Hall v. State, F-76-852

• Decision Date: 31 August 1977
• Docket Number: No. F-76-852,F-76-852
• Citation: 570 P.2d 955
• Parties: Annie Lee HALL and Michael Douglas McNeil, Appellants, v. The STATE of Oklahoma, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 955

570 P.2d 955

Annie Lee HALL and Michael Douglas McNeil, Appellants, v. The STATE of Oklahoma, Appellee.

No. F-76-852.

Court of Criminal Appeals of Oklahoma.

Aug. 31, 1977.

Rehearing Denied Nov. 15, 1977.

An appeal from the District Court, Tulsa County, Oklahoma; William W. Means, Judge.

Richard A. Hoffman, Asst. Public Defender, Tulsa, for appellants.

Larry Derryberry, Atty. Gen., Michael P. Kane, Asst. Atty. Gen., for appellee.

OPINION

PER CURIAM:

The appellants, Michael Douglas McNeil and Annie Lee Hall, hereinafter referred to as defendants, were jointly charged, tried before a jury and convicted in the District Court, Tulsa County, Case No. CRF-76-266, for the offense of Arson in the First Degree. Punishment was assessed at a term of two years under the direction and control of the Department of Corrections of the State of Oklahoma for the defendant Annie Lee Hall and a term of five (5) years to ten (10) years for the defendant Michael Douglas McNeil. From the judgments and sentences in accordance with the jury verdicts the defendants have perfected their consolidated appeal.

Briefly stated, the evidence adduced at trial is as follows: Mrs. Joyce Hannah testified that she was the owner of a home located on South 118th E. Avenue in Tulsa and that she and her husband rented the residence to the defendant Michael McNeil and his wife. Mr. Jack Clear an insurance agent with M.F.A. Insurance Company then testified that in July of 1975 he had a meeting with the defendants and Mrs. McNeil and sold them a "basic renter's policy" on the contents of their rented home and that the policy amount of $20,000.00 was suggested to him by defendant McNeil.

Mrs. Carol Young then testified that she lived across the street from the defendants' home and that on January 13, 1976, she returned to her residence at approximately 1:10 p.m. At that time she saw the defendants leaving their home in an automobile. All parties waved to each other. Mrs. Young stated she was able to fix the time due to the fact that she observed the clock when she entered her house. She further testified that after approximately three minutes she heard her dog bark, looked outside and saw that the house across the street was on fire. She then called the fire department.

J. L. Foot, Fire Chief in charge of Communication and Planning for the Tulsa Fire Department then testified that his log indicated that at 1:18 p.m. on the date in question, the communication officer on duty received a call concerning the subject fire. The records indicated that the first truck arrived at the scene at 1:21 p.m.

Captain David Towry testified that he was in command of the first fire engine at the scene. He stated it took them approximately thirty minutes to get the fire under control since the fire tended to reignite and flash back. Towry stated this was a characteristic of a flammable liquid or something other than a regular combustible. He further related that the living area was totally burned out, the kitchen area was very heavily burned and that there was considerable fire damage to the roof structure in the west portion of the attic. The refrigerator and the shelves in the kitchen area were virtually empty of foodstuffs. On cross-examination Towry stated that the evidence indicated that the avenue of the firespread went from the living room to the kitchen and from the living room through a window up into the roof and under the overhang to the attic. He found no evidence of accelerant containers during cleanup. He further stated that modern artificial fibers and other materials give off toxic fumes but couldn't say whether they would cause flashbacks. He further stated that he became suspicious of arson only because the occupants of the house had been gone for such a short period of time.

Fire Investigator Loren B. Sunday was then qualified as an expert and testified that he arrived at the scene at approximately 1:45 p.m. on the day in question. He testified that the fire had two separate points of origin, one in the upstairs area and one in the living room-kitchen area. It was his opinion that the fire in the lower level burned from the living room into the kitchen and that a separate and distinguishable fire started in the upstairs area, burning from the top downward. He further related that there was no visible electrical malfunction and that there was a flammable liquid pattern on the first floor. It was his opinion that the fire was intentionally set basing his conclusion on the presence of two separate fires, the presence of a flammable liquid pattern, the burn time involved and the extent of damage to the structure. He eliminated any accidental causes because the occupants had been seen leaving the structure shortly before the discovery of the fire. He further testified that if the particular fire in question had burned under ordinary circumstances from an ordinary source of ignition, the burn time would have been approximately forty-five minutes to an hour. On cross-examination Sunday stated that there was no way of telling what materials were in the burned out areas. There was no evidence as to what the accelerant might have been. The State then rested.

