People v. Foster

• Decision Date: 03 February 1981
• Docket Number: Docket No. 78-2290
• Citation: 103 Mich.App. 311,302 N.W.2d 862
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronnie FOSTER, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 862

302 N.W.2d 862

103 Mich.App. 311

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronnie FOSTER, Defendant-Appellant.

Docket No. 78-2290.

Court of Appeals of Michigan.

Feb. 3, 1981.

Released for Publication March 23, 1981.

Leonard Townsend (now Recorders Ct. Judge), Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, III, Appellate Chief, Asst. Pros. Atty., for plaintiff-appellee.

Before MAHER, P. J., and BRONSON and QUINN, ^* JJ.

BRONSON, Judge.

Defendant, Ronnie Foster, and a codefendant, Detroit Seymore, were charged with first-degree felony murder, M.C.L. § 750.316; M.S.A. § 28.548, and the burning of a dwelling house or its contents (arson) M.C.L. § 750.72; M.S.A. § 28.267. Following a jury trial, defendant Foster was convicted of manslaughter, M.C.L. § 750.321; M.S.A. § 28.553, and the burning of insured property, M.C.L. § 750.75; M.S.A. § 28.270. His accomplice was convicted of second-degree murder and arson. Defendant Foster was sentenced to terms of imprisonment of 81/2 to 15 years and 6 to 10 years on the manslaughter and the burning of insured property convictions respectively. From these convictions, defendant appeals as of right. Codefendant Seymore is not involved in this appeal.

The basic facts may be briefly summarized. Defendant Foster and Seymore set fire to a vacant house in Detroit. The house had formerly been the residence of Seymore and an Irma Smith. The fire department was summoned to battle the fire, and a rookie firefighter was killed while inside the building, following a re-ignition of the blaze.

Defendant contends that the court committed reversible error by charging the jury on first-degree murder and arson because there was insufficient evidence presented to establish that the burned building was a dwelling house inside the meaning of the arson statute. We reluctantly agree. The uncontradicted testimony of Irma Smith, the owner of the building, indicates that she no longer wanted the house and had unsuccessfully sought to deed the property back to the mortgage company. In apparent anticipation of the burning, the house was stripped. All of the radiators, the hot water heater, and the toilet had been removed. The windows in the building had been broken out, and the back door was kicked in. The utilities had been discontinued. The premises was also infested with rats. Ms. Smith was asked whether she ever intended to return to live in the house. However, she was not allowed to answer, following the trial court's ruling sustaining the prosecutor's objection to this question. ¹ Ms. Smith was allowed to testify that she did not intend to lease the building to anybody. It is manifestly evident from the uncontradicted testimony that the house had been abandoned prior to the burning, and was not fit habitation when the fire occurred. In People v. Reed, 13 Mich.App. 75, 79, 163 N.W.2d 704 (1968), this Court said:

"Unless a structure is actually being dwelt in or lived in, it would seem that if it is unoccupied it would have to be a structure that could reasonably be presumed to be a place capable of being dwelt in or lived in to qualify as a dwelling house within the meaning of the statute."

In our opinion, the structure in the instant case could not be reasonably presumed to be fit for habitation. While substantial restorative work could have made the structure habitable, at the time of the fire it was a mere shell of a house and not a dwelling. ²

The Reed Court also noted that arson is an offense against the habitation rather than against the safety of the property. Id., 78, 163 N.W.2d 704. Arson is a more serious offense than other crimes involving the burning of property because of the possibility that those who reside in the dwelling will be killed in the fire. Although death tragically resulted in this case, it was a death that does not call into play the special protection afforded by the prohibition against arson. For the unfortunate firefighter who died in the blaze, the risk of death was not increased by the nature of the structure ignited. An inherent attribute of a firefighter's calling is the possibility of death resulting from the risks of his occupation.

The prosecution on appeal makes both a legal and factual argument regarding why the structure should be construed as a dwelling house. The prosecution relies on People v. Losinger, 331 Mich. 490, 50 N.W.2d 137 (1951), in which the Supreme Court held that the temporary absence of a structure's occupants will not convert a dwelling into some other type of building. The more significant aspect of the Losinger holding, however, was the Court's determination that a structure intended to be occupied constituted a dwelling house. Id., 502, 50 N.W.2d 137. The occupants of the house destroyed in this case had no further intent to occupy it. In fact, the record shows that they had abandoned the destroyed structure. As such, it was not a dwelling house under Losinger.

The prosecution also claims that the following facts were sufficient to support a finding that the building was, indeed, a dwelling house: (1) the structure had been occupied until one week prior to the fire, (2) the building was insured for $11,000 at the time of the blaze, and (3) the house was located in a residential area. The evidentiary insignificance of the first item becomes apparent when one considers analogous situations. For instance, we could not sustain a defendant's conviction for armed robbery where the uncontradicted evidence shows that nothing was taken from the victim on the basis that on the day before the criminal incident said victim had money which could have been the object of a taking. As to the second item, all manner of structures are insured, not just dwelling houses. Furthermore, it is apparent that the purpose of the burning in this case was to perpetrate a fraud on the insurer. Nor does the fact that the building was located in a residential area prove that it was a dwelling house. It is an unfortunate fact of our time that many once pleasant residential neighborhoods in our urban areas suffer from tragic deterioration. In some of our cities it is not at all uncommon to find people living in homes next door to uninhabitable and ruined former dwelling houses. ³

Although it seems to us that the verdicts returned by the jury in this case were fair and amply justified on the evidence adduced, we nevertheless are forced to reverse defendant's convictions. Even though defendant was convicted of neither felony murder nor arson, since the evidence justified submission of neither charge to the jury, we must reverse. The Supreme Court put it thusly in People v. Vail, 393 Mich. 460, 464, 227 N.W.2d 535 (1975):

"(W)here a jury is permitted consideration of a charge unwarranted by the proofs there is always prejudice because a defendant's chances of acquittal on any valid charge is substantially decreased by the possibility of a compromise verdict. For this reason it is reversible error for a trial judge to refuse a directed verdict of acquittal on any charge where the prosecution has failed to present evidence from which the jury could find all elements of the crime charged."

See, also, People v. Meier, 47 Mich.App. 179, 183, 209 N.W.2d 311 (1973).

Despite our resolution of the sufficiency question, it is still necessary for us to address two issues which in all likelihood will arise again on retrial. Defendant argues that the trial court erred in denying his motion to suppress evidence obtained by an arson investigator, who acquired this evidence after making a warrantless entry of the structure, following the containment of the fire. Trial testimony established that the investigator entered the premises to prevent a rekindling of the blaze. Defendant relies on People v. Tyler, 399 Mich. 564, 250 N.W.2d 467 (1977), aff'd. 436 U.S. 499, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), for the proposition that the entry was unconstitutional. The Michigan Supreme Court did hold in Tyler that a...