Kreijanovsky v. State
| Decision Date | 23 September 1985 |
| Docket Number | No. F-83-221,F-83-221 |
| Citation | 1985 OK CR 120,706 P.2d 541 |
| Parties | William KREIJANOVSKY, Appellant, v. STATE of Oklahoma, Appellee. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
William Kreijanovsky was convicted in Comanche County District Court, Case No. CRF-82-190, on charges of Second Degree Burglary and First Degree Arson, in violation of 21 O.S.1981, §§ 1435 and 1401. The appellant was sentenced to six (6) years' and fifteen (15) years' imprisonment, respectively, to be served consecutively.
On March 29, 1982, property was stolen from the home of Robert Phillips shortly before his house was destroyed by fire. Several witnesses saw a pickup similar to the appellant's in the Phillips' neighborhood on the afternoon of the crimes. The pickup circled Carol Marshall's house between 2:15 and 2:30 p.m. Delores Given saw the pickup parked at the Phillips' home at 2:00 p.m., one hour before she noticed the fire. The pickup was observed at the house less than ten minutes prior to the fire by neighbor Carl Roberts. Don Ward, who lives one-half mile from Robert Phillips, watched an identical pickup, loaded with furniture, stop briefly in front of his house at 3:00 p.m. Fire experts testified that the fire was the result of arson and that gasoline was used to fuel the blaze.
The day following the fire, Ronald Crader, a friend of the appellant's, visited appellant Kreijanovsky's home where he observed "a whole lot of stuff that wasn't there before." After first explaining that he had been to a garage sale, the appellant confessed to Crader that he had burglarized Robert Phillips' house. He denied starting the fire.
Pursuant to a call from Crader's wife, Comanche County Deputy Sheriff Harold Sims arrested Kreijanovsky on March 31. At the station, the appellant signed a rights waiver and confessed to the burglary. When the two questioning officers interrogated Kreijanovsky in regard to the arson charge, the appellant requested a lawyer and refused to speak. Immediately thereafter the appellant was asked to sign a consent-to-search form authorizing search of his house. After signing the consent, Kreijanovsky, Sims, and Banks went to the appellant's home where fruits of the burglary were seized along with a gas can, which was the only physical evidence linking the appellant to the fire. The appellant claimed he purchased the can on March 30 to carry fuel for a lawnmower he had stolen in the burglary. Kreijanovsky denied that he, in any way, started a fire at the home of Robert Phillips.
Appellant's first assignment of error concerns prosecutorial comments on the appellant's decision to remain silent. During the State's case-in-chief the prosecutor elicited the following comments from Deputy Sims on direct examination:
Q. And what was the substance of the conversation?
A. We asked him about whether he had been out in that area, and whether he had been at that residence, and he said that he had taken the stuff from Mr. Phillips' house, and we talked to him on this and asked him where the merchandise was at, and he said it was still all at his residence over on Floyd, and we talked to him probably about twenty minutes on this, and then when we started asking him anything about the fire, he said he wanted a lawyer.
Q. During the period of your--course of your conversation up to the time that he requested an attorney, did you ask him any questions in regard to the fire?
A. No, sir, not until we started talking to him. We talked about the burglary, and then when we started talking about the fire, he wouldn't talk to us on that.
* * *
Q. Other than that, were there any other references to the fire?
A. None that I know of, no.
Q. Okay. After having the conversation you have testified to with him, what did you do?
A. Okay. At 12:32, approximately 12:32, he asked for his attorney, so we stopped questioning at that time.
* * *
Q. After he requested an attorney, did you interrogate him any further?
A. No, sir, not pertaining to the fire or anything.
It is improper for a prosecuting attorney to comment, even for impeachment purposes, on an accused's failure to give up the right to remain silent after accused has received Miranda warnings. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 59 L.Ed.2d 91 (1976); State v. Neal, 604 P.2d 145 (Okl.Cr.1979). In the instant case, the evidence of appellant's silence was repeatedly introduced during the State's case-in-chief, not for impeachment purposes on cross-examination. This makes the comments more offensive because the only purpose served was prejudice to the defendant. Had the prosecutor ceased after the first question the error probably would not have been prejudicial. His continued questioning, however, compounded the error, causing it to be prejudicial.
Similar comments in Dungan v. State, 651 P.2d 1064 (Okl.Cr.1982), constituted fundamental error. Dungan held that such evidence was totally irrelevant and that since the questions were of no probative value, their sole effect was to prejudice the appellant.
Due to the lack of probative value of the evidence and its extreme prejudicial consequences, this Court is unable to hold that the comment on appellant's post-arrest silence was harmless beyond a reasonable doubt as to the arson charge. The arson conviction must therefore be reversed. The comment was harmless beyond a reasonable doubt, however, as to the burglary charge in light of the overwhelming evidence. Thus, that conviction does not warrant reversal. Title 20 O.S.1981, § 3001.1.
The appellant also alleges that the trial court's failure to instruct, sua sponte, on the issue of voluntary intoxication was fundamental error, because the appellant's testimony that he had consumed five quarts of beer negated the specific intent element of the crimes charged. Initially we note that arson is not a specific intent crime, and voluntary intoxication is available as a defense only when the crime with which the defendant is charged has as its mens rea element a specific criminal intent or a special mental element. See 21 O.S.1981, § 1401 and Boyd v. State, 572 P.2d 276 (Okl.Cr.1977), respectively.
As to the burglary, the evidence presented in the instant case regarding the appellant's intoxication was insufficient to require an instruction. According to his own testimony, the appellant at one point "decided" to load the victim's possessions into appellant's pickup truck. When asked at trial by his own attorney whether he took precautions at the victim's home to try to hide his identity or to prevent discovery, he answered that he had worn gloves and wiped the only doorknob he had touched without the gloves. As appellant's testimony negated the defense by demonstrating he was in control of his mental faculties, the court's failure to instruct, sua sponte, on voluntary intoxication was not error. See Norman v. State, 648 P.2d 1243 (Okl.Cr.1982).
Next the appellant contends that a conviction for First Degree Arson cannot be soundly based when no one was actually in the home during the blaze.
21 O.S.1981, § 1401 provides:
Any person who willfully and maliciously sets fire to or burns or by the use of any explosive device or substance destroys in whole or in part, or causes to be burned or destroyed, or aids, counsels or procures the burning or destruction of any building or structure or contents thereof, inhabited or occupied by one or more persons, whether the property of himself or another, shall be guilty of arson in the first degree.... (Emphasis added.)
21 O.S.1981, § 1402 reads as follows:
Any person who willfully and maliciously sets fire to or burns or by the use of any explosive device or substance destroys in whole or in part, or causes to be burned or destroyed, or aids, counsels or procures the burning or destruction of any uninhabited or unoccupied building or structure or contents thereof, whether the property of himself or another, shall be guilty of arson in the second degree.... (Emphasis added.)
The Oklahoma Uniform Jury Instruction Criminal 502 correctly defines inhabited: "A building or structure is deemed to be inhabited if any part of it is normally used by any person for lodging." Although the dwelling in the present case was unoccupied at the time of the fire, it was certainly inhabited as the place where the Phillips family lived. When an inhabited structure is burned, the probability of someone being inside is very high. Due to such a high probability, risks persist to firefighters and rescuers who believe that people are present. We hold that 21 O.S.1981, § 1401 allows a conviction for the willful burning of a building or structure presently used for lodging, notwithstanding the absence of occupants at the time...
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