Petition for Writ of Certiorari — Gray v. Connecticut

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Bupreme Court, US,

FILED

9.9- DY 5Q | a6 -

DFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1992

JASON GRAY

Petitioner

”

STATE OF CONNECTICUT

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF CONNECTICUT

PETITION FOR WRIT OF CERTIORARI

Davip M. REILLY PETER B. REILLY

REILLY & REILLY. PC. Reitty & REILLY, PC.

129 Church Street 129 Church Street

P.O. Box 1533 P.O. Box 1533

New Haven, CT 06506 New Haven, CT 06506

(203) 777-3990 (203) 777-3990

Counsel for Petitioner Counsel of Record

for Petitioner

Brescia’s Printing Services, Inc

66 Connecticut Boulevard

East Hartford, CT 06108

528-4254

QUESTIONS PRESENTED

Petitioner convicted of arson, Ist degree, sentenced to

serve 6 of 15 years in prison. The prosecution's case relied

upon opinion that a low burn char pattern indicated use of

accelerant, that debris sample tested nine months after fire

showed identity with xylene content of "Siloo", proof that

Petitioner had last known access und proof offered to show

conduct claimed to exhibit consciousness of guilt.

Issues:

Was the conviction of the Petitioner so devoid of sufficient

evidence that Petitioner's rights to due process of law were

violated where the evidence offered to support each conclu-

sion claimed proven by the prosecution was conditional and

dependent upon fulfillment of conditions of fact not proven;

particularly where each proof allowed was prejudicial with-

out instructions to the jury barring bootstrapping of proofs;

where otherwise there was no evidence of arson, nor exclu-

sive Opportunity, nor evidence of motive, nor evidence rebut-

ting proof offered by defendant that the time span from

Petitioner's last access to discovery of fire was too long a pe-

riod to have been consistent with the prosecution's theory of

the case? and;

Were Petitioner's rights under the Fifth Amendment to the

Constitution not to testify impaired by allowance of prejudi-

cial conditional evidence which appeared to switch the bur-

den of proof to Petitioner to disprove the condition in the

absence of proof of the condition, violating a presumption of

innocence?

PARTIES TO PROCEEDING

Petitioner. Jason Gray

106 Mill Road

North Haven, Connecticut

Respondent: State of Connecticut

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED

PARTIES TO PROCEEDINGS li

TABLE OF CONTENTS ill

TABLE OF AUTHORITIES IV

CITATION OF JUDGMENTS BELOW vi

JURISDICTIONAL STATEMENT Vil

CONSTITUTIONAL PROVISIONS Vill

CONCISE STATEMENT OF CASE l

ARGUMENT 17

CONCLUSION 29

APPENDIX 1A

ill

TABLE OF AUTHORITIES

Bram v. United States, (1897) 168 U.S. 532,

8S Ct 193, 42 L. Ed. 568,

Dunham v. Dunham, 204 Conn. 303, 324,

528 A.2d 1123,

Fifth and Fourteenth Amendments,

Francis v Franklin, 471 US 304, at 313,

105 S. Ct 1965, 85 L. Ed 344, 3523,

FRE Rule 104(b),

In re Winship, 397 U.S. 358, 364,

90 S Ct 1068, 25 L Ed. 2d 368,

Malvicini v. Stratfield Motor Hotel, Inc.

206 Conn. 439, 538 A.2d 690,

New Hope v. Duplessie (1975),

324 Minn. 417, 231 NW2d 548,

Novak v. Anderson, 178 Conn. 506,

507-8, 423 A.2d 147

People v. Hodson (1950), 406 Ill. 328,

94 N.E.2d 166,

Sandstrom v Montana, supra, at 520-524,

61 L Ed. 2d 281, 97 S Ct 2319 (1977),

Schneble v. Florida, 405 U.S. 427, 432,

92 S Ct 1056, 31 L Ed. 2d 340, 345,

State v. Fritz, 204 Conn. 156 at 167,

527 A.2d 1157, (1987),

State v. Jackson, 176 Conn. 257,

264, 407 A.2d 948 (1978),

State v. Mayell, 163 Conn. 419,

311 A.2d 60,

oe me

17,22,23

25,28,29

18,19

19,21

State v. Osman, 218 Conn. 432, 437,

_A.2d__ (1991), 21

State v. Rose, 169 Conn. 683, 687,

363 A.2d 1077. 25

State v. Villano, 176 Conn. 301, 303,

407 A.2d 969, 14,19

Toomey v Danaher 161 Conn. 204, 211,

286 A.2d 293., 14,19,20

Turner v United States, 396 U.S. 398, 424,

90 S Ct 642, 24 L Ed. 2d 610, 627. (1970), 25

United States ex rel Smith v. Braerly,

(1967 CA3 Pa); 384 F.2d 992, 24

United States v. Stipe, (1981, CA10 Okla)

653 F.2d 446, 8 Fed Rules Evid. Serv. 668., 25

Annotation; 31 L. Ed 2d 930 23

Annotation; 28 USCS Appendix 34 19

CITATION OF JUDGMENTS BELOW

1. Decision of Supreme Court of Connecticut, State v. Gray,

221 Conn. 713, A.2d . April 21, 1992, Appendix p.

3A.

2. Decision on motion for rehearing, dated May 21, 1992,

Appendix p. A27.

JURISDICTIONAL STATEMENT

Grounds: Petitioner claims his right to due process of law

under Fifth and Fourteenth Amendments of the United States

Constitution were violated by conviction in criminal pro-

ceedings by verdict totally devoid of evidential support, by

use of wholly incompetent evidence, and by use of uncon-

stitutional burden of proof switching device.

Date of Judgment sought to be reviewed: April 21, 1992.

Date of order respecting a rehearing: May 21, 1992.

Statutory provision believed to confer jurisdiction: 28 U.S.C.

1257(a).

Vii

CONSTITUTIONAL PROVISIONS INVOLVED

Amendments to the Constitution of the United States.

ARTICLE V

"No person shall be held to answer for a capital, or otherwise

infamous crime, unless on a presentment or indictment of a

Grand Jury, exvept im cases ansing in the land or naval

forces, or in the Militia, when in actual service in time of

War or public danger; nor shall any person be subject for the

same offense to be twice put in jeopardy of life and limb; nor

shall be compelled in any criminal case to be a witness

against himself, nor be deprived of life, liberty, or property,

without due process of law, nor shall private property be tak-

en for public use, without just compensation.

