State v. Gray

• Citation: 221 Conn. 713,607 A.2d 391
• Decision Date: 21 April 1992
• Docket Number: No. 14172,14172
• Court: Supreme Court of Connecticut
• Parties: STATE of Connecticut v. Jason GRAY.

Page 391

607 A.2d 391

221 Conn. 713

STATE of Connecticut v. Jason GRAY.

No. 14172.

Supreme Court of Connecticut.

Argued Dec. 5, 1991.

Decided April 21, 1992.

Borden, J., filed a dissenting opinion.

David M. Reilly, New Haven, with whom were Matthew G. Galligan, Wallingford, and Peter B. Reilly, New Haven, for appellant (defendant).

Mitchell S. Brody, Asst. State's Atty., with whom, on the brief, were Michael Dearington, State's Atty., and David Gold, Asst. State's Atty., for appellee (state).

Before SHEA, GLASS, COVELLO, BORDEN and BERDON, JJ.

COVELLO, Associate Justice.

This is the defendant's appeal from his conviction of arson in the first degree in violation of General Statutes § 53a-111(a)(1). ¹ Following a jury trial and a guilty verdict, the trial court rendered judgment sentencing the defendant to fifteen years imprisonment, execution suspended after six years, and five years probation. The issues on appeal are: (1) whether the evidence presented at trial was sufficient to support the defendant's conviction (2) whether the trial court improperly ruled on the admissibility of certain evidence; (3) whether the trial court improperly refused to charge the jury upon a variety of subjects as requested by the defendant; and (4) whether the proceedings, when viewed in their totality, denied the defendant the right to a fair trial. We affirm the judgment.

The jury might reasonably have found the following facts. At the time of the July 7, 1989 fire, the defendant and Calvin Hugins both worked under the supervision of Peter Keselewski in the parts department at Ekblade Oldsmobile (Ekblade), an automobile dealership and service center in Hamden. The defendant had been employed in the parts department for two months, picking up and delivering parts to various automobile dealerships, garages and automotive body shops. Hugins had been employed as the clerk at the parts department service counter for two years, supplying parts to either the service center or retail customers.

The parts department is located in a two story building. The first floor contained, inter alia, a service counter, metal bins, and a desk. Ekblade used the service counter to display small quantities of high demand items such as oil filters and antifreeze. The metal bins contained small parts and various chemicals, including WD-40 and Siloo, a diesel fuel antigel. Ekblade did not store these chemicals on the second floor. The second floor, which can only be reached by a flight of stairs at the rear of the first floor, contained, in part, cartons of oil filters and large parts. It is a five foot by thirty-three foot room with a plywood floor, a concrete ceiling supported by joists, and rows of storage shelves.

On July 6, 1989, at 3 p.m., the defendant informed Hugins that he had noticed a chemical smell emanating from the second floor of the parts department. Hugins, unable to detect any chemical odor, told the defendant to speak to their supervisor, Keselewski. Also that day, the defendant told an Ekblade employee from another department, Marianne McKeon, that he smelled something unusual coming from the second floor. McKeon, like Hugins, did not notice anything unusual but, similarly, urged the defendant to inform Keselewski. Later, at 4 p.m., Keselewski asked the defendant to close a window on the second floor. After returning from the second floor, the defendant said nothing about any unusual odors coming from the second floor. At no time did the defendant ever mention his concerns about chemical smells to Keselewski. Keselewski, like McKeon and Hugins, did not detect any chemical smell when he closed the parts department between 5:30 and 6 p.m.

The next day, July 7, 1989, Hugins opened the parts department at 7 a.m. At 8 a.m., the defendant again told Hugins that he smelled chemicals emanating from the second floor. Hugins searched the second floor but did not notice any unusual chemical smell. Approximately fifteen minutes later, between 8:15 and 8:20 a.m., Hugins noticed that the defendant was restocking the parts counter with oil filters that the defendant had obtained from the second floor. At 8:30 a.m., when Keselewski called Hugins from another car dealership, the defendant was talking with McKeon. About twenty to twenty-five minutes after Hugins observed the defendant shelving the oil filters, Hugins saw smoke coming from the area of the stairs to the second floor. Hugins turned off the first floor lights and reported the fire by telephoning the "911" emergency number. The defendant told McKeon that he had to get his keys and rushed toward his desk in the rear of the first floor. McKeon, who attempted to follow the defendant but then turned back because of the blinding smoke, did not see the defendant again until sometime between 11 a.m. and 12 p.m. when he stated: "[T]hey think I did it."

