People v. Mulligan

• Decision Date: 29 August 1977
• Docket Number: No. 27435,27435
• Citation: 568 P.2d 449,193 Colo. 509
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony Charles MULLIGAN, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 449

568 P.2d 449

193 Colo. 509

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Anthony Charles MULLIGAN, Defendant-Appellant.

No. 27435.

Supreme Court of Colorado, En Banc.

Aug. 29, 1977.

Rehearing Denied Sept. 19, 1977.

J. D. MacFarlane, Atty. Gen., Edward G. Donovan, Sol. Gen., Dale Tooley, Dist. Atty., Thomas P. Casey, Chief Complaint Deputy Dist. Atty., Richard T. Spriggs, Chief Deputy Dist. Atty., Brook Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for plaintiff-appellee.

Holme, Roberts & Owen, John L. Kane, Jr., John R. Webb, Denver, for defendant-appellant.

LEE, Justice.

Appellant, Anthony Charles Mulligan, appeals from his conviction on two counts of second-degree arson (1971 Perm.Supp., C.R.S.1963, 40-4-103) ¹ and one count of conspiracy to commit second-degree arson (1971 Perm.Supp., C.R.S.1963, 40-2-201). ² We affirm in part and reverse in part.

The charges arose out of a series of condominium fires which occurred between April 1968 and June 1972 in the Denver metropolitan area. The state grand jury returned an indictment against appellant and codefendant William F. Swanson, who later testified for the People at appellant's trial under a grant of immunity. The indictment charges the defendants with responsibility for the February 5, 1972, fire at Hampden Place Apartments and the July 24, 1972, fire at Springwater Apartments. Appellant pleaded not guilty to all counts.

Appellant's trial was set for October 22, 1975. On October 17, 1975, appellant sought a continuance on the grounds of prejudicial publicity concerning a fire on October 10. The same day, he moved to compel disclosure of the People's confidential informer. Initially, the district court denied the motion for continuance but granted disclosure of the informer. Three days later, the court reversed itself and denied the disclosure motion as well.

Appellant again sought a continuance on October 23, 1975, the eve of trial. The motion was based on a radio broadcast in which the district attorney and one of his deputies suggested a connection between the condominium fires and organized crime. The court denied the motion but ruled that any juror hearing the program could be challenged for cause. The trial was reset for October 24, 1975.

The People's case consisted in large part of the testimony of developers and building contractors who had suffered fires on their projects, prosecution for which was barred by the statute of limitations. Generally, they testified to being contacted by appellant, who was field representative for the Northern Colorado Building and Construction Trades Council, regarding the use of union construction workers. Appellant attempted to persuade them to hire union workers and attempted to persuade workers already hired to join the union. According to one witness, appellant stated that "problems had been known to arise over people that had an open shop." Another witness testified that appellant had remarked that construction projects with no union contractors "had been known to burn." At other projects, appellant allegedly said in parting that they would be back or that the contractor would be hearing from them.

Some time after appellant's visit, the project would suffer a fire later described by an expert witness as being of incendiary origin, i. e., a "set" fire. In instances, appellant revisited the project after the fire. At one project, he specifically denied responsibility for the fire. Encountering further resistance to his efforts on behalf of the union at another site, he said, "I thought we had taught you a lesson before."

The People next presented Paul R. Welch, an official of the local lathers' union and delegate to the Northern Colorado Building and Construction Trades Council. Welch related a conversation with appellant shortly before the April 12, 1968, apartment fire at 1075 Washington Street, Denver. He testified that appellant expressed concern about his success as a union organizer and felt the need for stronger organizing methods. According to Welch, appellant made similar statements after the April 12, 1968, fire. None of Welch's testimony at trial directly implicated appellant in these fires.

