State v. Stack

• Decision Date: 16 February 1982
• Citation: 441 A.2d 673
• Parties: STATE of Maine v. Richard STACK and Frederick Fothergill.
• Court: Maine Supreme Court

Page 673

441 A.2d 673

STATE of Maine v. Richard STACK and Frederick Fothergill.

Supreme Judicial Court of Maine.

Argued Sept. 8, 1981.

Decided Feb. 16, 1982.

Henry N. Berry, III, Dist. Atty., Peter G. Ballou, Deputy Dist. Atty., William Darrow, Michael McCarthy, Jonathan Chapman (orally), Law Student Interns, Portland, for plaintiff.

Dennis Levandoski (orally), Portland, for Richard Stack.

Edward Klein (orally), Donald L. Carter, Burt Kettle, Portland, for Frederick Fothergill.

Before McKUSICK, C. J., and GODFREY, NICHOLS, ROBERTS, CARTER, VIOLETTE and WATHEN, JJ.

GODFREY, Justice.

Defendants Richard Stack and Frederick Fothergill appeal from their convictions of arson, 17-A M.R.S.A. § 802(1)(A) (Supp.1981), ¹ following a jury trial in Superior Court, Cumberland County. In their consolidated appeal, the defendants argue that reversible errors were committed in the course of the trial. Defendant Fothergill argues also that the evidence was insufficient to support the jury's verdict finding him guilty of arson. We affirm the judgments of conviction.

I.

By an indictment dated December 4, 1979, Stack and Fothergill were charged with two counts of arson. The first count charged them with having caused a fire at a house owned by Carlene Fothergill, defendant's mother, on the evening of November 16, 1979. The second charged them with having caused a second fire at the same house in the early morning hours of November 17, 1979. The second count was dismissed on the prosecuting attorney's own initiative at the close of the State's case-in-chief, and the trial justice so informed the jury at the close of all evidence. ² Accordingly, the issues raised on this appeal concern only the defendants' convictions of arson for the November 16 fire.

The house where the fire occurred, a large, single-family residence in North Windham, unoccupied at the time of the fire, was heavily damaged. The State proved that the fire had been deliberately set by the ignition of gasoline in three different places in the house. The principal issue was the identity of the person or persons who had set it.

The State produced evidence tending to support the following conclusions: Carlene Fothergill and the seven other people who regularly lived in the house had made plans to be away for the weekend and were out of town on the evening of the fire. Defendant Fothergill, who lived at home only occasionally, had been asked to care for the family pets while the others were away.

A few hours before the fire started, Robert Munroe, a seventeen-year-old neighbor of the Fothergills, went up to the Fothergill house to use the telephone. Munroe found the door that was customarily used to enter the house propped shut by a chair, something that, to his knowledge, had never been done before. Once inside, Munroe found defendants Fothergill and Stack and another person, Joe Dube, in the kitchen having drinks. After completing his call, Munroe was asked by Stack to go outside with him to talk. According to Munroe, Stack told him that he (Munroe) "had screwed up everything by returning home (i.e., to North Windham), that he (Stack) was going to torch the place up tonight for insurance money, which was $80,000...." Eight days earlier, Carlene Fothergill had purchased a homeowner's insurance policy covering her house and its contents in the aggregate value of $80,000-substantially more than the property was worth. Before then Mrs. Fothergill had been without fire insurance for at least one year.

Soon after returning to his own home, Munroe saw Joe Dube driving away from the Fothergill residence, and at about 8:30 p.m. he noticed that the Fothergill house was on fire. Munroe testified that Stack later admonished him to be sure to get his story straight if the Windham police questioned him, and suggested an alternative version of the events on the evening of the 16th.

At about 9:30 p.m. on November 16, police officer Ballerd observed defendants Stack and Fothergill at the scene of the fire. At that time, Officer Ballerd overheard the defendants commenting that the fire damage was "not bad." Officer Ballerd again observed the defendants at approximately 12:30 a.m. when they reappeared at the scene. This time he overheard Stack, after looking through the kitchen window, say to Fothergill, "Who left that there?" Fothergill then looked in the window and replied, "It's mine. I guess I left it there." Upon looking in the window himself, Officer Ballerd observed a six-pack container with some empty beer bottles in and around it on the kitchen table and an antifreeze container on a bar stool directly in his line of vision. The antifreeze container was discovered to be about one-third full of gasoline. Later Ballerd heard Stack remark to Fothergill, "They should have let the ... place burn flat," and then later, "Isn't bad. No, this isn't bad."