ARTICLE XIV

"Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside. No

State shall make or enforce an law which shall abridge the

privileges or immunities of citizens of the United States nor

shall any State deprive any person of life, liberty or property,

without due process of law, nor deny to any person within its

jurisdiction the equal protection of the laws."

Vill

CONCISE STATEMENT OF CASE

PART 1.

Proceedings Below.

At the conclusion of the evidence, and after moving to

strike the testimony of witnesses McKeon and Hubbell, Peti-

tioner filed Requests to Charge and made oral motion to the

trial court for acquittal and in motion for acquittal raised the

issues of due process of law under the Fifth and Fourteenth

Amendments to the Constitution of the United States in sup-

port of claim that the case should not go to the jury due to the

failure of proof. Excerpt from oral motion is printed in the

Appendix at A30. The motion was denied without comment

as to the claimed Fifth and Fourteenth Amendment rights.

Motions to the trial court for acquittal, to strike testimony of

McKeon and Hubbell, and for directed verdict appear in the

record below at pp. 16, 36, 38, 52, 59 of Appellant's Appen-

dix.

By oral motion May 15, 1990, and written brief filed with

the trial court dated July 23, 1990 the Petitioner raised the

claims under the Fifth and Fourteenth Amendments as set

forth in the Appendix hereto at pages A30 and A34 for the

claim there was no evidence to convict and for the claim that

burden of proof switching devices were being employed to

deprive the Petitioner of Due Process of law and by devices

to draw inferences from failure to testify. On July 27, 1990

oral argument on Motion for Judgment of Acquittal was per-

mitted, which reclaimed Petitioner's right's under the Fifth

and Fourteenth Amendments, [transcript 29-47] was denied

without substantive comment and without comment on Fifth

and Fourteenth Amendment claims.

By written brief filed in the Supreme Court of Connecticut,

Petitioner asserted substantially similar claims, invoking the

Fifth and Fourteenth Amendment claims that the evidence

did not present a case that should be permitted to go to the

jury, and that unconstitutional evidential burden-of-proof-

shifting devices were used. The Supreme Court of Connecti-

cei

cut expressly passed upon and deniea the claims of the Peti-

tioner, by Footnote 3 printed herein, and by statement there

was absence of inerit to Petitioner's claims, which the court

denied by reference to Petitioner's other claims. Footnote 3

appears at 221 Conn, 726. The denial of Fifth and Four-

teenth Amendment claims appears in a seven line Part IV of

the opinion at p. 730.

The Connecticut Supreme Court has decided an important

question of federal law which has not been and should be

settled by this Court. It decided that a conviction supported

only by proofs of conditionally relevant evidence may be

upheld without proof of the facts upon which the offer of

conditionally relevant evidence was predicated, in the face of

claims that the record was devoid of evidence necessary to

convict under the Fifth and Fourteenth Amendments to the

United States Constitution. It further permitted the prosecu-

tion to rest without proof of conditions, under circumstance

which would necessarily switch the burden of proof to the

defendant in a criminal proceeding in violation of the Fifth

Amendment.

PART 2

The case presented by the prosecution:

The prosecution made argument to the jury at trial that Pe- |

titioner, an employee of an automobile sales agency, com-

mitted arson to his employer's garage by pouring 12 to 15

ounces of "Siloo" diesel fuel anti-gel on the second floor of

the parts department, then setting fire. This argument was

based upon circumstances described herein, without proof of

motive.

The state presented evidence that the Petitioner reported to

senior employee Hugins that Petitioner detected an odor on

the second floor, that Hugins inspected and detected only an

"exhaust" smell. Petitioner then returned to the second floor

and brought oil filters from the second floor to the first floor

counter at about 8:15 a.m., July 7, 1989, and proceeded to

stack the filters under the sales counter in the presence of a

senior employee, Calvin Hugins, and co-employee, Marianne

McKeon, for a period of 29 minutes when smoke descended

down the stairwell at 8:44 a.m. to the first floor giving notice

of fire which was thereupon reported to the fire department

which responded in approximately | 1/2 minutes. It took 45

minutes to get the fire under control. Petitioner was the last

person known to have descended from the second floor. The

State also offered evidence Petitioner had stated to co-

employees McKeon and Hugins the day preceding the fire

that he had smelled a chemical like smell on the second floor,

and offered evidence that Petitioner did not usually undertake

to volunteer to do work. Also, that when the smoke was dis-

covered, the Petitioner ran to the area of his desk, to retrieve

the keys to his truck.

The local fire marshal, Robert Westervelt, a witness for the

prosecution testified that when accelerants are used to start

fires a low burn pattern is created, that he found a low burn

pattern, and he concluded that the cause of the fire was use of

an accelerant. During investigation, the fire marshal took

photographs of the fire in progress. (Exhibits C-I) After the

fire, the fire marshal took photographs of the area where he

concluded the fire originated, before and after the burned de-

bris was shoveled into a dumpster. A charred section of

floor was photographed after debris removal, and described

by the fire marshal as the area he believed was the burn

caused by accelerant. After the floor was washed with water,

perhaps before, he took 6 samples which were placed in met-

al paint cans and he also took 3 other items to the state's fo-

rensic laboratory for testing. The State Laboratory refused

all but five samples for testing. The fire marshal also went to

the storage area on the first floor of the parts department and

selected eight items (sprays, oil, anti-gels, and carburetor

cleaners) for comparison testing, five of which were accepted

by the State Laboratory. During his testimony, presented by

the State prior to any evidence of laboratory testing, the fire

marshal testified that no facts not already in evidence were

relied upon by him in the formation of his opinion. His con-

clusions as to the cause of the fire were exclusively based

upon what he saw at the scene of the fire. At the end of his

testimony, Exhibit T was still only an éxhibit for identifica-

tion.

Later, at trial, after the fire marshal concluded testimony,

the Chemist, witness Jack Hubbell, from the state laboratory

testified that the contents of can #3, now Exhibit T, matched

the contents of a can of "Siloo” after gas chromotography

and mass spectrometry.