The first defense witness was Captain Edwin Alphin of the Tulsa Fire Department who testified that the predominant burning in the attic was directly above the living room; that fire could have been transferred from room to room through something as simple as the studding; that the window on the west side of the house had been blown out and that the heat and fire travelled out and up, possibly into the attic. He further stated that the only unusual thing about the fire was the fact that it spread so fast and was so large. On cross-examination Alphin stated that he was not trained in fire investigation.

Calvin Teague then testified that he had been doing business with defendant Hall for ten years, and that he had known her from the horse training and trading community and had met defendant McNeil through her. He further stated that he had traded with horse people all his life and that he had never heard anything bad about either defendant, although he did know of defendant McNeil's past troubles with the law.

Defendant Hall then testified on her own behalf stating that on the day in question she was feeling ill and had stayed home and taken Darvon as a pain killer. Near lunch time her son-in-law, defendant McNeil, awakened her and told her that they should go out to tend their horses. When she left the house she remembered seeing Mrs. Young and waving to her. The defendants then went to a feed store. She further stated that all family earnings were placed in a common pool, as was the settlement of approximately $14,000.00 which she received on the insurance claim.

A. J. Coles then testified that he was in the horse trading business and had known defendant Hall for approximately twelve years and that there had never been any reason to question her character or integrity. He also had a high opinion of defendant McNeil although he was unfamiliar with his background.

Defendant McNeil then testified in his own behalf stating that he was a truck driver, construction worker and horse trader and that he had been twice convicted of felony offenses. On the date in question he returned home at approximately 11:30 a.m. and awakened his mother-in-law in order to ask her to go with him to check on a horse. When leaving he saw Mrs. Young across the street and waved. They then proceeded to a feed store and subsequently returned to the residence about 3:00 p.m. after feeding the horses. He further stated that it was the insurance agent's suggestion that a $20,000.00 policy be taken out and that he had only made one insurance claim in his life. He further stated that he never tried to hide his criminal background when applying for the insurance.

The defense then recalled Captain Sunday who testified he was present at an interview with the defendants at the central fire headquarters and that the conversation had been taped. The defendants then asked that the complete transcription of the conversation be admitted into evidence and the State objected because of the mention of a polygraph examination. The trial court overruled the objection, admitted the full statement and cautioned the jury not to consider any reference to a polygraph test. The defense then rested.

The defendants' first assignment of error urges that the defendants were denied a fair and impartial trial by the refusal of the trial court to allow the court reporter's notes to be used in lieu of a preliminary hearing transcript for the purpose of impeaching a State's witness.

The defense brief indicates that defense counsel recalled from the preliminary hearing that Officer Sunday testified that there were three separate fires in the home. However, during the trial Sunday testified there were only two separate fires, his testimony being as follows:

"Q. (By Mr. Hoffman) Have you ever at any time thought there were three separate fires, sir?

"A. (By Mr. Sunday) No, sir.

"Q. Have you ever testified that in fact there were three hot spots in this house?

"A. Yes, sir.

"Q. Could you explain, please?

"A. There were two fires, the fire on the lower level involving two rooms; there were two areas of fire on the bottom floor, both of them joining to make one fire.

"Q. I see."

The defendants argue that they were substantially prejudiced when, after the State rested, the trial court refused to allow defense counsel to call the court reporter who reported the preliminary hearing to read her notes to impeach Officer Sunday.

It is disputed whether the Court rules of the District Court, Tulsa County allowed the preparation of a transcript of the preliminary hearing at public expense for the purpose of impeachment. This is irrelevant, as ordinarily the procedure to be followed in obtaining a transcript of preliminary hearing for an indigent defendan...