State v. Morehouse

• Decision Date: 12 January 1988
• Docket Number: No. 860193-CA,860193-CA
• Citation: 748 P.2d 217
• Parties: STATE of Utah, Plaintiff and Respondent, v. James Ace MOREHOUSE, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 217

748 P.2d 217

STATE of Utah, Plaintiff and Respondent, v. James Ace MOREHOUSE, Defendant and Appellant.

No. 860193-CA.

Court of Appeals of Utah.

Jan. 12, 1988.

Rehearing Denied Feb. 1, 1988.

Joan C. Watt (Argued) Salt Lake Legal Defender Ass'n, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., David B. Thompson (Argued), Asst. Atty. Gen., for plaintiff and respondent.

OPINION

Before JACKSON, BENCH and DAVIDSON, JJ.

DAVIDSON, Judge:

Defendant appeals his conviction of aggravated arson on the grounds of insufficiency of evidence and insufficiency of counsel. We affirm.

On November 1, 1985, defendant was the lessee and operator of a gas service station located at 400 E. 1300 S. in Salt Lake City. At approximately 8:00 p.m. firemen were called to extinguish a fire in the ceiling over the office in that building. The fire was extinguished with little real damage although the ceiling was pulled down to put out any hot spots. The preliminary cause of the fire was stated to be electrical since a light fixture was located in the area where the fire began. No investigator was called and upon the arrival of defendant the fire department crew left the station in his care.

At approximately 11:00 p.m. the fire department was again called to the scene to fight another fire, this one in the office and service bay. The commander on the scene, Lt. Mauerman, saw that this fire had multiple origins and rather than being suppressed by water, was being spread as though the fire was being pushed around by the spray. He immediately suspected arson and called an investigator. The investigator, Captain Memmot, arrived on the scene very quickly. He began an investigation and concluded that the fire was arson caused. In the course of the investigation that night, he took two rolls of slides and picked up numerous items of evidence for preservation and analysis. Captain Memmot was assisted by a police arson investigator, Detective Clegg, who questioned several witnesses including defendant. The following day and again several days later Captain Memmot returned to the station where he did further investigation and took additional slides.

Several months after the fires, defendant was charged with the crime of aggravated arson. He was tried before a jury, convicted and sentenced to prison. This appeal followed.

Defendant first claims the evidence was insufficient to show arson. The standard of review to be applied to a criminal jury verdict is well established. The Utah Supreme Court in the case of State v. Underwood, 737 P.2d 995 (Utah 1987), outlined the standard.

In reviewing a defendant's conviction, we do not substitute our judgment for that of the jury. State v. Booker, 709 P.2d 342, 345 (Utah 1985). It is the exclusive function of the jury to weigh the evidence and to determine the credibility of the witnesses. Id.

....

When there is any evidence, including reasonable inferences that can be drawn from it, from which findings of all the requisite elements of the crime can be reasonably made, our inquiry stops and we sustain the verdict.

737 P.2d at 996.

The jury was shown evidence which strongly supported the conclusion that both fires were intentionally set. Lieutenant Mauerman testified that the second fire exhibited characteristics of being caused by a flammable liquid. Also concerning the second fire, Captain Memmot testified of multiple points of origin, of pour patterns, burn patterns and damage characteristic of a flammable liquid being poured and then ignited. He testified that evidence taken from the fire scene showed the presence of gasoline. He ruled out the possibility of an electrical fire testifying to his examination of the wiring, junction box and circuit breaker box. He exhibited numerous slides to illustrate his findings and to show why he made his conclusions. While concluding that both fires were intentionally caused, he found no connection between the two.

The jury had before it adequate evidence to conclude that the fires were intentionally caused. We will not disturb their findings.

The defendant next claims the evidence was insufficient to show that he was responsible for either fire. As is the case in most arson investigations, the evidence was largely circumstantial. However, in this case the jury heard from a neighbor who stated she knew defendant and had done business with him. She testified that at 11:00 p.m. on the night of the fires she watched defendant enter the station through a hole in the door left from the first fire. Immediately after he entered, the witness heard the sound of breaking glass and saw flames shoot up in the office area. Defendant then came back out and entered his automobile.