The last witness called by the State, Marianne McKeon,

testified that about two hours after the fire, the Petitioner

stated to her that "They think I did it". Motions to strike this

testimony made immediately and again before verdict were

denied. There was no prior proof that the prosecution gave

notice of intent to present this evidence. Prior witnesses

were not asked to testify concerning conversations with Peti-

tioner after the fire and before tii's statement.

The state claimed that the aforesaid conduct on the part of

the Petitioner exhibited consciousness of guilt, that the fire

marshal's conclusion based upon the burn pattern was suffi-

cient to prove arson, that the findings of the state laboratory

was corroborating evidence, that Petitioner had last known

access, that he exhibited consciousness of guilt.

The jury requested a reading of the testimony of Marianne

McKeon and shortly after rendered verdict of guilty.

PART 3.

Deficiencies in the prosecution's case.

The record presented was wholly devoid of evidence suffi-

cient to convict because each and every proof submitted by

the state did not exclude the reasonable possibility and likeli-

hood that the Petitioner was innocent.

The First Proof:

1). The prosecution's first proof was that a low burn pat-

tern was found, that when accelerants are used a low burn

pattern will appear. The proof was conditioned upon the

proof of non-existence of other conditions which were com-

petent producing causes of low burn patterns which mimic

the pattern of accelerant use. The factual condition was not

proven. The proof was further conditioned upon the non-

existence of conditions which were independent causes for

ignition of fire. Proof of both conditions were lacking and

actually disproven by testimony of prosecution witnesses.

a. The reasonable possibility that the burn pattern

was not caused by accelerant was established by the

State's own evidence.

The evidence that a burn pattern can be caused by a liquid

accelerant is conditionally relevant, and the condition re-

quires proof that no other cause of burn pattern existed, or

that conditions were present vhich were inconsistent with

other causes.

Through the fire marshal, evidence was adduced that other

competent producing causes of burn pattern existed and all

were present at this location, that such burn patterns will

mimic the pattern caused by accelerants, and that under such

circumstances, a burn pattern by itself is not proof of acceler-

ant use. The fire marshal recognized author John D. De-

Haan, as a highly qualified authority in arson detection, and

through his testimony a published DeHaan article entitled

“Are Localized Burns Proof of Flammable Liquid Acceler-

ants” was qualified as authoritative and admitted into evi-

dence, printed in record below, Appellant's Appendix p.3.

The fire marshal's testimony as to his agreement with the De-

Haan Article appear in the Appendix hereto. A40 This testi-

mony, together with the DeHaan article with its illustrations

of radiant heat from hot gasses causing floor fire, proved the

existence of recognized co-causes of low burn patterns that

mimic use of accelerant, i.e.:

i. High levels of radiant heat can be generated by hot

gasses which will quickly raise the temperature of the surface

of wooden floors and cause charring, pyrolysis and ultimate-

ly combustion of floors, thus a cause of low burn pattern.

li. The effect of radiant heat is increased in commercial

structures where shelves and combustible stock and large fire

combine and will produce what appears to be very carefully

laid path in the aisle which can be mistaken for a trailer of

flammable fluid, thus a cause of low burn pattern.

ill. The burning of solids, such as cardboard cartons

filled with paper records and burning material falling from

rafters will each create appearances of floor area deep burns,

localized around the margins of the solid fuel burning on the

floor, thus a cause of low burn pattern.

Also, through the testimony of the fire marshal and other

witnesses called by the state, it was proven that the condi-

tions necessary to create a burn pattern as described in the

DeHaan article existed at the scene, in that:

l. Sources of high levels of radiant heat existed. The

fire at ceiling height melted or burned out the light bulb,

light bulb base, and the metal receptacle from inside the ce-

ramic fixture located nearest to the first broken window and

"burn pattern". The roof over the second floor was concrete,

which would not burn through, a fact which would cause

heat within the room to be retained as the solid roof would

not allow heat to escape. The fire could not be brought un-

der control until the concrete was sawed through to allow

ventilation. Photographs taken during the fire showed the

firemen were obliged to break windows to allow heat to es-

cape, this also allowed fresh air to directly enter the second

floor area where the burn pattern was subsequently observed,

allowing fresh air to entrain, ignite and fan the fire in the

area of the subsequently discovered burn pattern, at low lev-

els, and to thereafter produce hot flames and black smoke

which exited from the high areas of the window. These pho-

tographs showed that subsequent to the breaking of the win-

dow, ignition occurred in the area where the burn pattern was

later found, and fire gradually and forcefully erupted with

flames first kindling down low and later roaring through the

broken window, all adjacent to the "burn pattern" area.

2. The burn pattern area was also surrounded by

wooden shelving which extended to the concrete ceiling, and

the shelving held combustible cardboard and plastic wrapped

packages, which at higher levels held long packages which

extended out over the aisles. The concrete ceiling was sup-

ported by steel rafters, which were used to store combustible

automobile floor mats, containing plastic and rubber.

3. Solid fuels were present adjacent to the burn pat-

tern area. The area near where the burn pattern was photo-

graphed was then used for storing rubber tires, cardboard

cartons filled with old paper records, along with other clutter,

and yet was passable on foot, leaving open space for forma-

tion of burn pattern area during the fire.

4. Dropdown melted plastic appeared in the burn pat-

tern area. The fire marshal had not accurately mapped out

the location of the overhead rafters, nor the exact position of

the overhead light fixtures. The exact position of boxes on

the floor which would have affected the location of the burn

pattern were not mapped with respect to the burn pattern's

shape before being shoveled to the dumpster. The positions

of boxes on the floor could not be ruled out as causes of the

shape of burn pattern. Proof of dropdown in the area where

papers were stored and solid fuels existed showed the exis-

tence of conditions which were reasonably competent pro-

ducing causes of low burn pattern, thus, the reasonable

possibility that low burn patterns were not caused by acceler-

ant.

3 The juxtaposition of cardboard cartons and other

solid fuels with vertical sides ignited during the fire would

produce radiant heat which would be exchanged with radiant

heat from the floor producing a deeper burn at the perimeter

of the burn pattern. Location of the cardboard cartons had

been swept out by the firemen without recording positions of

boxes.

