His attorney did not object to the instructions. We conclude that the error was sufficiently serious in the context of the whole trial that the instructions created a substantial risk of a miscarriage of justice. See Commonwealth v. Freeman, 352 Mass. 556, 563-564, 227 N.E.2d 3 (1967); Commonwealth v. Miranda, 22 Mass.App.Ct. 10, 16, 21-22, 490 N.E.2d 1195 (1986).

The evidence.

On the morning of October 19, 1983, a fire occurred in Glenn's apartment, one of four in a two-story house. The previous night had been a tumultuous one. Glenn had been drinking to the point of intoxication. Sometime after 9 P.M., he fought with his wife, and she left the apartment with the couple's two children. Around 10:30 P.M., he visited Reginald Carter, a neighbor in the building. The defendant spoke to Carter for about a half hour, mentioning, among other things, that he hoped to collect insurance for an injury and that a relative had collected insurance money for a fire in his home. After the defendant left and Carter had gone to sleep, Carter was awakened by the sound of breaking glass and yelling from the defendant's apartment; the noise continued for almost two hours. Around 12:30 A.M., a police officer, responding to a call from the apartment house, spoke to the defendant, and observed him to be drunk, despondent, and belligerent. The officer left without taking any further action.

Beginning around 1:30 A.M., the defendant called an upstairs neighbor several times. According to her testimony, the defendant was "rambling" and repeated a couple of times that he did not want to die after living such a short time. In his third call, around 2:30 A.M., the defendant asked if the neighbor smelled smoke; he thought there might be an electrical fire. When she said she did not, the defendant said: "Do you have any enemies? I have enemies. This place could be torched." When the defendant called again, the neighbor's boyfriend, one David Walinski, responded. Because the defendant insisted that he smelled smoke and was worried about an electrical fire, Walinski went downstairs. There was some smoke, apparently coming from a charred tablecloth in the kitchen. After inspecting the apartment and finding no other smoke or fire, Walinski returned upstairs. He noted that the defendant was drunk and was bumping into things. The defendant called again, insisting there was a fire. At Walinski's suggestion, the defendant roused the landlord at approximately 3:45 A.M. The landlord and Walinski checked the apartment and the basement without finding any sign of fire. The defendant asked Walinski for some cigarettes, which Walinski gave him. Apparently annoyed that he was not taken seriously, the defendant said, "Watch. In four hours this place will be in flames." A short time later, the defendant spoke to the landlord again about smoke; the landlord inspected the apartment and basement a second time, found nothing, and left. He noted that the apartment was in disarray.

At 4:35 A.M. another upstairs neighbor smelled smoke, alerted her roommates and the downstairs neighbor, and evacuated. The children's bedroom in the defendant's apartment was on fire. The neighbor who had spoken to the defendant approximately six hours before testified that the defendant was even more intoxicated than he had been earlier; when he was told the house was on fire, the defendant responded, "Yes, I hope it burns down." The defendant was arrested at the scene and charged with arson.

At trial, the Commonwealth took the position that the evidence demonstrated that the defendant had intentionally set the fire. The defense, suggesting that the fire started as a result of the defendant's careless disposal of a cigarette, maintained that the fire was set accidentally or negligently. The Commonwealth's expert witness testified that there was no evidence of an accidental fire. Although he could not say how the fire was ignited, by excluding natural or accidental causes he reached the conclusion that the fire had been deliberately set. He specifically excluded the careless disposal of a cigarette as the cause. In his opinion, the type of smoldering fire caused by a cigarette could not have caused such extensive damage in the room in less than an hour. He agreed, however, that if the fire had been properly "insulated" and if there had been a strong enough oxygen source, a cigarette discarded on combustible materials could have resulted in this fire. The defendant's expert witness, on the other hand, concluded that a smoldering cigarette could have started the fire. The evidence concerning the conditions in the children's bedroom was conflicting, with testimony as to varying amounts of clothing, paper, and other debris on the floor and in a crate and evidence both ways as to whether the window in that room was open.

The instruction.

The trial judge correctly instructed the jury that in order to convict the defendant of arson under G.L. c. 266, § 1, the Commonwealth was required to prove beyond a reasonable doubt that the defendant wilfully and maliciously set fire to, burned, or caused a dwelling house to be burned. Several times the judge stressed that arson required wilfulness and maliciousness and that a showing of negligence was insufficient. But then, in his final recapitulation, he instructed that: "A person may be found, however, to possess criminal intent for arson if he or she negligently or accidentally causes a fire and then makes no attempt to report it. The necessary criminal state of mind for arson may be in some case...