State v. Wilbur

• Decision Date: 18 June 1975
• Docket Number: No. 74-54-C,74-54-C
• Citation: 339 A.2d 730,115 R.I. 7
• Parties: STATE v. Raymond WILBUR et al. A.
• Court: Rhode Island Supreme Court

Page 730

339 A.2d 730

115 R.I. 7

STATE v. Raymond WILBUR et al.

No. 74-54-C.A.

Supreme Court of Rhode Island.

June 18, 1975.

[115 R.I. 18] Julius C. Michaelson, Atty. Gen., Judith Romney Wegner, Sp. Asst. Atty. Gen., for plaintiff.

Joseph A. Capineri, Pawtucket, for defendant Raymond Wilbur.

Paul J. DiMaio, Providence, for defendant Ronald J. Asselin.

OPINION

KELLEHER, Justice.

The defendants, Raymond Wilbur, Ronald J. Asselin, and James E. Rogers were tried on a joint indictment which charges them with setting fire to a cocktail lounge in downtown Providence, a violation of G.L. 1956 (1969 Reenactment) § 11-4-3. A Superior Court jury returned guilty verdicts against all three defendants. Wilbur and Asselin have taken appeals.

At about 3:30 a.m. on Wednesday, April 25, 1973, Patrolmen Zienowicz and Lopez were in their police cruiser. They had just transported a prisoner to Providence Police Headquarters at La Salle Square, and were returning to the South Providence area to resume their patrol. The officers were proceeding south along Empire Street about a block away from headquarters when they smelled smoke. As they came to Westminster Street, they looked to the east and observed a man running out of Aborn Street onto the Westminster Street Mall headed toward Snow Street. The officers turned left on Westminster Street and drove onto the mall in pursuit of the late-night jogger who was subsequently identified as Wilbur.

As the officers drove past the intersection of Aborn Street and the mall, they saw smoke and flames spouting forth from the first floor of an Aborn Street building. The officers pursued the fleeing figure and finally caught up with Wilbur as he turned off the mall onto Snow Street. This was about one block southeast of where they first caught sight of him.

As the patrolmen turned into Snow Street, they saw Wilbur trying to get into the front seat of the passenger side of a parked car that was occupied by Asselin and Rogers. Rogers was in the driver's seat and Asselin was seated in the middle next to Rogers. As Officer Zienowicz approached the automobile, he saw Asselin reach into his pocket, remove an object, and attempt to secrete it on the floor of the car. The object was seized; it was a .22 caliber blank pistol.

During a routine pat down before placing the trio into the cruiser, a cap to a gasoline cannister was found in Rogers' pocket. Both officers testified that they smelled gasoline that emanated from Wilbur's clothing. The state conceded that tests made by the experts of the Federal Bureau of Investigation on Wilbur's clothing produced no evidence that it had been impregnated with gasoline.

The officers testified that the fire had taken place at the Erin Lounge. They also told the jury that when they apprehended Wilbur, he told them that he was running away from his girlfriend. He also informed them that he did not know either of the individuals who were seated in the car he was attempting to enter on Snow Street.

A witness who testified on Wilbur's behalf told the jury that she had met Wilbur in an all-night diner at about 3 a.m. He told her that he had had a spat with his girlfriend. The witness explained how she had convinced Wilbur to call his girlfriend and 'make up.' When she and Wilbur parted at approximately 3:15 a.m., Wilbur was walking up the mall to meet his 'girlfriend.' This witness explained to the jury that Wilbur's girlfriend was going to drive in from her home in Cranston and rendezvous with Wilbur at a Westminster Street hotel that was situated just west of the intersection of Empire and Westminster Streets.

Following his arrest, Rogers gave a statement to the police in which he admitted that he had purchased the gas and brought it from the car to the Erin Lounge. The statement was admitted as a full exhibit after all references to Wilbur's and Asselin's part in the episode had been deleted from its contents.

The appeal concerns a number of evidentiary rulings made by the trial justice and his denials of motions for judgments of acquittal and a motion for a new trial which had been filed by Asselin.

The Erin Lounge was located on Aborn Street in a building owned by Central Real Estate Company, Inc., a Rhode Island corporation. The building's address was 19-29 Aborn Street. The first witness for the state was the corporation's assistant secretary and office manager. She had worked for Central Real Estate for over 30 years and had been a corporate officer for a year and a half. The witness told the jury that the corporation did indeed own the property at the Aborn Street address.

