People v. Barr

• Decision Date: 24 March 1987
• Docket Number: Docket No. 85275
• Citation: 156 Mich.App. 450,402 N.W.2d 489
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Henry BARR, Defendant-Appellant. 156 Mich.App. 450, 402 N.W.2d 489
• Court: Court of Appeal of Michigan — District of US

Page 489

402 N.W.2d 489

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Henry BARR, Defendant-Appellant.

Docket No. 85275.

156 Mich.App. 450, 402 N.W.2d 489

Court of Appeals of Michigan.

Submitted Oct. 17, 1986.

Decided Dec. 2, 1986.

Released for Publication March 24, 1987.

[156 MICHAPP 452] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Criminal Div. Research, Training and Appeals, Andrea L. Solak, Asst. Pros. Atty., for the People.

Thomas A. Ricca, Detroit, for defendant-appellant.

[156 MICHAPP 453] Before WAHLS, P.J., and R.B. BURNS and WARSHAWSKY, ^* JJ.

PER CURIAM.

Defendant was convicted by a jury of burning real property, M.C.L. Sec. 750.73; M.S.A. Sec. 28.268. He appeals and we affirm.

Malcom Moore was eleven years old and lived across the street from the Lyndon Lunch. He had worked for the defendant passing out handbills for the restaurant.

On March 19, 1984, at 4:00 p.m., Moore was standing in the doorway of his home. He observed two men at the rear of the Lyndon Lunch. The men were throwing two gas cans into the back door of the restaurant. After leaving the restaurant, the two men went to the alley, then to a car parked on the next block. Moore described the two men as being about forty-five and eighteen years of age. Both were white. The older, taller man had a beard and wore a brown jacket and green slacks. The younger, shorter man wore jeans and a black leather coat. Moore was not wearing his glasses at the time and could not say whether the older man was defendant.

After observing the incident, Moore told his sister, Anthia, to call the fire department. Anthia called the operator who then called the fire department.

Detroit firefighters arrived at the Lyndon Lunch, located at 8000 Lyndon in the City of Detroit, between 4:00 and 4:15 p.m. They found the front door locked and all of the windows of the building secured. However, both the outside and inside rear doors of the building were open.

About six feet inside the building, a firefighter found a burning gasoline can and very heavy smoke. A second burning gasoline can was found [156 MICHAPP 454] farther inside the building. A number of other fires were burning in the walls of the restaurant. All the fires were extinguished by 5:15 p.m.

Lieutenant John Bozich, an investigator for the Detroit Fire Department, arrived at the Lyndon Lunch sometime before the fire was extinguished. Bozich first noted a strong odor of gasoline from the interior of the building. Inside, he observed fifteen separate points of origin of the fire. The majority of those were holes broken into the plaster walls, into which gasoline-soaked newspapers had been inserted. In other areas, gasoline had simply been poured over booths and tables of the restaurant, then ignited. Over defense counsel's objections, Bozich testified that it would have taken twenty to twenty-five minutes to set the fire.

Lieutenant Larry Crowder, also an arson investigator for the Detroit Fire Department, arrived at the Lyndon Lunch with his partner, John Bozich. Crowder spoke with defendant, the owner of the Lyndon Lunch, while his partner investigated the building. According to Crowder, defendant was wearing a brown, 3/4-length coat and green pants. Defendant's son, Jeffrey Barr, was wearing a black jacket, jeans and black shoes. Crowder testified that he also interviewed Malcom Moore and found that Moore's clothing description of the two men who threw the gas cans into the building matched that of defendant and his son.

Sam Pernicano, a real estate broker, testified that he had handled the sale of the Lyndon Lunch from Berman to defendant in 1982. The purchase price was $72,000 to $75,000. Pernicano further testified that he had been attempting to sell the Lyndon Lunch for defendant at the time of the fire. During the previous six months, the best offer that Pernicano obtained for the property was $57,000. However, Pernicano denied that the value [156 MICHAPP 455] of the property had significantly declined, explaining that it was a "good money-maker."

On appeal, defendant raises several issues.

I. Did the trial court err in allowing the opinion testimony of Lieutenant John Bozich as to the time and method used to set the fire at the Lyndon Lunch?