At 8:44 a.m., Hamden firefighters were sent to Ekblade and they arrived shortly thereafter. The firefighters encountered dense smoke and extreme heat and noticed flames in the eastern and southeastern corner of the second floor. By 9:30 a.m., approximately thirty-five to fifty firefighters were able to subdue the flames.

I

The defendant first claims that the record reflects insufficient evidence to support his conviction. He argues that the state failed to establish, beyond a reasonable doubt, that: (1) the fire was intentionally set; and (2) he was the person criminally responsible for its occurrence. We disagree.

A

Experts for both parties presented conflicting testimony at trial as to whether the fire was incendiary or accidental in nature. The state's expert witnesses, Robert Westervelt, Hamden's fire marshal, Joseph Tuscano, a senior arson inspector, and Jack Hubbell, the chemist in the state forensic laboratory, proffered opinions that tended to show that the fire was intentionally set. Westervelt inspected the scene on the morning of July 7, 1989, the day of the fire. Tuscano examined the parts department later that month. They both opined that the fire started in the southeast corner of the second floor where there was a "classic pour pattern" on the floor created by the ignition of a flammable accelerant. Westervelt theorized that the arsonist used approximately twelve to fifteen ounces of a liquid accelerant to start the fire. Westervelt and Tuscano noted that the extensive charring at the base of the shelves was consistent with this theory. Tuscano further testified that the rate at which the fire developed was consistent with the ignition of a flammable accelerant.

Westervelt explained that, in contrast to fires ignited by ordinary, combustible items, which start slowly and gradually build in size and strength, fires started by a flammable accelerant burn rapidly. He testified that the pattern of burning on the walls did not follow a straight line, as occurs with a slow burning fire, and that the second floor window panes were clear and did not exhibit the heavy glaze commonly associated with a slow burning fire.

Westervelt further supported his theory that a flammable accelerant had been utilized to start the fire by explaining how he caused forensic tests to be performed on materials he had collected from the scene of the fire. He testified that, at various times, he had taken samples from the second floor area where the fire originated. Among these were liquid that had been sponged from the floor, debris from the southeast corner of the floor, and a can of Siloo. He placed the samples into cans, sealed them and brought them to the state forensic laboratory for analysis. Hubbell tested the floor debris with a mass spectrometer and found the presence of xylenes, an extremely flammable liquid. Upon performing a spectrometric analysis of the Siloo and comparing it to the xylenes found in the floor debris, Hubbell found that the two samples had an "almost perfect match" in their chemical constituents.

In discounting other possible theories, Westervelt eliminated the second floor light bulbs as a cause of the fire. He determined that all of the bulbs were intact except for one located one foot north of the fire's point of origin. Although the glass portion of that bulb was missing, Westervelt found that the wires and connections were still intact and that there was no evidence of pitting or melting consistent with temperatures that would give rise to sparking. Further, he did not see any material either in contact with or lying on the floor directly beneath this fixture.

The defendant's expert witness, Matthew Conlon, concluded, however, that the fire probably originated at a light bulb and then radiated downward. Conlon based his testimony on examinations of photographs of the fire scene; he did not visit the actual scene of the fire. Conlon opined that a light bulb of a wattage too high for the fixture could have melted and then dripped molten material to the floor causing secondary ignition. Alternatively, he testified that a bulb could have come into contact with material on the upper portion of a shelf thereby causing a fire. Conlon maintained that the burn patterns on the floor were caused by material that had dropped to the floor after the fire had already ignited above ground.

Conlon testified further that an electrical cord, which had originated on the first floor and extended to the second floor, may have been a cause of the fire. He also opined that Hugins would have noticed the fire sooner if the defendant had indeed ignited the flammable accelerant twenty to twenty-five minutes earlier.

It is well established that in reviewing a claim of insufficient evidence, a two-part inquiry is undertaken. "We first review the evidence presented at the trial, construing it in the light most favorable to sustaining the jury's verdict. We then determine whether, upon the facts thus established and the inferences reasonably drawn therefrom, the jury could reasonably have concluded that the cumulative effect...