6. The fire marshal extracted samples of wood and

other material from the direct area where he photographed

the burn pattern. The floor in this area did not produce any

sample which tested positive for an accelerant. The fire mar-

shal did not know if there was a subflooring. There were

seams between the floor boards, at which the fire marshal did

not extract sample for testing in his search for liquid acceler-

ants according to recommended forensic procedure. Absence

of positive test for accelerants in the burn pattern shows the

reasonable possibility that no accelerant created the burn pat-

tern.

7 The area of the burn pattern had previously been

utilized by former employees for spray painting automobile

rear view mirrors. Two burned-out aerosol paint cans were

located in the debris. The amount of their contents before

the fire was unknown, and their presence, as a source of liq-

uid fuel, is not prover.

8. No proof was presented by the prosecution to es-

tablish any fact that burn pattern found could not have been

produced by the aforesaid conditions with respect to this par-

ticular fire.

b. The fire marshal did not have sufficient knowl-

edge to reach the conclusions that he testified to on his

direct examination, to wit:

On cross-examination of the fire marshal, it was developed

that he did not believe at the time of his direct testimony that

hot gasses could produce radiant heat; he did not believe ra-

diant heat could travel downward. Appendix A38-A40.

These misconceptions as to basic essential knowledge were

later conceded by the fire marshal to be erroneous after he

was confronted with the DeHaan article. It also developed

that he did not believe that the heat reached at floor level ex-

ceeded 200° F. Yet, the first fireman to reach the top of the

stairs had testified the fire was the hottest ever experienced,

at the end of the second floor, opposite from the "origin"

area, temperatures were in excess of 400° F. It was also

shown that the fire at ceiling height melted or burned out the

light bulb, light bulb base, and the metal receptacle from in-

side the ceramic fixture.

Cc. The was no proof that indigenous producing

causes of ignition were absent at the fire.

The contrary proposition was proven from the fire mar-

shal's own testimony. While the fire marshal purported to

say he ruled out all other causes of fire on direct examina-

tion, on cross-examination he admitted that along the ceiling

of each aisle was a row of incandescent light bulbs, un-

guarded by any cage sufficient to prevent contact with pack-

ages projecting from the higher shelves. The fire marshal

described naked incandescent light bulbs to be a fire hazard.

Long packages were stored on the higher shelves. Rafters

were used for storage. A combustible accidentally pushed

into contact with a light bulb could cause pyrolysis, charring

of package, and subsequent ignition of cardboard or plastic.

Subsequent to the fire, any evidence of such mishap is con-

sumed by the fire and is gone. The possibility of such igni-

tion was not ruled out by competent evidence. Defendant's

evidence showed that the Ekblade Oldsmobile had been cited

for poor housekeeping in its parts department by its insur-

ance carrier.

The fire marshal stated he had ruled out electrical causes of

the fire. The fire marshal had not qualified as an expert in

electrical matters. Photographs he took showed electrical

wiring running from a plug to the second floor which had not

been inspected nor detected by the fire marshal. Petitioner's

evidence was that the town electrical inspector appeared at

the fire and was sent away by the fire marshal. The reason-

able possibility that electrical causes might have existed re-

quired the testimony and inspection by the electrical

inspector or his equal.

The fire marshal had not made any measurements nor

mapped out the locations of boxes found partially burned

with respect to the perimeter of the burn pattern area at any

time during his investigation. Proof that the location of such

combustible solid fuels did not co-relate to the size and shape

and cause of the burn pattern had not been preserved.

The Second Proof:

2). | The prosecution's second proof was that a can contain-

ing charred debris was tested by gas chromotography and

mass spectrometry nine months after the fire and that con-

tents matched a product containing the petroleum hydrocar-

bon xylene sold by the automotive garage operated by

Petitioner's employer and stored for retail sale on the first

floor of the parts department: "Siloo" diesel anti-gel.

The proof was conditioned upon proof that:

a) the contents of the can when tested were the iden-

tical uncontaminated contents placed into the can by the fire

marshal at the time of the inspection and that they came from

the area where the low burn pattern appeared.

™ Te

b) the place from which this particular sample of de-

bris was taken was not exposed to xylene contamination by

normal operation of the garage resulting from storage of

xylene-cleaned used automobile parts.

) that the conditions of the simultaneous nine month

storage of the tested debris and tested sample did not permit

contamination of the tested debris from the tested sample, or

proof the xylene found had not been contaminated by the

state's own sample.

None of the foregoing conditions were proven.

No evidence was presented that any empty "Siloo" can was

found in the debris after the fire, or elsewhere.

The state was required to prove not only what was in can

#3, Exhibit T, when it was tested, but that what was in the

can could not have come from a source other than the alleged

tossing of "Siloo" .

The forensic laboratory performed two sets of tests. The

first tests were done in July, 1989, with reports typed Sep-

tember 5, 1989. (Printed in record below, Appellant's Ap-

pendix p.8) Debris samples tested in the July of 1989 were

taken directly from the area of the burn pattern found in the

plywood floor. These tests were negative and confirmed that

the fire was not arson. The Petitioner was nevertheless ar-

rested before the written report could be submitted with ap-

plication for warrant. At trial, test performed and reported

on as of September 5, showed all burn pattern debris and

floor samples were tested negative for accelerant, and no

claim was made to the jury to the contrary by the state.

After jury selection commenced, on April 24, 1990, coun-

sel for the Petitioner met with prosecution. Immediately

thereafter, the state requested new tests upon a new and dif-

ferent gas chromotography process: mass spectrometry. A

previously untested can, can #3, later Exhibit T was then sent

to the state laboratory for testing. (Appellant's Appendix

p.13) Also, the "Siloo" can, previously tested for comparison

in July, 1989 was again sent to the laboratory to again be re-

opened and tested. It was on this test, nine months post fire,

that the state laboratory Chemist stated he found a match be-

tween Exhibit T and "Siloo". Meanwhile, the corrosive ma-

terials in can #3, Exhibit T rusting for nine months had

destroyed the integrity of the can. When the fire marshall

departed the witness stand, Exhibit T had not yet been

marked as a full exhibit. The expectation w2s that the fire

marshal would be recalled to provide specific, substantively

necessary testimony as to the source, care and custody of its

contents while in his possession. Such testimony was essen-

tial to the contamination issue, and further, if he claimed said

sample came from the specific burn pattern area, he should

have been asked. When presented at trial the can showed

disintegration of the walls of the can with open holes clearly

caused by rust alone. The can's condition was photographed

immediately after verdict, May 16, 1990, (Exhibits la, 1b,

Ic, and le.) along with the condition of the "Siloo" can,

which showed the residuary deposits about its top from long

term leakage after the seal was first broken. Exhibit 1d, Ex-

hibits filed July 27, 1990. The laboratory Chemist said that

when he tapped can #3 with a shoemaker's awl, the sides of

the can fell off leaving the holes along the sides of the can.