In the course of trial, Lieutenant John Bozich of the Detroit Fire Department gave extensive testimony. Bozich testified that he had been employed by the Detroit Fire Department for the past eighteen and one-half years. For the previous seven and one-half years, he had worked in the arson section of the department. Bozich testified that he had extensive training in arson investigation, both on the streets and in the classroom. Bozich's qualifications as an expert in arson investigation were not seriously disputed and were accepted by the trial court. However, defendant did object to the scope of Bozich's opinion testimony, both at a hearing for a motion in limine and at the time of trial. Specifically, defendant objected to Bozich's testimony regarding the time it would take to punch the holes in the walls, soak the newspapers with gasoline, push them into the walls, light the fires and exit the building. Bozich testified that it would take about twenty minutes for one person to complete those acts and about twenty-five minutes for two persons, since there would be communication problems in the latter case. Defendant argues that Bozich was not qualified to conduct a "time-and-motion study." Defendant also argues that Bozich's testimony as to the type of tool used and the number of persons involved was based upon facts not in evidence.

This Court has held:

[156 MICHAPP 456] "The admission of expert testimony is governed by MRE 702. The rule contains three prerequisites which must be satisfied before the witness may testify: (1) the witness must be an expert; (2) there must be facts in evidence which require or are subject to expert analysis; and (3) the knowledge of the expert must be in a field where knowledge belongs more to experts than to the common man. Syrowik v Detroit, 119 Mich App 343, 348, 326 NW2d 507 (1982); O'Dowd v Linehan, 385 Mich 491; 189 NW2d 333 (1971)." Cook v. Detroit, 125 Mich.App. 724, 735, 337 N.W.2d 277 (1983).

Whether witnesses are sufficiently qualified to render opinions rests within the sound discretion of the trial court and that court's decision will only be reversed for an abuse of discretion. Dybata v. Kistler, 140 Mich.App. 65, 362 N.W.2d 891 (1985).

The trial court denied defendant's motion to suppress after reviewing MRE 702 to 705. Bozich did not testify at the motion hearing, but at trial he explained that his training and experience in arson investigation included starting home fires:

"Q. [Defense Counsel :] Lieutenant. What I asked you was whether based upon your own experience you have ever stuffed paper in a hole in a wall?

"A. [John Bozich: ] Yes, I have. One of the benefits of my job is that we get to set fires a lot of times in homes, and we devise ways to set fires, and we often do it by setting newspapers within the wall to try and make it look like an electrical fire of some sort. We stuff papers around electrical circuit areas."

It seems rather doubtful that the common man has Bozich's experience in deliberately setting home fires. We find no abuse of discretion on the part of the trial court in admitting Bozich's testimony as to the method and time involved in setting the fire at the Lyndon Lunch.

[156 MICHAPP 457] II. Did the trial court err so as to require reversal by failing to conduct a full evidentiary hearing on defendant's motion to suppress?

The trial court did not refuse to hold a "full" evidentiary hearing, but merely decided the matter on the evidence before it. Defendant offered no witnesses. The only evidence presented to the trial court was the preliminary examination transcript.

Defendant also argues that the evidence seized at his home must be suppressed because the affidavit supporting the search warrant did not establish probable cause. Probable cause is required to support the issuance of a search warrant under both Const.1963, art. 1, Sec. 11 and U.S. Const., Am. IV. The Michigan Constitution does not impose a higher standard of reasonableness for searches and seizures than that imposed by the Fourth Amendment to the United States Constitution. People v. Ragland, 149 Mich.App. 277, 385 N.W.2d 772 (1986).

The United States Supreme Court has held that:

"... probable cause is a fluid concept--turning on the assessment of probabilities in particular factual contexts--not readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 2329, 76 L.Ed.2d 527 (1983).

The Gates Court further held that probable cause must be determined by the totality of the circumstances:

"The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information,[156 MICHAPP 458] there is a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, supra, p. 238, 103 S.Ct. at 2332.

Paragraph five of the affidavit relates that Lieutenants Bozich and Crowder had given "identical clothing descriptions as to coats and pants" as that given by Moore. Moore's clothing description of the two men is given in paragraph four as "brown 3/4 wool coat with green pants and black jacket (waist length) with jeans." A practical, common-sense interpretation of the affidavit is that Lieutenants Crowder and Bozich also described the men wearing a brown 3/4-length wool coat with green pants and a waist length black jacket with jeans, respectively. Under Gates, supra, a practical, common-sense interpretation is sufficient.

The affidavit...