The jury heard testimony from other witnesses that supported the eyewitness and controverted defendant's version of the facts as given through the testimony of his wife. Testimony was also given as to a possible financial motive for the defendant to start the fires. We cannot say, from the evidence presented to the jury, that the evidence "is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he was convicted." State v. Booker, 709 P.2d at 345 (quoting State v. Petree, 659 P.2d 443, 444 (Utah 1983)).

We next turn to the argument that defendant was denied the effective assistance of counsel. In the recent case of State v. Archuleta, 747 P.2d 1019 (Utah 1987), the Supreme Court re-emphasized the requirements necessary to prove ineffective assistance of counsel as follows:

In order to succeed on a claim of ineffective assistance of counsel, an appellant must show

(first) that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 [104 S.Ct. 2052, 2064, 80 L.Ed.2d 674], reh'g denied, 467 U.S. 1267 [104 S.Ct. 3562, 82 L.Ed.2d 864] (1984).

Before this Court will consider whether specific conduct falls below the required standard of objective reasonableness, the person arguing ineffective assistance must show that the conduct prejudiced his case. Id. at 697 ; see also State v. Frame, 723 P.2d 401, 405 (Utah 1986). In order to prove prejudice to his case, "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694 .

747 P.2d at 1023.

Defendant raises two specific omissions which he claims are prejudicial. First is the failure of counsel to object to evidence seized in warrantless searches. No objection was raised to any of the evidence and defense counsel made use of it during cross examination of prosecution witnesses. Later the defense called an expert witness to testify that the fires were electrically caused. This expert based his analysis and conclusion on the same evidence. Had the jury chosen to believe him, the element of intentional burning could not have been proven and defendant could not have been found guilty. We find no prejudice in the failure to object to the evidence. This clearly falls within legitimate trial tactics of defense counsel. State v. Pursifell, 746 P.2d 270, (Utah App.1987); Layton City v. Noon, 736 P.2d 1035, 1040 (Utah App.1987); Codianna v. Morris, 660 P.2d 1101, 1110 (Utah 1983).

Defendant next argues that because defense counsel did not understand a rule of evidence, he was prevented from testifying in his own behalf. Defendant claims he could explain his whereabouts prior to the first fire. The focus of the prosecution, however, was on the second fire. During the trial, several witnesses testified as to movements, whereabouts and statements made by defendant. ¹ Had defendant testified he would have been subject to cross examination on all this evidence. Inconsistencies in statements would have been further developed. The jury would have been told, at the very least, that he had previously been convicted of a felony. ² It is difficult to see how the defendant's failure to testify leads to a reasonable probability that the result would have been different. Again, counsel's decision falls within the wide latitude of legitimate trial tactics.

We find no merit in defendant's arguments raised on appeal. Accordingly the judgment and sentence are affirmed.

BENCH, J., concurs.

JACKSON, Judge (dissenting):

I respectfully dissent.

On appeal, Morehouse claims he was denied his right, under the sixth amendment to the United States Constitution, to effective assistance of counsel at trial because of each of the following two instances of alleged incompetency by his retained counsel: (1) counsel kept Morehouse from testifying in his own behalf based on counsel's erroneous belief that the rules of evidence would allow the defendant to be impeached on cross-examination by the introduction of all his previous criminal convictions; and (2) counsel failed, both before and during trial, to seek exclusion of evidence seized in warrantless searches of the gas station after the night of the fires, as well as the expert opinion testimony based thereon. I do not address the second alleged error by counsel, although it adds fuel to the issue of prejudice, because the first is constitutionally dispositive.

In order to succeed in his claim, Morehouse must demonstrate that his trial counsel's specific act or omission fell below an objective standard of professional reasonableness and that the deficiencies in...