Com. v. Harris

• Decision Date: 30 April 1973
• Citation: 295 N.E.2d 687,1 Mass.App.Ct. 265
• Parties: COMMONWEALTH v. Harry HARRIS.
• Court: Appeals Court of Massachusetts

Page 687

295 N.E.2d 687

1 Mass.App.Ct. 265

COMMONWEALTH v. Harry HARRIS.

Appeals Court of Massachusetts, Suffolk.

Argued Feb. 20, 1973.

Decided April 30, 1973.

Robert V. Greco, Boston (Robert F. Fandel, Boston, with him), for defendant.

John M. Lynch, Sp. Asst. Dist. Atty. (Robert F. McKenna, Jr., Legal Asst. to the Dist. Atty., with him), for the Commonwealth.

Before GRANT, KEVILLE and ARMSTRONG, JJ.

ARMSTRONG, Justice.

This is an appeal under the provisions of G.L. c. 278, §§ 33A--33G, from convictions on two indictments charging (1) arson of the Congregation Agudath Israel Synagogue in Boston on the morning of May 27, 1970, and (2) breaking and entering the synagogue in the nighttime with intent to commit arson.

The defendant has presented and argued two of his assignments of error. Those assignments not argued are waived. Commonwealth v. Wilson, 357 Mass. 49, 51, 255 N.E.2d 744.

1. Over the defendant's objections, the trial judge allowed the Commonwealth to elicit an opinion by one Heggarty, a lieutenant assigned to the arson investigating squad of the Boston fire department, to the effect that there were two independent fires in the snyagogue, and that they were incendiary in nature. The defendant argues that this testimony was inadmissible because it was based on hearsay; that it was not a proper subject for expert testimony; and that it was not really an opinion at all, but only conjecture.

Heggarty, whose qualifications as an expert art not at issue, testified that he arrived at the synagogue an hour and a quarter after the fire was originally reported, and after the active fire had been brought under control. He made a personal examination of the entire premises lasting three hours, and found positive evidence to indicate that there had been two separate and distinct fires. He was unable to find evidence of accelerants (e.g., gasoline, naphtha, benzine), trailers (lengths of cloth to take a fire from one place to another), or piled rags, newspapers or other debris of a combustible nature. He was also unable to find evidence of a spontaneous or accidental origin for either fire. The basis for his opinion that the fire was set was that there were two simultaneous fires neither of which could be satisfactorily explained otherwise, and 'they didn't start by themselves.' Heggarty testified that he had discussions with District Chief Comfrey, the senior fire department officer at the scene, and with other fire fighters there. While Heggarty's official report categorized the fire as one of undetermined origin, this conclusion is not inconsistent with his opinion that the fire was set.

The problem with an expert opinion based upon the hearsay of others is that '(s)uch an opinion would or might well be founded upon facts, the truth of which could not in the nature of things be established to the satisfaction of the jury because no competent evidence respecting them would be before the jury.' Commonwealth v. Russ, 232 Mass. 58, 74, 122 N.E. 176, 182; Commonwealth v. Harrison, 342 Mass. 279, 287--288, 173 N.E.2d 87. The problem does not exist in this case.

The hearsay contention is based on Heggarty's testimony that he discussed his investigation and his conclusions with other investigators and firefighters at the scene of the fire and later, particularly with Chief Comfrey, the preceding witness for the Commonwealth. At one point in his testimony Heggarty was led into making some general statements to the effect that his opinion was partly based on his discussions with Chief Comfrey. The record indicates, however, that Heggarty himself observed the facts underlying his conclusions that there were two separate fires and that they were set. Exposure to hearsay, almost inevitable during an investigation, does not necessarily imply reliance thereon. Clifton v. Mangum, 366 F.2d 250 (10th Cir.). See also Sears, Roebuck & Co. v. Penn Central Co., 420 F.2d 560, 563 (1st Cir.). It is clear from the record that Heggarty's opinion was based primarily, if not exclusively, on facts he himself observed and testified to. This case, therefore, is very different from Commonwealth v. Rucker, 358 Mass. 298, 264 N.E.2d 656. Boyd, the arson investigator in the Rucker case, based his opinion as to the cause of the fire on facts not personally observed by him and not introduced in evidence, but learned from a conversation he had with the senior officer at the scene, Chief Connolly. Boyd admitted that his opinion was largely based on facts so learned. Connolly himself was not called as a witness, and in those circumstances Connolly's testimony was a necessary foundation to Boyd's opinion. In the present case, Heggarty supplied his own foundation. His opinion was not inadmissible as based upon hearsay.

