People v. Gambrell

• Decision Date: 13 November 1987
• Docket Number: No. 79846,79846
• Citation: People v. Gambrell, 415 N.W.2d 202, 429 Mich. 401 (Mich. 1987)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Neal GAMBRELL, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 202

415 N.W.2d 202

429 Mich. 401

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Robert Neal GAMBRELL, Defendant-Appellant.

No. 79846.

Supreme Court of Michigan.

Nov. 13, 1987.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol.Gen., John D. O'Hair, Pros.Atty., and Don W. Atkins, Asst. Pros.Atty., Detroit, for the People.

State Appellate Defender by Susan M. Meinberg, Detroit, for defendant-appellant.

PER CURIAM.

The issue in this case is whether the circuit court erred in its decision that an expert witness called by the defendant was unqualified to testify as an expert.We hold that the trial court did err, and we therefore reverse the judgments of the circuit court and the Court of Appeals.

I

In the early morning hours of December 21, 1983, the defendant and his 2 1/2-year-old daughter were in a motel room that was consumed by fire.The defendant's daughter died.

The defendant was charged with alternative counts of first-degree murder: one count alleged premeditated murder, the other alleged felony murder.The felony-murder count alleged that the murder had taken place in the perpetration or attempted perpetration of an arson.M.C.L. Sec. 750.316;M.S.A. Sec. 28.548.

The defendant was found guilty of felony murder at the conclusion of a June, 1984, jury trial.He was then sentenced to the mandatory term of life in prison.

After the Court of Appeals affirmed the decision of the trial court, ¹the defendant filed in this Court a delayed application for leave to appeal.In lieu of granting the application, we ordered the prosecutor to show cause why the defendant's conviction should not be reversed on several grounds, including that the trial court had erred in refusing to qualify the defendant's expert witness.People v. Gambrell, 428 Mich. 885(1987).The prosecutor has filed an answer to our show-cause order, and the defendant has replied.

II

At trial the defendant testified that he had been drunk on the evening of the fatal fire.The gist of his testimony was that he did not know how the fire started, but that it had surely been an accident of some sort.

To support his testimony that the fire had not been set intentionally, the defendant called a proposed expert witness.The witness testified that he is both an attorney and a registered professional engineer.He had been a chemical engineer for approximately twenty years prior to the defendant's trial.The witness testified that he had worked as a research engineer for a chemical company, as chief engineer of "a thermal convection corporation," and as a consulting engineer.When asked by defense counsel what experience he had had as an expert in fire cases, the witness provided the following testimony:

"Q.Have you ever testified, previously in court, as to the origin of fires?

"A.Yes, I have.

"Q.How many times?

"A.I really couldn't count them.I think there's at least twenty cases I've been involved with that were matters invoving [sic] the origin of fires, for one purpose or another.

"Q.When was the last time?

"A.Well, I'm currently involved in another arson case or a claim of arson.

"Q.Priorto that?

"A.Well, your question was, have I testified?I've been involved, as an attorney, involving cases that involved combustion, ignition and fires.I'm trying to remember if it was in Lansing, Michigan.It was a home that exploded from a gas furnace.There was another one in Trenton, Michigan, which was an apartment house fire that burned down, and I'm trying to remember.Those would be 1975, '76 where I worked as an expert witness.

"Q.Youdid testify in court?

"A.I did, very competently.

"Q.Have you ever lectured on the cause of a fire, to anyone?

"A.I was chief engineer for Detroit, Wayne County Air Pollution Control Agency for a period, as chief engineer in 1969 or '70, in that period.From 1965 to the beginning of 1970, I ran the Downriver Pollution Control Project.I gave a talk about once a month, on the natue [sic] of combustion and industrial processes that use combustion.In addition to that work, I was asked to lecture at the Detroit Police Academy on one or two occasions, about combustion.I've also worked with the Detroit Fire Department in cases that involved gasoline explosions or potential explosions.

"Q.And you have testified about such matters before?

"A.By deposition, yes.I can't think--I've not testified in a case that involved a claim of arson before.I have testified either by deposition or in court, many times, having to do with combustion matters.

"Q.I see.Have you ever consulted with any fire department or fire societies?

"A.No.Other than that, I worked with the Detroit Fire Department, Mr. Kuntz and osme [sic] of his arson investigators, with regard to litigation that involved Shell Oil Company and gasoline leaking into a building.

"Q.Yousay you've been an attorney involved in several arson cases?

"A.I've been involved not in arson, in the criminal sense.I've been an attorney in civil claims that have been where there was a dispute as to the origin of the fire; one party claiming arson and the other people saying it was an accidental fire.Those were civil matters.They were not criminal matters.

"Q.And you've been an attorney for one side or the other?

"A.That's correct.I don't have a list.Approximately a hundred cases, both as Plaintiff and Defendant; some governmental and some industrial."

The assistant prosecutor argued that the witness was not qualified as an expert.("He may be a qualified lawyer, but not qualified to state any opinions on the origins of fires.")After excusing the jury the trial court said that it was "waiting to hear something that is going to relate to his expertise to arson, and I haven't heard anything yet."The trial court asked the witness whether he had "done any arson investigation at all."The witness responded:

"The Witness : Yes, I have dealt with the low point of burns, with flashpoints, of materials both open and closed, coupled with the different ignition temperatures of different materials, the melting points of metals, the evidence left after fires, the tracks left by the formation of combustion products, the phenomenon of paralysis.I can go on at great length."

The trial court then asked the witness whether he had previously been qualified as an expert:

"The Court : You can go on at great length, but tell me what case you testified with respect to arson?

"The Witness : I don't think I can testify in any case, with respect to arson.The question I would be called on to be answered is what is the nature of the origin; of this case, how was it ignited?What does the affter [sic] effect of the fire tell someone about its origin?If the Court is asking me to state that I would testify before a jury that so and so or so and so is guilty or not guilty of a criminal act, I could never do that.

"The Court : You're not called upon to do that.But where is your expertise?The fact that you try arson cases, whether it be civil or criminal, doesn't make you an expert on arson.

"The Witness : I'm trying to tell the Court that arson is simply the claim that someone, criminally and culpably, has caused the ignition of the fire.Before you get to that, I think the court and trier of fact has to know what evidence--what the evidence means, what you find out after the fire, what is there and what does it mean?In all the cases that I've been involved with, some of them would be an insurance company that says that the people burned down their home, intentionally, and we're not going to pay the fire insurance.

"The Court : In those cases, did you testify as an expert and qualified as an expert in what court?When?

"The Witness : First off, I was qualified as an expert, in Trenton.An apartment house fire I told you about, and that case was settled.We came right up to trial.

"The Court: So?So you didn't testify?Name one case in which you testified as an expert in arson, in which any court qualified you to testify in an arson case.

"The Witness : I've never needed to testify in open court, in a so-called arson case.The testimony and expertise I've had deal with all the same things, except with the idea of criminal guilt, which is not my business, anyway.I've studied Paul Kirk's book.I've taught from the book.In fact, I assisted the fire department arson investigators in problems with the Shell Oil Company.Those cases were litigated.It just happened I testified.

"Mr. Dorf : Didn't you give depositions?

"The Witness : Some, I did.The explosion in Lansing, which destroyed one home and damaged 33 others and caused a death and three injuries, I testified as an expert.

"The Court : Where did you testify?

"The Witness : In Lansing, and Ingham County, by deposition.It was read, de bene esse."

There was further discussion.Defense counsel explained the difficulties that he had had in investigating the case, including the fact...