State v. Berkley

• Decision Date: 11 December 1989
• Citation: 567 A.2d 915
• Parties: STATE of Maine v. William BERKLEY a/k/a William Berkley Strong.
• Court: Maine Supreme Court

Page 915

567 A.2d 915

STATE of Maine v. William BERKLEY a/k/a William Berkley Strong.

Supreme Judicial Court of Maine.

Argued Nov. 2, 1989.

Decided Dec. 11, 1989.

James E. Tierney, Atty. Gen., Garry L. Greene (orally), Asst. Atty. Gen., Augusta, for plaintiff.

Wayne P. Libhart (orally), Ellsworth, for defendant.

Before McKUSICK, C.J., and ROBERTS, WATHEN, GLASSMAN, CLIFFORD, HORNBY and COLLINS, JJ.

WATHEN, Justice.

Defendant William Berkley appeals from his conviction of arson to collect insurance proceeds, 17-A M.R.S.A. § 802(1)(B)(1) (Supp.1988), following a jury trial in Superior Court (Hancock County, Alexander, J.). Defendant argues on appeal that both the prosecution's pre-indictment delay, as well as the admission of the results of the analysis of soil samples taken by defendant's insurer's agent as part of the insurer's investigation of the fire, violated his right to due process under the Maine and United States Constitutions. Defendant further contends that the admission of the analysis of soil samples violated M.R.Crim.P. 16(d). Finally, defendant argues that the trial justice committed reversible error in making several rulings at trial. We affirm the Superior Court.

Defendant owned a large log structure on the south shore of Tunk Lake in Hancock County known as "the Wickyup" or "the Admiral Byrd Property." Defendant purchased the property, along with approximately fifty surrounding acres, from Richard E. Byrd, Jr. in April, 1983. Wickyup was the only asset of Chimney Market Corporation, a development business of which defendant was the sole officer and shareholder. Defendant planned to use Wickyup as a summer residence and develop condominiums on the surrounding lake shore land. Soon after defendant purchased the property, however, certain Byrd family members obtained a court order enjoining him from proceeding with his development plans. ¹ On July 11, 1984, defendant obtained a binder effective for thirty days insuring Wickyup for $824,000 through Commercial Union Insurance Company (Commercial Union). On July 17, 1984, the building was completely destroyed by fire.

State fire investigator John Morse visited the scene on the day of the fire. He approached defendant and asked him to sign a consent to search the property, but defendant refused, explaining that he wished to consult with his attorney. The next day defendant signed the consent and was questioned by Morse concerning the cause of the fire. Defendant claimed that he arrived at Wickyup with his watchdog at 7:45 a.m. on the morning of July 17. After lighting a kerosene lamp and placing it on a table in the dining room, defendant went into the kitchen and began to prepare coffee. When he returned to the dining room, the kerosene lamp was on the floor and a fire was started. Defendant hypothesized that his dog must have knocked over the lamp.

On July 21, representatives from First Security Services Corporation (First Security), a private investigation firm retained by Commercial Union, took four soil samples. The samples were sent to an analytical chemist who concluded that three of the four contained a detectable amount of motor gasoline.

On June 17, 1985, defendant was indicted for two counts of arson. The State's case was based on the chemist's analysis of the soil samples, defendant's statements made to Morse, two statements under oath made by defendant to Commercial Union as required by the contract of insurance, and the testimony of Morse, insurance investigators, firefighters, defendant's caretaker, and others. The State's theory was that defendant intentionally started the fire by means of an accelerant.

Defendant moved to dismiss because of pre-indictment delay. After a hearing, defendant's motion was denied. On April 17, 1986, defendant moved for production of the samples pursuant to M.R.Crim.P. 16(b)(2). The State, however, was unable to comply with defendant's request because the samples, which had been kept in First Security's vault, were discarded by First Security personnel shortly before defendant moved for their discovery. Both sides agree that at the time defendant made his discovery request the integrity of the samples was destroyed because the samples had been stored in metal containers that had rusted out. Prior to trial defendant moved to suppress the evidence obtained from the soil samples and his motion was denied. A jury trial resulted in defendant's conviction and he now appeals.

