State v. Phillips

• Decision Date: 23 September 1980
• Docket Number: No. 80-048-CR,80-048-CR
• Citation: 99 Wis.2d 46,298 N.W.2d 239
• Parties: STATE of Wisconsin, Plaintiff-Respondent, v. Earl PHILLIPS, Sr., Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 239

298 N.W.2d 239

99 Wis.2d 46

STATE of Wisconsin, Plaintiff-Respondent, v. Earl PHILLIPS, Sr., Defendant-Appellant.

No. 80-048-CR.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 20, 1980.

Opinion Released Sept. 23, 1980.

Opinion Filed Sept. 23, 1980.

Review Denied.

Franklyn M. Gimbel and Gimbel, Gimbel & Reilly, of counsel, Milwaukee, for defendant-appellant.

Bronson C. La Follette, Atty. Gen., with whom on the brief was Kirbie Knutson, Asst. Atty. Gen., for plaintiff-respondent.

Before DECKER, C. J., MOSER, P. J., and CANNON, J.

CANNON, Judge.

Defendant appeals from a judgment of conviction for arson contrary to secs. 943.02(1)(a) and 939.05, Stats., and an order denying post-trial motions. We affirm.

The building destroyed was owned by Theanne Panos, and insured against fire loss under a policy issued by California Union Insurance Company. Although no proof of loss was filed, a notice of loss was filed with the insurer. A purchase money mortgage, and a second mortgage were executed on the property in favor of National Savings and Loan Association by Peter and Theanne Panos. Peter Panos died prior to the fire. The loans were not in default at any time relevant to this action, and were fully satisfied prior to trial.

Theanne Panos was a member of the board of directors of the Boy Blue stores for the midwest. Earl Phillips, Sr. (Phillips) was president of this corporation as well as building manager for the property destroyed. Phillips hired Earnest Froelich (Froelich) to do some contracting work on the property. Subsequently, Phillips allegedly contacted Froelich to perform the arson for $7,000. After the fire Froelich went to Florida where he was contacted by two detectives regarding the arson. Also, while in Florida, Froelich received $6,400 from Phillips for which a receipt was signed acknowledging payment on a remodeling contract.

Froelich entered into a plea bargaining arrangement whereby probation was to be recommended in exchange for his testimony against Phillips. At trial Phillips called several witnesses in his defense, but did not take the stand himself.

Three issues are raised for our determination:

1. Whether the trial court erred in determining that a mortgagee's interest is such that it confers a right of consent under sec. 943.02(1)(a) and (2), Stats.;

2. Whether the challenged reference to defendant made during the prosecution's closing argument was an improper comment on defendant's silence; and

3. Whether the trial court's admission of evidence that the insured building was destroyed was unduly prejudicial.

We affirm the trial court's disposition of each of these issues.

MORTGAGEE'S INTEREST

Defendant was charged with arson of a building of another contrary to sec. 943.02(1)(a), Stats., which provides:

Arson of Buildings; Damage of Property by Explosives. (1) Whoever does any of the following is guilty of a Class B felony:

(a) By means of fire, intentionally damages any building of another without his consent; ....

The "another" in this case was the mortgagee, as the owner would not complain. ¹ Section 943.02(2) defines "building of another" as:

(A) building in which a person other than the actor has a legal or equitable interest which the actor has no right to defeat or impair, even though the actor may also have a legal or equitable interest in the building. Proof that the actor recovered or attempted to recover on a policy of insurance by reason of the fire is relevant but not essential to establish his intent to defraud the insurer.

Defendant contends that the interest of a mortgagee is insufficient to constitute a legal or equitable interest within the terms of sec. 943.02(2). We do not agree that the interest stated in sec. 943.02(2) is to be so narrowly construed.

In construing a statute, the primary source is the language of the statute itself. Wisconsin's Environmental Decade, Inc. v. Public Service Commission, 81 Wis.2d 344, 350, 260 N.W.2d 712, 715 (1978). The entire section and related sections are to be considered in its construction or interpretation. Omernik v. State, 64 Wis.2d 6, 12, 218 N.W.2d 734, 738 (1974). In determining the meaning of any single phrase or word in a statute, it is necessary to look at it in light of the whole statute. State ex rel. Tilkens v. Bd. of Trustees of Firemen's Pension Fund, 253 Wis. 371, 373, 34 N.W.2d 248, 249 (1948).

