State v. Burtchett, 12572
| Decision Date | 21 October 1974 |
| Docket Number | No. 12572,12572 |
| Citation | 530 P.2d 471,165 Mont. 280 |
| Parties | STATE of Montana, Plaintiff and Respondent, v. James BURTCHETT, Defendant and Appellant. |
| Court | Montana Supreme Court |
Morrison, Ettien & Barron, J. Chan Ettien argued, Havre, for defendant and appellant.
Robert L. Woodahl, Atty. Gen., J. Michael Young, Asst. Atty. Gen., argued, Helena, Ronald W. Smith, County Atty., argued, Havre, for plaintiff and respondent.
*
Appellant, defendant below, was convicted of the crime of arson in the first degree and arson with intent to defraud an insurer, by jury, in the district court of the twelfth judicial district of the State of Montana, in and for the County of Hill, before the Honorable Bernard W. Thomas.
Appellant's residence, located six miles south of Havre, Montana, was substantially destroyed by fire on the night of May 14, 1971. The Havre city fire marshal, Richard D. Habeger, who was also a special deputy state fire marshal, inspected the premises on May 15, 1971, took several pictures, but was unable to make a determination as to the cause of the fire. The State Fire Marshal's Office, at the instigation of the appellant's fire insurance company, called Habeger and requested that he go back to the premises for a more detailed inspection. Habeger returned on May 21, 1971, took 15 or 20 photographs and collected samples from seven different holes burned in the floor. Samples from one of the burned holes, adjacent to the floor furnace, were placed in a two pound coffee can, ultimately admitted into evidence as exhibit D; samples from six other holes, further removed from the floor furnace, were placed into another two pound coffee can, and ultimately marked as exhibit E, but refused admission into evidence at the trial. Habeger mailed both exhibits to the alcohol, tobacco and firearms laboratory in Washington, D. C., for examination and report on May 24, 1971. He did not receive an immediate reply.
In August, 1971, appellant encountered Habeger at the Hill County Fair and asked if there had been any results from the investigation. Habeger replied in the negative. In March, 1972, appellant settled his claim with his insurance company, decided to tear down what was left of the residence, and then rebuild. Finding no one to teat down the building, appellant decided to burn down the remainder of the building. He cleared the burning with the City of Havre fire department and with Hill County, but not specifically with Habeger, and in late May 1972, burned down the remainder of the building.
The samples had been received by the alcohol, tobacco and firearms laboratory in Washington, D. C., tested on June 16, 1971, and the results, showing the presence of accelerants, mailed back to Habeger. Unfortunately, at the time the results were returned, the Havre city fire department was moving its residence and Habeger was on vacation. The letter with the results was deposited with some junk mail in a cubbyhole in a desk in the new firehall where it lay unnoticed until late September, 1972, some 15 months later, when Habeger was looking for some material for Fire Prevention Week. He immediately turned all the results of this investigation over to the county attorney for Hill County and this prosecution followed.
Appellant's contentions are as follows:
1. That the court erred in refusing to dismiss the charges on the grounds of prejudicial delay;
2. That the court erred in admitting Exhibit D;
3. That the court erred in admitting the evidence from the forensic laboratory.
Addressing appellant's first contention, there is no question but that a delay in time between the commission of an offense and the commencement of the prosecution, by the filing of an information termed 'preindictment delay' can be the denial of due process. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468. Mere delay, in and of itself, is not sufficient. There must be either actual prejudice to the conduct of the defense, or that the State intentionally delayed to gain some tactical advantage over appellant, or to harass him. United States v. Marion, supra.
In the instant case, appellant concedes in his brief that mere delay is not prejudicial in itself and that the delay in this instance was neither intentional nor purposeful. He does contend, however, that by the time he was put on notice he was the subject of criminal action, the physical evidence had been destroyed, and he was substantially prejudiced thereby.
At a pretrial suppression hearing and at the trial, appellant called as a witness a chemist from Northern Montana College who testified that by the use of a gas chromatograph he could determine whether or not samples from other portions of the floor contained the same components that chemists in the alcohol, tobacco and firearms laboratory in Washington, D. C., found in the sample taken from the holes that had burned through the floor of the house. Evidence had been introduced by appellant that a considerable amount of kerosene smoke had been permitted to collect on the underside of the floor from thawing frozen pipes in the cellar on a number of occasions), and that there was inlaid linoleum on the floor of the house, held in place by either asphalt or some other petroleum-based compound. Appellant's chemist testified that either, or both of these conditions could have given rise to a finding by the State's chemist that there were accelerants present. He would have ground up samples from the floor, placed them in an oven under heat, and analyzed the gases.
The chemist from the alcohol, tobacco and firearms laboratory used gas chromatography but with a different approach. When the samples were first collected by the deputy state fire marshal and placed in coffee cans, plastic lids were placed over the cans and then taped into place. When the government chemists received these cans they inserted a syringe through the plastic lid into the can, withdrew the vapors then existent, and used the gas chromatograph upon the vapors. They found gasoline or naptha present in both cans. These were defined as accelerants, highly volatile, and with an exceptionally low flash point. They further testified that...
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