I.

Defendant argues that his ability to mount an effective defense was substantially impaired by the prosecution's delay in bringing the indictment and that this constituted a violation of his right to due process under the Maine and United States Constitutions. Specifically, defendant contends that he was denied the opportunity to test independently the soil samples taken by First Security, that he had no reason to think that he should be taking his own soil samples to aid in his criminal defense, and that even if he had taken such samples they would have been of dubious evidentiary value to him. ²

The prosecutor's discretion in this area is wide. In deciding due process challenges based on pre-indictment delay, this Court has embraced the restrictive standard articulated by the United States Supreme Court in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977). In State v. Hutchins, 433 A.2d 419 (Me.1981), we held that "[b]efore the prosecution is under any obligation to come forward with evidence explaining its delay, the burden is on the defendant to make out a prima facie case of actual and unjustifiable prejudice," and that even when this initial burden is met, "[t]he ultimate burden of persuasion remains with the defendant[.]" Id. at 423. See also State v. Chapman, 496 A.2d 297, 301 (Me.1985). Moreover, regarding the State's burden of explanation, we explained that "prosecutors are not constitutionally obligated to file charges the moment they have assembled evidence of guil[t]," and that a prosecutor " 'abides by [standards of fair play and decency] if he refuses to seek indictments until he is completely satisfied that he should prosecute and will be able promptly to establish guilt beyond a reasonable doubt.' " Id. at 422.

Defendant has failed to show that he suffered actual and undeniable prejudice as a result of the delay. With respect to his ability to conduct independent tests on the First Security samples, his own expert testified that rusting of the containers would have resulted in a loss of sample integrity in two months. Even after he was indicted, defendant waited a full ten months before he made his discovery request. Regarding his lack of knowledge that he was under suspicion, defendant acknowledges that he initially refused to sign a consent to have the state fire inspector search the premises until he had consulted his attorney; further, the fire inspector testified that while at the scene on July 21 he met a Mike Bliss who showed him a note (apparently written by defendant's caretaker or the caretaker's wife) instructing him to observe the investigators and record where samples were taken. Finally, the presence of Mike Bliss at the scene at the time First Security collected the soil samples shows that defendant could have taken his own samples from the same locations.

II.

Defendant next asserts that the admission of the test results of the First Security samples violated his right to due process under the Maine and United States Constitutions. Defendant's theory is that the samples were actually exculpatory and that under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny even good faith failure to preserve discoverable evidence results in a violation of due process.

In California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), the United States Supreme Court addressed the scope of "the government's duty to take affirmative steps to preserve evidence on behalf of criminal defendants." Id. at 486. The Court established a two-part test for determining whether a good faith failure to preserve evidence violates a defendant's right to due process. First the evidence must "possess an exculpatory value that was apparent before the evidence was destroyed;" and second, the evidence must "be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." Id. at 489.

Applying the Trombetta test on this record, defendant has satisfied neither prong. The fact that defendant's expert disagreed with the State's expert regarding the correct interpretation of the gas chromatographs made from the samples, without more, does not establish that the samples possessed an exculpatory value that was apparent before the evidence was destroyed. With regard to the second prong of the Trombetta test, the record supports the conclusion that defendant had the ability to obtain comparable evidence of his innocence. As indicated above, the State provided defendant with the gas chromatographs made from the First Security samples and his expert did in fact use them at trial in an effort to establish defendant's innocence. Further, defendant's expert testified that the methodology employed by the State's expert in making the chromatographs was unsound and that as a result the utility of the chromatographs was doubtful. Finally, as mentioned earlier, defendant had ample opportunity to take his own samples.

Our analysis is consistent with Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). In that case, the United States Supreme Court further narrowed the circumstances under which nonpreservation of evidence will be found unconstitutional. Faced with a due process challenge based on the negligent failure of police to preserve semen samples that might have proved helpful to the defendant in a child molestation case, the Court held "that unless a criminal defendant can...