Welch's testimony, however, did implicate appellant in the February 27, 1970, fire at 921 Kennedy Drive in Northglenn. He testified that after work on that date he accompanied appellant to a bar in Thornton. They discussed union affairs, organizing problems in particular. Again, appellant stated a need for stronger organizing methods. From there they went to another bar, continuing their discussion and becoming, according to Welch, "very drunk." They then returned to appellant's car. Appellant transferred two parcels from his car to Welch's car. At appellant's direction, they drove north to a residential area, where they stopped. Appellant left the car, taking the two parcels. He told Welch to drive around the block. When Welch returned, he saw appellant running down the sidewalk. At appellant's direction, he drove around the corner and stopped, where he waited for appellant, who then got in the car, and they left the scene.

Welch described himself as "in some state of emotional uproar." Appellant said, "What's wrong with you?" and "You are acting brand new." Attempting to reassure Welch, appellant said "Shape up" and something about "This is nothing new," or words to that effect.

Fortunately, a passing motorist saw the fire. He stopped and was able to remove a container which had a flammable liquid burning against the open studding of the building under construction. Firemen responded and the fire was quickly extinguished.

Next, Welch described union business agent meetings, attended by appellant and him. He testified that the subject of the fires arose indirectly. At a meeting in early 1971, a heated discussion of stronger organizing methods took place. One person stated that if the counsel was responsible, it should stop "(b)efore a fireman gets killed."

During cross-examination of Welch, defense counsel renewed his motion for disclosure of the People's confidential informer. The basis of this motion was a Colorado Bureau of Investigation report relating that Welch had discussed with the informer a fire that occurred on April 12, 1968. According to the report, appellant asked Welch to assist him in setting this fire. The report stated that appellant admitted responsibility for the fire to Welch.

Defense counsel renewed his motion for disclosure of the informer's identity for the purpose of impeaching Welch on his testimony regarding conversations with appellant before and after the April 12, 1968, fire. Unlike his statements to the informer, contained in the CBI report, Welch's trial testimony did not directly implicate appellant in this fire. The court denied the motion.

William F. Swanson testified that he was a business agent for the local cement masons' union at the time of the fires charged in the indictment. He denied that he and appellant had ever agreed to set condominium fires to induce contractors to sign union shop agreements. Swanson acknowledged making statements inconsistent with these denials to a CBI agent in 1974. After giving Swanson the opportunity to explain the inconsistent statements, the district attorney introduced tape recordings of these statements through a CBI agent. On the tapes, Swanson claimed that appellant was responsible for $10 million of damage to nonunion construction projects. The People then rested.

The defense case opened with Robert G. Good, an expert in labor law. Through this witness, appellant attempted to explain union tactics used in negotiating with management and to place appellant's allegedly threatening statements in context, showing that such threats were both common and not related to criminal activity. The court sustained the district attorney's objection to the witness' testifying to the law or to any inferences to be drawn from appellant's statement.

Appellant called witnesses to rebut the People's evidence of common scheme, plan or design. Several builders described generally cordial relations with appellant. Two builders testified to fires on their projects, although neither had experienced union problems or had any contact with appellant.

Regarding the February 5, 1972, fire, appellant attempted to establish that the project was underfinanced, irregularities appeared in the ledgers, and materials supposedly destroyed by the fire turned up elsewhere. This evidence was offered to show that others had a motive to set the fire. The court excluded this testimony.

Three witnesses then described men they had seen at the sites of three fires included in the People's case. The witnesses described the men they saw alternately as being about eighteen, in their thirties, and two black males.

Finally, appellant's wife and daughter provided appellant with alibis for the dates of four fires, including the February 5 and July 24, 1972, fires charged in counts I and II of the indictment. Appellant then rested.

The jury returned verdicts of guilty on both counts of second-degree arson and on conspiracy to commit second-degree arson. Appellant received consecutive five-year terms on the arson convictions and a concurrent five-year sentence for conspiracy.

Before discussing the particular assignments of error for reversal, we note that the record contains competent evidence to support the conviction of appellant on count I of the indictment, arson of the Hampden Place Apartments which occurred on February 5, 1972. Likewise, the record contains ample competent evidence to support count III, that of conspiracy to commit arson.

Concerning count II, the charge of arson of the Springwater Apartments at 3131 West Mexico, we find a dearth of evidence that appellant committed this offense. The general contractor testified that he had never been contacted by appellant and that his union problems had been settled...