Again the state laboratory reopened the "Siloo" can and again

sampled its contents.

The state was obliged to offer proof that the "Siloo" car

had not pre-contaminated can #3, Exhibit T, before testing,

and subsequent to the fire, either directly by leakage of liquid

contents, or indirectly, as by evaporation and by the process

of adsorption, a scientific phenomena attributable to the abil-

ity of charcoal to adsorb gasses from the atmosphere.

At the conclusion of the evidence, Petitioner's motion to

strike the evidence of the State Laboratory Chemist for lack

of foundation and failure to recall the fire marshall was de-

nied. The oral motion appeared in the appendix to the appeal

below. Appellant's Appendix p.36.

After verdict, before sentencing, the Petitioner had pro-

duced two expert witnesses to the trial judge for the purpose

of demonstrating the need on the part of the state to have

originally produced evidence that no contamination of the

sample was possible as a precondition to the relevance of the

state laboratory chemist's testimony, and the realities of the

possibility of contamination. One was metallurgist, the other

an expert in the science of petroleum and gas chromotogra-

phy and mass spectrometry, a Ph.D., employed by the United

States Coast Guard. The court permitted only a limited offer

of proof without testimony, permitting only a statement of

the testimony expected. The testimony expected was that

exhibit T, can #3 was porous when it went for re-testing, and

that the gas chromatographies of the sample from can #3

showed that the lighter molecules common to the two cans

tested and relied upon by the state were predominant and

therefore consistent with transfer by evaporation and adsorp-

tion, and inconsistent with a residue of a fire burned product

in which the lighter molecules are consumed by fire. Also

expected: proof that the gas chromotograph taken by the state

from can #3, Exhibit T, did not match the gas chromotograph

of "Siloo" in that the proportions of the common molecules

found indicated a high ratio of lighter molecules, a finding

consistent with transfer by adsorption or contamination fol-

lowing evaporation. Appellant's Appendix 142.

There was no proof that the contents of Exhibit T came

from the burn pattern area. The fire marshal had taken can

#3 from a place near the east wall. No evidence of its origin

is specifically connected to the place of burn pattern. More-

over, although he photographed it, the fire marshal had not

observed nor seen the existence of an automobile engine

head lying along the east wall in location consistent with the

source of Exhibit T debris and not proven otherwise. The

‘ employees of Ekblade did not recall the engine head. There

was evidence that the engine head showed signs of prior use

and was a used part. There was evidence that the engine part

would have been degreased, that Xylene is a petroleum prod-

uct which has as a primary use the degreasing of automobile

engine parts. The trial court did not permit the submission to

the jury of photographs taken on the second floor of Ekblade

parts department three weeks prior to trial showing boxes

containing used parts, with evidence of the leaking petroleum

residue through the cardboard boxes and onto the floor.

(Exhibits 41-56 for identification) The evidence did not ex-

clude the automobile engine part and its cleaning agent as

source of the discovery in can #3.

After the state laboratory Chemist testified, the fire mar-

shal was not recalled to testify as to the care taken to prevent

contamination while the "Siloo" can and can #3, Exhibit T

were in his possession from September 1989 to April of

1990. He did not testify the cans were not stored in common

plastic bag, nor did he testify as to the separation of cans dur-

ing the trip to Meriden, Connecticut in April 1990 for re-

testing. The fire marshal's testimony had not dealt with the

subject matter of contamination prevention, nor his care and

custody of the sample cans during that period nor his efforts

to prevent contamination. There was no evidence whatever

before the jury as to precautions taken. Exhibits showed "Si-

loo" and can #3 were specially together for the ride to Meri-

den in April of 1990. Also, the "Siloo" can was opened and

re-closed in April of 1990. There was no evidence as to the

weight of the "Siloo" can in September, 1989 as compared to

its weight in April, 1990. The possibility that the cans were

stored in common plastic bag was never disproven by the

state, although a large plastic bag was found in the court

room after the case went to the jury in the clerk's waste bas-

Ket (Exhibit 71 for identification). The fire marshal was not

recalled before the state rested; thus presenting the issue

whether the burden appears to have shifted to the Petitioner

to disprove the purity of the state's evidence on the issue of

contamination, and on the condition necessary to relevance.

The Third Proof:

3). | The prosecution's third proof was that the Petitioner

was the last known person to have descended from the se-

cond floor. This proof was conditioned upon proof that no

other person could had access to the second floor subsequent

to the time he descended, and is additionally conditioned

upon independent proof that the fire was caused by arson and

by use of accelerant, and that the 1/2 hour time lapse was

consistent with fire ignited by accelerant.

The prosecution failed to prove the Petitioner had exclu-

sive access to the second floor. The second floor was acces-

sible by a rear entrance on the first floor level near the

stairway to the second floor. There was no proof that the

rear door was closed, guarded, locked, nor that the second

floor was inaccessible from the rear door during the half hour

prior to the discovery of smoke. There was no proof that a

one-half hour time lapse was consistent with delay between

an ignition commenced with use of accelerant and discovery

of smoke. The Petitioner's expert offered proof that under

such circumstance, smoke would have observed within a 3-5

minute period. This testimony was not rebutted. The pro-

secution had prepared with an expert who had done comput-

erized time lapse studies, for which no evidence was offered.

The rebuttal witness, Detective Toscano, reported that an er-

ror in the studies had been made. In any event, the error was

not corrected and no rebuttal was produced.

The Court below, fn.2, p,722, gave probative value, with-

Out evidence, to a conclusion that "Hugins and Keselewski

were never under any suspicion .. .". Petitioner Gray was

not the employee accountable for shortages in inventory; at

trial subpoena for inventory records produced information

that computer records were over six months out date at the

time of fire. There was proof Keselewski was the last person

to leave the parts department every day, and the day preced-

ing fire. The Court permitted the jury to speculate that Peti-

tioner had committed arson under a guise of permitting the

jury to reject speculation. Such process was rejected by the

Connecticut Supreme Court in State v. Villano, 176 Conn.

