State v. Vuley, 2011-087
| Decision Date | 08 February 2013 |
| Docket Number | No. 2011-087,2011-087 |
| Court | Vermont Supreme Court |
| Parties | State of Vermont v. Mark Vuley |
NOTICE: This opinion is subject to motions for reargument under V.R.A.P. 40 as well as formal revision before publication in the Vermont Reports. Readers are requested to notify the Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by mail at: Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any errors in order that corrections may be made before this opinion goes to press.
Supreme Court On Appeal from Superior Court, Chittenden Unit, Criminal Division March Term, 2012
Thomas Donovan, Jr., Chittenden County State's Attorney, and Pamela Hall Johnson, Deputy State's Attorney, Burlington, for Plaintiff-Appellee.
Mathew F. Valerio, Defender General, and Marshall Pahl, Appellate Attorney, Montpelier, for Defendant-Appellant.
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. What are the chances? This case poses the question of when that familiar rhetorical question is also a valid legal inference. Defendant was convicted of two counts of arson after four unexplained fires occurred at his rented house within an eight-week period. The trial court itself relied upon—and instructed the jury that it might rely upon—the fact that rare events like fires do not normally happen together in order to infer that defendant willfully started the fires. Although we agree that there are potentially valid inferences to be drawn from the multiplicity of fires, we cannot approve the trial court's instruction. However, we affirm because the error does not rise to the level of plain error.
¶ 2. In late 2008 and early 2009, defendant and his family rented a single-family home with a detached two-car garage in Colchester. Between November 28, 2008, and January 18, 2009, the Malletts Bay Fire Department, as well as the Colchester Police Department, responded to four separate fires at that residence. These fires represented four of the ten fires to which the Malletts Bay Fire Department responded in all of 2008 and 2009.
¶ 3. At around 1:00 p.m. on November 28, 2008, flames engulfed the detached garage at defendant's residence. By the time the fire department arrived, the fire had broken through the roof and was blowing out of the top of the structure. The fire destroyed the garage, but the fire department was able to contain it and keep it from spreading further. A neighbor testified that before the firefighters arrived defendant was unsuccessfully attempting to put the fire out with a small kitchen fire extinguisher. Responding officials described defendant as pacing, very upset, and near tears. He stated that he had no idea how the fire had started—one of the officials testified that he explained: "I was spending the day watching Kiss videos and getting loaded." Sure enough, firefighters made note of Kiss videos playing on the television, and a preliminary breath test of defendant revealed a blood-alcohol content (BAC) of .288. An area resident testified that, as he was watching the fire, defendant—visibly intoxicated—approached him and said, "Good fire, huh?" and "So I did a good job, then, right?" Ultimately, the cause of the fire was considered "undetermined," which was explained at trial to mean that authorities were "unable to find a definitive reason why that fire started," because of the fire's extensive destruction of any physical clues. Authorities investigated the possibility that the fire might have been caused by burning leaves in the backyard, by faulty electrical wiring in a garage light, or by an older refrigerator located in the garage, but no physical evidence was present to confirm a particular theory.
¶ 4. Approximately one month later, at roughly 6 p.m. on Christmas Day, the fire department responded to a fire in a clothes dryer in the basement of defendant's residence. The dryer was an older model and was heavily loaded at the time of the fire. Defendant's wife testified that she had started a large load of items in the dryer, including kitchen towels that defendant regularly used to clean out the deep fryer. At trial, the fire chief testified that dryers can and do catch fire, but that inspection of this dryer did not reveal any of the common malfunctions. Vegetable oils were found on some of the clothes, but no accelerants or other materials were present to suggest that the fire was deliberately set. Investigating officers said defendant told them that he was the only one home at the time, that he was doing laundry, and that he noticed smoke while he was watching television. The fire chief noted signs of intoxication in defendant's behavior, and defendant submitted to a preliminary breath test, which produced a BAC of .210. Once again, the cause of the fire was considered undetermined.