The defendant next contends that the question whether or not the fire was incendiary was not a proper subject for expert testimony, but on the contrary is a subject within the experience of the ordinary juror. 'Where jurymen would have no difficulty in forming an opinion for themselves the testimony of an expert witness has no place. . . . On the other hand if a situation is presented on the evidence of such character or complexity that it cannot be assumed to be within the ordinary experience or knowledge of men the testimony of a qualified expert is admissible for such help as it may, if believed, give to the jury.' Jackson v. Anthony, 282 Mass. 540, 544, 185 N.E. 389, 390. 'There is no prescribed formality for the admission of expert testimony. All that is necessary is that the subject matter be one about which special knowledge beyond that possessed by the ordinary juryman will aid the jury in their deliberations, and that a person possessing such knowledge give opinions pertinent to the issues of the case founded upon facts which either are conceded or could warrantably be found upon other evidence.' Lovasco v. Parkhurst Marine Ry., 322 Mass. 64, 67, 75 N.E.2d 924, 925; Commonwealth v. Markarewicz, 333 Mass. 575, 591--592, 132 N.E.2d 294; Commonwealth v. Boyle, 346 Mass. 1, 4, 189 N.E.2d 844.

The opinion of a properly qualified person concerning the cause of a fire is generally admissible in evidence. Edward Rose Co. v. Globe & Rutgers Fire Insurance Co., 262 Mass. 469, 472, 160 N.E. 306; Gechijian v. Richmond Insurance Co., 305 Mass. 132, 142, 125 N.E.2d 191; Commonwealth v. Reynolds, 338 Mass. 130, 134, 154 N.E.2d 130; Sheldon Forwarding Co. v. Boston & Maine R.R., 339 Mass. 679, 683--684, 162 N.E.2d 288; Kenney v. Sears, Roebuck & Co., 355 Mass. 604, 606--608, 246 N.E.2d 649; McLaughlin v. Bernstein, 356 Mass. 219, 222--224, 249 N.E.2d 17; M. C. Carlisle & Co. Inc. v. Cross, 386 F.2d 672, 676 (1st Cir.).

The defendant, however, relies on two older cases in which expert testimony concerning fire was excluded. In the first, Higgins v. Dewey, 107 Mass. 494, the trial judge excluded an opinion by one Wells that it was not probable that a brush fire set by the defendant on a windy day would cause live cinders to blow onto the plaintiff's property the boundary of which lay six feet downwind. The exclusion was sustained, not only because the opinion was immaterial, since the defendant was liable for damages caused by the spread of the fire whether it was probable or not, but also because it related 'to a subject within the common knowledge of the jury.' That case does not control the one before us. The causes of fires in buildings are less familiar to today's urbanized population than were the habits and dangers of brushfires to an agrarian population more than one hundred years ago.

Of more concern is Commonwealth v. Rodziewicz, 213 Mass. 68, 99 N.E. 574, in which a member of the state police who had had large experience in investigating fires was permitted to testify 'as to the kind of fire which would produce' separate charred areas at six different locations along the floor, mop-board, and partitions. He testified that 'something of a very intense nature must have been on these particular places to have set there and burned through this floor.' Reversing the defendant's conviction for arson, Loring, J. stated: 'Doubtless there are cases where the effect of some kinds of fire upon some kinds of material substances is not a matter of ordinary experience or knowledge such as men in general understand and compehend. But the kind of or fires which char ordinary mopboards, sheathing and partitions and burn holes through an ordinary wooden floor without any charring or burning between is not one of them.' 213 Mass. at 69--70, 99 N.E. at 574--575. The question and answer held improper in the Rodziewicz case differed from the customary inquiry as to the cause of a fire, which in its nature calls for the consideration of many factors in combination, and often involves a complex of judgments outside the scope of ordinary experience. On its face the Rodziewicz case holds only that a jury does not require and should not receive the opinion of an expert to assist it in drawing the conclusion that char marks in boards must have been caused by something hot. ¹ Examination of the original papers shows the Rodziewicz also argued that it was error to permit the same witness to state his opinion that there were six separate fires. Although the case might have been retried, the court did not suggest that this opinion was improperly admitted, perhaps because no matter how simple a conclusion it seems superficially, the possibilities implicitly excluded might be complex.

Commonwealth v. Rodziewicz has been cited and argued by litigants, in such cases as Gechijian v. Richmond Insurance Co., 305 Mass. 132, 25 N.E.2d 191 and Commonwealth v. Reynolds, 338 Mass. 130, 154 N.E.2d 130, in an attempt to exclude expert opinion as to the cause of fire. It has not been given...