301, 303, 407 A.2d 969; and Toomey v Danaher 161 Conn.

204, 211, 286 A.2d 293. Petitioner was not the beneficiary

of any fire insurance policy covering inventory against loss.

There was no proof that Keselewski's immediate where-

abouts was investigated for corroboration. By the same pro-

cess the court permitted the jury to conclude there was no

contamination, and that Gray was not under suspicion for the

purpose of interpreting the statement testified to by Marianne

McKeon.

The fire marshal photographed an ashtray containing ciga-

rette butts found on the second floor of the sales agency in

the vicinity of the origin of fire. A negligent smoker was not

ruled out by competent evidence.

The Fourth Proof:

4) The prosecution's fourth proof was testimony that ap-

proximately two hours after the fire was under control that

the Petitioner stated to a co-employee "They think I did it".

The proof was conditioned upon proof that Petitioner had

not been caused to attribute his statement to his reaction to a

statement made to him or proof that no statement was made

to him. Proof of the condition was not offered.

The admission of such evidence without proof of condition

effected a burden of proof switching device, prejudicially

calling upon defendant to testify to explain the statement in

violation of Fifth Amendment rights not to testify. The jury's

only question requested reading of this testimony. The jury

was given the information to use in reaching a verdict. They

had a right to assume the court had deemed the evidence

relevant for use. An inadmissible unfounded accusatory

statement took on a life of its own: Petitioner became a sus-

pect because he reacted to an accusation as would any inno-

cent person.

If the statement was taken at face value, it stood for proof

that an accusation had been made. The prosecution's theory

appears to be that the jury could first disbelieve the state-

ment, and second, without other proof, conclude the opposite

to be true.

The Fifth Proof;

5) The prosecution's fifth proof consisted of claims that

Petitioner's conduct exhibited consciousness of guilt in the

following respects, a) that prior to the fire the Petitioner re-

ported to co-employees that he detected a chemical like odor

on the second floor, b) that during the half hour period prior

to the discovery of fire the plaintiff was busy at his job, and

c) that when the smoke was discovered he ran to his desk to

retrieve the keys to his truck.

These proofs were conditioned upon independent proof

that the fire was in fact caused by arson, and are proofs not

otherwise available to prove the fire was caused by arson

without circular reasoning or "bootstrapping" the process of

proof. A fire caused by conditions of contact between light

bulb and combustible will produce an odor. Doing a job that

is within the scope of duty does not give rise to an inference.

Salvaging property in emergency situations does not give rise

to any inference. The presumption required by the Fifth

Amendment bars such speculation.

Guilt cannot be presumed when the conduct is evaluated.

The Petitioner should have had for this purpose the benefit of

a Constitutional presumption of innocence. Standing by

themselves, the claims of proof were meaningless.

No issue of premeditation was presented. The claim made

by the prosecution, and vouched for by the state, was preju-

dicial and erroneous, but mostly unfair in depriving Petition-

er of due process of law.

SS ee

ARGUMENT

The record was devoid of evidence sufficient to sustain

a conviction causing the petitioner to be deprived of a

fair trial in violation of his constitutional rights under the

Fifth and Fourteenth Amendments.

The admission of conditionally relevant evidence with-

out proof of condition is an unconstitutional burden

switching device which violated petitioner's rights under

the Fifth and Fourteenth Amendments.

Justice Berdon of the Connecticut Supreme Court dissented

from the opinion below. Without agreeing with any state-

ment found in the majority opinion, Justice Berdon found the

record did not support a claim that Petitioner had sole access

to the second floor, that the was no proof the rear entrance

was Closed, or locked, and no evidence that it was guarded,

or under anyone's observation, and that the claims that Peti-

tioner's statement or conduct amounted to consciousness of

guilt were not proven by competent evidence. He found

there was not one shred of evidence in the record to support a

claim that no one had spoken to the Petitioner accusing him

of setting the fire, a necessary basis for a conclusion in sup-

port of the state's case for its proposition that Petitioner's

statement: "They think I did it" was evidential, and he found

that the statement was out of context. In addition the dissent-

ing Justice found the record was barren of proof of motive.

The dissenting opinion expressly concluded that Petitioner

was deprived of his federal constitutional rights to due pro-

cess of law under the Fifth and Fourteenth Amendments, due

to the tenuous nature of the evidence and that the jury had to

resort to speculation and conjecture.

When evidence produces only a foundation for a "conje-

cture", a verdict based thereon must be vacated as totally de-

void of proof under the Fifth and Fourteenth Amendments.

In re Winship, 397 U.S. 358, 364, 90 S Ct 1068, 25 L Ed. 2d

368. Where the evidence should not have gone to the jury in

the first instance, the verdict based thereon should not have

been looked to for support by the majority opinion below as

set forth 221 Conn. 724. A conjecture is a conditionally rele-

vant proof, but when the condition is not proven, the conjec-

ture remains a conjecture incapable of supporting an

inference, and incapable of supporting a verdict.

In this matter, the Connecticut Supreme Court was pres-

ented with a case based entirely upon an onslaught of multi-

ple conjectures. Each of the conditionally relevant proofs

never found proof of the facts necessary to the inferences as-

serted, and upon which they were founded. The major claim

that the "burn pattern" would permit a conclusion that an ac-

celerant was used did not find proof that no other possible

cause of the burn pattern existed. In fact, the condition was

affirmatively disproven by evidence extracted from the fire

marshal himself. This claim did not receive attention in the

opinion of the Connecticut Supreme Court.

If the proceeding had been conducted under the Federal

Rules of Evidence, the prosecution would have been unable

to comply with the requirements of FRE Rule 104(b).

Rule 104. Preliminary Questions. :

(b) Relevancy conditioned upon fact. When

the relevancy of evidence depends upon the ful-

fillment of a condition of fact, the court shall

admit it upon, or subject to, the introduction of

evidence sufficient to support a finding of the

fulfillment of the condition.