Asselin and Wilbur argue that since the indictment charged them with burning a building owned by Central Real Estate, the state was bound to prove ownership by the use of the 'best evidence' rule, to wit, the deed or a duly certified copy of the deed showing the requisite ownership. Oral assertions as to who holds title to the property, they claim, are not enough because at some subsequent date, they might be tried for burning some other building owned by Central Real Estate which does not bear the Aborn Street address.

The defendants misconceive the purpose of the best evidence rule and their double jeopardy fears are unfounded. The primary purpose of the criminal law is the preservation of the public peace. The trial in the Superior Court was not a suit where Central Real Estate was seeking to recover on its insurance policy. The defendants were being tried for an offense against the 'peace and dignity of the State,' where the injured are the citizens of Rhode Island and not merely the individual who may be the victim of the offense. State v. Gilligan, 23 R.I. 400, 50 A. 844 (1901); cf. State v. Boudreau, 113 R.I. 497, 322 A.2d 626 (1974). The only necessity for specifying ownership in the present indictment was to enable the accused to prepare an adequate defense and protect them against the threat of a second prosecution for the same offense. State v. Murphy, 107 R.I. 737, 271 A.2d 310 (1970); State v. Gilligan supra. Here the proof offered accomplished both purposes.

Proof of ownership of the Aborn Street property was a collateral issue since it was not essential to proof of either the crime charged or defendants' participation in the torching of the lounge. Consequently, the secretary's statement as to who owned the burned-out premises was sufficient to establish the identity of the premises. Wigmore has pointed out that '* * * where the terms of a document are not in actual dispute, it is inconvenient and pedantic to insist on the production of the instrument itself and to forbid all testimonial allusion, however casual, to its terms * * *.' 4 Wigmore, Evidence § 1253 at 595 (Chadbourn Rev.ed.1972). Here, there was no serious challenge that Central Real Estate did not own the Aborn Street property. We see no error in the trial justice's allowance of the proof of ownership. The premises were sufficiently identified so that defendants' rights were fully protected.

To prove that the fire at the Erin Lounge was caused by arson rather than an accident, the state produced an inspector employed by the Providence Fire Department. The inspector had arrived at the fire scene within minutes after the fire alarm was sounded. This witness described the heavy black smoke and the flames that billowed forth from the front of the building. At one point when the fire was still enveloping the rear portion of the premises, he entered the bar. He told the jury that upon entry, he smelled gasoline. He was permitted to testify that in his opinion the Aborn Street blaze was set by a person who used some petroleum based liquid such as gasoline to ignite the fire. Here, as at the trial level, defendants questioned the inspector's competency to give an opinion as to the source and cause of the conflagration.

Whether a witness is competent to testify as an expert is a matter that rests within the sound discretion of the trial justice and will be disturbed only in cases of a clear abuse of that discretion. State v. Robertson, 108 R.I. 656, 278 A.2d 842 (1971); State v. Tutalo, 99 R.I. 14, 205 A.2d 137 (1964). The requisite expertise, we have said, may have been acquired by study, observation, practice, or experience. Morgan v. Washington Trust Co., 105 R.I. 13, 249 A.2d 48 (1969). The defendants' challenge of the witness' qualifications rests primarily on the paucity of his formal classroom training and his inability to specifically describe the contents of the seminars he had attended. While the witness might be shy on schoolbook learning, he is long on the practice and experience.

At trial time he had been a member of the department for over 10 years. The first 6 months of his career were spent in the classroom where he was taught the 'chemistry of fires.' He worked 7 years 'on the front line' of fire prevention. Upon being assigned as a fire inspector, he participated in formal seminars, some of which were conducted by a fire insurance company whose headquarters are located in Rhode Island. As a novice inspector, he spent several months going out to investigate in the company of a senior officer who acted as a teacher in an endeavor which for want of a better term could be described as an on-the-job-training program. When he assumed the witness stand, the witness had been an inspector for 3 years. His division inspects about ten fires a day.

Most of defendants' contentions as to the inspector's expertise are certainly relevant only to the weight to be given his opinion and his qualifications. We see no error in giving the jury the assistance of the inspector's on-the-scene observations.

One of the exhibits is the signed confession given by Rogers. The defendants challenge the use of this document. The arguments are based upon the holdings of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and State v. Boswell, 73 R.I. 358, 56 A.2d 196 (1947). We...