¶ 5. A little over one week later, at approximately 4 a.m. on January 5, 2009, a neighbor reported a fire on the enclosed porch of defendant's residence. A Colchester police officer arrived at the scene before the fire department, and he was able to contain the fire with the fire extinguisher from his cruiser until the fire department arrived and fully extinguished it. The fire occurred in some odds and ends of pressure-treated lumber that were stacked on the porch, which was undergoing some renovation. At trial, the police officer testified that defendant's family members were the only people in the house when he arrived, and a firefighter circled the house and found no footprints in the snow. The responding officer testified that defendant stated that he had smoked a cigarette on the porch around midnight and had seen nothing wrong. Empties showed that defendant had consumed nine 24-ounce cans of beer that night. Because of the prior fires, the state police fire investigator was called to the scene, and he ultimately concluded that the fire was "intentionally set." This conclusion was not based on physical evidence of the cause of the fire but rather on the fact that "there were no other viable ignition sources in the area to explain how the fire started." The investigator did consider the possibility that a cigarette might have caused the fire, having found cigarette butts on the porch and knowing that defendant and his wife were smokers. In fact, defendant's wife testified that defendant smokes roughly a pack a day, that she smokes five to ten cigarettes a day, and that both of them generally used the porch as the area for smoking. Nevertheless, the investigator ruled out that cause based on defendant's strong assertion that he had not dropped a cigarette on the porch that day. At trial, a defense expert disagreed with the decision not to classify the cause of the fire as "undetermined," noting that there were easily ignitable materials and that "we have a man who drinks a lot, smokes all over the place."
¶ 6. Finally, just after midnight in the early morning of January 18, 2009, the fire department responded to another fire at defendant's residence. By the time they arrived, the firefighters found the south side of the house fully engulfed in flames. The fire department was unable to prevent the fire from completely destroying the residence and all of its contents. Defendant, who had been home alone, had apparently been forced to break a window to escape the fire, and he had cut his hands on the glass, requiring medical attention. The only footprints found around the house were those of defendant evacuating. A police officer at the scene spoke to defendant and noticed strong signs of intoxication. Defendant told the officer that he had consumed "ten or so beers," at which point the officer took defendant into protective custody, where a preliminary breath test indicated a BAC of .155. At trial, a state police fire investigator testified that the fire started on the porch, just outside the kitchen. The investigator was able to rule out several possible causes for the fire, including electrical faults and environmental ignition, and he was able to determine that "it came down to human involvement somehow." He explained that "something had to be either placed there or started there to make this fire go," but he could not say whether it was intentional or not. Specifically, he noted that it was possible for a cigarette to have started the fire. The defense expert stated that the cause of the fire should be classified as "undetermined," largely because it was not possible to rule out careless smoking as the cause of the fire.
¶ 7. The State charged defendant with four counts of first-degree arson, alleging that he "willfully and maliciously . . . caused to be burned [a] dwelling house . . . or other outhouse that is parcel thereof . . . in violation of 13 V.S.A. § 502." Initially, the State also charged him with four counts of setting a fire to defraud an insurer in violation of 13 V.S.A. § 506. However, although the family had renters' insurance that paid out on the first and fourth fires, defendant's wife insisted that defendant was unaware of the policy because she handled matters of that nature. In response, prior to trial, the State dropped the four counts of setting a fire to defraud an insurer. Also prior to trial, the defense moved to dismiss all the charges for lack of a prima facie case, see V.R.Cr.P. 12(d), and alternatively to sever all the charges for separate trials. The court denied these motions as untimely filed.
¶ 8. At trial, the defense moved to dismiss all counts at the close of the State's case. Defense counsel argued that, with regard to each count, the State had failed to provide sufficient evidence to prove that the fire was intentionally set and that intent could not be inferred from the other fires. In response, the State argued that the frequency of the fires—four in eight weeks—showed that the fires were not accidental. After pressing the State, to no avail, for some legal authority to support its desired inference, the judge...
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