The Notes of the Advisory Committee on Rules stated

in part:

Subdivision (b). In some situations, the rele-

vancy of an item of evidence, in the large sense,

depends upon the existence of a particular pre-

liminary fact. Thus, when a spoken statement

is relied upon to prove notice to X, it is without

probative value unless X heard it. Or if a letter

purporting to be from Y is relied upon to estab-

lish an admission by him, it has no probative

value unless Y wrote or authorized it. Rele-

vance in this sense has been labelled "condi-

tional relevancy". Morgan, Basic Problems of

Evidence 45-46 (1962). Problems arising in

connection with it are to be distinguished from

the problems of logical relevancy, e.g. evidence

in a murder case that the accused on the day be-

fore purchased a weapon of the kind used in the

killing, treated in Rule 401.

If the evidence is not such as to allow a

finding, the judge withdraws the matter from

their consideration. Morgan, supra; California

Evidence Code 403; New Jersey Rule 8(2). See

also Uniform Rules 19 and 67.

28 USCS Appendix 34.

A similar rule of court is not found in Connecticut.

Connecticut decisions prior to the decision below were

consistent with the rule of FRE Rule 104(b) as applied to

proofs resting upon circumstantial evidence: Stare v. Villano,

176 Conn. 301, 303, 407 A.2d 969 (Opportunity is no more

than one circumstance which coupled with others might be

sufficient, but standing alone proves nothing.); State vy.

Mayell, 163 Conn. 419, 311 A.2d 60 (Flight must be sup-

ported by proof defendant knew he was wanted; fingerprints

on rearview mirror of abandoned vehicle regularly rightfully

driven not evidence); Malvicini v. Stratfield Motor Hotel,

Inc. 206 Conn. 439, 538 A.2d 690 (Exclusive control neces-

sary to invoke res ipsa loquitur); Toomey v Danaher 161

Conn. 204, 211, 286 A.2d 293 (Other causes bar recovery in

civil proceedings, inferences cannot rest upon guess, conjec-

ture or speculation).

The former rule in Connecticut, and FRE Rule 104(b) were

not or are not procedural in nature. What constitutes proof is

a matter of substantive law when the issue is relevancy. A

conditionally relevant fact standing by itself proves nothing,

and is therefore no evidence at all. A conditionally relevant

fact is to be distinguished from a fact, which independently

of all other facts, is admissible under FRE Rule 401, and

which is sufficient by itself to prove a probability, as distin-

guished from a possibility.

Hereinafter, this Petition discusses whether evidence of a

low burn pattern by itself independently established use of an

accelerant. The standard appeared in evidence in the Article

by John D. DeHaan entitled "Are Localized Burns Proof of

Flammable Liquid Accelerants" wherein he stated: "Invest-

igators should be suspicious of isolated low burns but

they are not proof of the use of flammable liquids." Ap-

pendix A45. The existence of "numerous causes” denies a

conclusion even in a civil case, where the conclusion reached

need not exclude al! reasonably possible causes. Toomey v

Danaher 161 Conn. 204, 211, 286 A.2d 293.

All horses are four legged animals; ergo: all four legged

animals are horses. Query?. A mere "consistency" with a

proposition is insufficient proof in law and in logic to estab-

lish any supposition as proven. A "consistency" is only a

conditionally relevant proof. There were more consistences

with innocence in the evidence than there were with guilt.

The eruption of flames photographed by the fire marshal

from the area of the burn pattern through the window broken

by the firemen to permit evacuation of heat and fumes, the

boxes which created a source of solid fuel for fire at floor

level, the evidence of combustible material hung from steel

rafters, the wooden shelves and combustible matter stored,

together with a concrete roof created conditions which were

proximate producing causes of a low burn pattern in manner

authenticated by the testimony of the fire marshal. The claim

of the Petitioner that the existence of other competent pro-

ducing causes of burn pattern without proof of facts inconsis-

tent with such other causes prevented the drawing of

inferences of guilt is not discussed in the opinion below.

Light bulbs exposed to potential contact with projecting

combustibles were competent producing causes of fire and

the reality and reasonableness of such potential cause of fire

was not competently disproven. Such contact would produce

a forewarning smell when the bulbs were lighted.

Evidence that the sample tested from Exhibit T was free of

contamination required direct testimony. In its decision be-

low, 221 Conn. at p. 721 and at 726-7, the Connecticut Su-

preme Court totally failed to state the proofs presented to the

jury which could establish the conduct by which Exhibit T

had been preserved from contamination. The Connecticut

Supreme Court acting as a reviewing court on appeal cannot

find facts. It cannot be inferred that such proper care of the

“Siloo" can was taken to prevent that can from contamination

because some other can was still leaking at trial, and there-

fore direct testimony as to care and custody of Exhibit T was

dispensable in a fair trial. An error of constitutional magni-

tude results. Proof of the conditioned fact was absent.

The Supreme Court of Connecticut found that the testimo-

ny of Marianne McKeon was supportive of the conviction

(221 Conn. 716, 724) and also averted a finding of error as to

the admission of its evidence by finding, p. 725, that the

statement was sufficiently equivocal as to support both guilt

and innocence, and that admission for consideration by the

jury was not abuse of discretion and constituted harmless er-

ror, citing Dunham v. Dunham, 204 Conn. 303, 324, 528

A.2d 1123. Dunham relied upon State v. Fritz, 204 Conn.

156 at 167, 527 A.2d 1157, (1987) wherein the court stated

“We have consistently held that ‘evidence is relevant only

when it tends to establish the existence of a material fact or

to corroborate other direct evidence in the case.'" No claim

of corroboration of other direct evidence was presented.

There was a departure from prior decisions, including State

v. Mayell, 163 Conn. 419, 311 A.2d 60 (1972) and State v.

Osman, 218 Conn. 432, 437, _ A.2d __ (1991) as well as

State v. Jackson, 176 Conn. 257, 264, 407 A.2d 948 (1978)

where it was stated: "Moreover, inferences which do not

have a basis in facts established by the evidence cannot be

drawn or relied upon to sustain the verdict". The court's

conclusion that the statement is supportive of innocence

should have required a finding that the evidence was not sup-

portive of guilt, that mere consistency is insufficient, that

when a proposition is equally consistent with guilt or inno-

cence without proof of additional facts, that only a conjecture

has been proven, with prejudice.