In defense, Stack and Fothergill produced evidence tending to establish a different interpretation of the facts. Stack and Fothergill took the stand in their own defense and testified that they had left the Fothergill residence at the same time Joe Dube had left. They further testified that the item to which they had been referring when they looked in the kitchen window was a skill saw. A skill saw with a melted edge was introduced into evidence. To bolster the defendants' testimony, defense counsel elicited responses from the State's witnesses to the effect that the antifreeze container was not the only thing in the kitchen to which the defendants might have been referring. The State's witnesses testified, however, that they did not remember seeing a skill saw on the kitchen table.

Defense counsel also attempted to impeach the credibility of Robert Munroe by placing several witnesses on the stand who testified to longstanding animosity between Munroe and the Fothergills. Moreover, defendants' testimony implied that it had been Munroe, not they, who started the fire. Defense witnesses testified that Munroe had many times threatened to burn down the Fothergills' house-a fact Munroe denied-and that Munroe often talked about setting fire to buildings.

II.

Defendants contend that the trial justice erred in admitting Officer Ballerd's testimony about what he overheard them say outside the kitchen window of the burned house on the night of the fire. First, they argue that the testimony was irrelevant under Rule 401, M.R.Evid., since, in the absence of any direct evidence to show what they were referring to, their bald statements did not prove anything.

M.R.Evid. 401 defines relevant evidence as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." This Court has held that evidence having any rational tendency to prove or disprove a factual issue is relevant, whether the evidence is immediate and direct or indirect and circumstantial. State v. Doughty, Me., 399 A.2d 1319, 1322 (1979).

In this case, the testimony of Officer Ballerd as to what he heard the defendants say outside the kitchen window and what he saw in the kitchen is probative on the issue of whether defendants left the gasoline-filled antifreeze container in the kitchen. If they left the container in the kitchen, that fact was circumstantial evidence of participation in the setting of the fire. As the Court stated in State v. Gagnon, Me., 383 A.2d 25, 30 (1978): "All facts which tend to establish a chain of circumstantial evidence with respect to the act charged are relevant and admissible in evidence, unless excludable under some rule or principle of law." Whether defendants were referring to the antifreeze container rather than a skill saw was for the trier of fact to determine. Whatever ambiguity there was in the testimony went to weight and credibility, not relevancy. Cf. State v. Warren, Me., 312 A.2d 535, 544 (1973) (remoteness). The trial justice did not err in refusing to exclude the evidence as irrelevant.

Second, defendants claim that even if the testimony was relevant, it should have been excluded because they were substantially prejudiced by its inherent ambiguity and speculative nature. M.R.Evid. 403 permits the trial justice to exercise his discretion and exclude evidence even though it is relevant, if its unfairly prejudicial effect substantially outweighs its probative value. See, e.g., State v. Poland, Me., 426 A.2d 896, 898 (1981). "The prejudice to which Rule 403 refers is 'unfair prejudice' and not the prejudice inherent in having evidence received that is adverse to one's position." State v. Lagasse, Me., 410 A.2d 537, 541 (1980). See also State v. Dunton, Me., 396 A.2d 1001, 1002 (1979). Here, again, the trial justice has considerable discretion in excluding or admitting evidence, and his decision will be overturned only for a clear abuse of discretion. State v. Kotsimpulos, Me., 411 A.2d 79, 81 (1980); State v. Hurd, Me., 360 A.2d 525 (1976).

Nothing in the record would justify our finding an abuse of discretion in admitting Officer Ballerd's testimony. It is true that the evidence permitted the jury to infer that the defendants were referring to the antifreeze container despite their testimony to the contrary. However, the trier of fact must often choose among different possible inferences; the mere fact that an inference contrary to a defendant's contentions can be drawn from the testimony does not suffice to render the testimony unfairly prejudicial. State v. Dunton, Me., 396 A.2d 1001 (1979).

III.

As part of their defense, the defendants testified that they were referring to a skill saw when Officer Ballerd overheard them outside the kitchen window on the night of the fire. To bolster their testimony they sought to introduce certain photographs into evidence in order to illustrate what they might have seen through the kitchen window and to show the relationship of the kitchen table to the...