Defendant maintains that because both the legal and equitable ownership interest vests in the mortgagor, no interest remains to be vested in the mortgagee. In support of this contention, defendant cites Mutual Federal Sav. & Loan Ass'n v. Wisconsin Wire Works, 58 Wis.2d 99, 205 N.W.2d 762 (1973), aff'd, 71 Wis.2d 531, 239 N.W.2d 20 (1976) wherein the court states:

In Wisconsin, a state which follows the lien theory of mortgages, the mortgagee does not have legal title. The full ownership, both equitable and legal, is in the mortgagor, and the interest of the mortgagee is that of a lien holder. The mortgagee is merely the holder of a security interest. Id. at 104, 205 N.W.2d at 765.

A close reading of this proposition discloses that the court does not hold that the mortgagee is without any interest in the property, but only that the interest is that of a lienholder rather than an owner. It is evident that a lienholder has an interest in the preservation of the real estate. We hold that the distinction urged by defendant is not sufficient to preclude the application of the arson statute.

Statutory recognition of the existence of the interest of a mortgagee in the real estate interest is found in secs. 840.01 ² and 700.01(2) and (6), Stats. ³ Section 840.01 defines an "interest in real property" as including "security interests and liens on land." Section 700.01(2) further includes a real estate mortgage as an instrument of transfer "effective to transfer an interest in property," with property defined in sec. 700.01(6) as including real or personal property.

Where a statute is capable of different construction, that which works an absurd or unreasonable result should be avoided. Braun v. Wisconsin Electric Power Co., 6 Wis.2d 262, 268, 94 N.W.2d 593, 596 (1959). Were we to construe sec. 943.02, Stats., as urged by defendant just such an absurd result would follow. Any "owner" could enter into a conspiracy to destroy a property and then relieve the co-conspirator of criminal responsibility by not filing an insurance claim and by taking the fifth amendment. We refuse to condone such a result. It is evident that the interest of the mortgagee is not one which defendant had a right to impair or defeat. Accordingly, we hold that sec. 943.02(1) is sufficiently broad to encompass a mortgagee's interest.

COMMENT ON DEFENDANT'S SILENCE

Defendant takes exception with the following statement made by the prosecutor in the rebuttal portion of his closing argument: "And in the end what does Mr. Phillips tell you about (Earnest Froelich)?" The trial court recognized that this comment, if taken out of contest, could be construed as a blatant reference to defendant's silence at trial, however, when it was considered in the context of the argument is was not prejudicial. Defendant asks us to reverse this determination of the trial court. We decline to do so.

Comments on a defendant's silence, whether direct or indirect, are highly disfavored but will not automatically require reversal. Reversal is only required where the statement is manifestly intended to be or where it is of such a type that the jury would naturally and necessarily take it to be a comment on defendant's silence or his failure to testify. United States v. Muscarella, 585 F.2d 242, 249 (7th Cir. 1978). However, where the statement when viewed within the context of the entire record, and its probable effect on the jury is harmless beyond a reasonable doubt we will not reverse. Id. at 250.

Applying this analysis to the statement made here, we hold that it does not furnish grounds for reversal. We concur in the trial court's analysis in its decision on post-trial motions:

In effect, the prosecutor is saying not that Phillips is silent as to Froelich's credibility. Rather, he is stating that the evidence as to Phillips's business acumen and business association with Froelich makes the "demented firebug" defense wholly implausible. It appears that he is arguing that the evidence should tell the jury that Phillips would not have dealt with the type of person that he is attempting to portray Mr. Froelich to be.

The trial court concluded that "it was a proper comment based upon the evidence and arguments presented by both sides to the jury, intended not to discredit Phillips but to bolster the credibility of Froelich." Where the statement introduces or provides a transition between defendant's evidence or the theory of the case, no error will be found. See United States v. Anderson, 481 F.2d 685, 701 (4th Cir.), aff'd, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1973); United States v. Reicin, 497 F.2d 563, 572 (7th Cir.), cert. denied, 419 U.S. 996, 95 S.Ct. 309, 42 L.Ed.2d 269 (1974); United States v. Rochan, 563 F.2d 1246, 1249 (5th Cir. 1977). We find no abuse of discretion in the trial court's conclusion that the comment related directly to Froelich's credibility, and only indirectly to defendant's failure to testify. Accordingly, the remark is not one which would naturally and necessarily be construed by the jury to be a comment on defendant's failure to testify.

Defendant further contends that even if it is construed in the above context, it is error as only the defendant had the information to contradict the statement. In support of this contention, defendant cites United States v. Buege, 578 F.2d 187 (7th Cir. 1978), cert. denied, 439 U.S. 871, 99 S.Ct. 203, 58 L.Ed.2d 183 (1978), which provides:

This court has previously held that when a prosecutor refers to testimony as uncontradicted where the defendant has elected not...