The Connecticut Supreme Court denied Fifth and Four-

teenth Amendment claims raised by the Petitioner as to the

evidence of witness McKeon by footnote 2, p 722, stating:

The defendant has raised two other

claims related to the admission of this state-

ment. Both merit little discussion.

In the light of the lack of evidence that

authorities had spoken to the defendant before

he made his statement, we conclude that there is

no merit to the defendant's claim that he was

forced, in violation of the fifth and fourteenth

amendments to the United States constitution,

to testify against himself in order to exonerate

himself with respect to his statement.

Because we determine that the trial court

did not abuse its discretion in admitting the

statement, we disagree with the defendant's

claim that a curative instruction was required

with respect to the admission of the statement

into evidence."

[underscore added]

The theme of the majority Connecticut Supreme Court deci-

sion was that lack of evidence that Petitioner had been talked

to in a manner causing him to react to unfair accusation was

the test. The prosecution was thus allowed to rely upon lack

of evidence to prove its case. Petitioner had claimee that the

burden to produce evidence showing state of mird rested

with the prosecution, that the prosecution had a burden to of-

fer affirmative proof that Petitioner had not been talked to.

The "lack of evidence" criteria unconstitutionally switched

the burden of proof to the Petitioner. The presentation of

evidence now acknowledged by the State of Connecticut to

be equivocal, (221 Conn. at 725) has raised the inference of

guilt in violation of the United States Constitution, Articles

Fifth and Fourteenth. At 221 Conn. 724, the court had def-

erred to the jury's acceptance of the evidence as proof of

guilt. The jury was permitted to ask itself: "why did he say

that and why did he not take the stand to explain". The Fifth

Amendment reads in part: "nor shall be compelled in any

criminal case to be a witness against himself ....". The

Amendment "protects the accused against con-

viction except upon proof beyond reasonable

doubt of every fact necessary to constitute the

crime with which he is charged. Jn re Winship,

397 U.S. at 364, 25 L Ed. 2d 368, 90 $ Ct

1068. 51 Ohio Ops 2d 323. This "bedrock,

‘axiomatic and elementary [constitutional] prin-

ciple", id., at 363, 25 L Ed. 2d 368, 909 S Ct

1068, 51 Ohio Ops 2d 323, prohibits the State

from using evidentiary presumptions in a jury

charge that have the effect of relieving the State

of its burden of persuasion beyond a reasonable

doubt of every essential element of a crime.

Sandstrom v Montana, supra, at 520-524, 61 L

Ed. 2d 281, 97 S Ct 2319 (1977); Patterson v.

New York, 432 U.S. 197, 210, 215, 53 L. Ed

2d281, 97 S. Ct 2319 (1977) Mullaney v Wil-

bur, 421 US 684, 598-701, 44 L Ed. 2d 508.

[Francis v Franklin, 471 US 304, at 313, 105 S. Ct

1965, 85 L. Ed 344, 3523]

The question before the Court in this case is

almost identical to that before the Court in

Sandstrom; “whether the challenged jury in-

struction had the effect of relieving the State of

the burden of proof enunciated in Winship on

the critical question of ... state of mind," 442

US, at 521, 61 L Ed. 2d 39, 99 § Ct 2450, by

creating a mandatory presumption of intent

upon proof by the State of other elements of the

offense.

[Francis v Franklin, 471 US 304, at 313, 105 S. Ct

1965, 85 L. Ed 344, 353]

A permissive inference violates the Due Process

Clause only if the suggested conclusion is not

one that reason and common sense justify in

light of the proven facts before the jury. Ulster

County Court, supra, at 157-163, 60 L Ed. 2d

777, 99 US Ct 2213.

[Francis v Franklin, 471 U.S. 304, at 314-5, 105 S.

Ct. 1965, 85 L. Ed 344, 353-4]

The prosecution was merely seeking to "end run" the con-

stitutional amendments by attempting to categorize the de-

fendant's conduct as consciousness of guilt, and without

proper foundation. New Hope v. Duplessie (1975), 324

Minn. 417, 231 N.W.2d 548; United States ex rel Smith v.

Braerly, (1967 CA 3 Pa); 384 F.2d 992; People v. Hodson

(1950), 406 Ill. 328, 94 N.E. 2d 166

Thus an inference attempted from any conditionally rele-

vant fact without proof of the condition is not constitutional-

ly permissible. An inference not justified by reason and

logic is no better than a legislative mandatory presumption

not founded upon reason and common sense. In either event,

"The possibility is sufficiently real that a conviction resting

on the ... presumption cannot be deemed a conviction based

upon sufficient evidence" Turner v United States, 396 U.S.

398, 424, 90 S Ct 642, 24 L Ed. 2d 610, 627. (1970)

The jury was not entitled to disbelieve any statement attrib-

uted to the Petitioner and conclude that disbelief was sub-

stantive proof of the opposite being proven. Novak v.

Anderson, 178 Conn. 506, 507-8, 423 A.2d 147 (1979). It is

error to submit such a proposition to a jury which is wholly

unsupported by the evidence. State v. Rose, 169 Conn. 683,

687, 363 A.2d 1077.

If Petitioner's running for his truck keys is viewed in the

light of the Fifth Amendment constitutional presumption of

innocence, his doing so is guiltless. Only by presuming his

guilt before considering his conduct can a conclusion that he

demonstrated consciousness of guilt be arrived at. Similar

observation applies to his reporting he smelled an odor. This

evidence cannot be used to prove an incendiary fire without

first assuming an incendiary fire existed. The Federal Rules

of Evidence do not allow the use of "bootstrapping". United

States v. Stipe, (1981, CA10 Okla) 653 F.2d 446, 8 Fed

Rules Evid. Serv. 668.

A real possibility of innocence calls for acquittal in a case

founded upon insufficient proofs of circumstantial evidence.

The majority opinion of highest court of the State of Con-

necticut denies the Petitioner his federal right, under the Fifth

and Fourteenth Amendments of the United States Constitu-

tion to protection from unfair prosecution based wholly upon

proofs which are by definition only conjectures, conditional-

ly relevant, and in each instance without proof of the condi-

tion. While the Petitioner's claims are substantial, the

majority opinion of the Supreme Court of Connecticut has

stated twice over that the claims made have no merit. The

court's test was to give great deference to the jury's conclu-

sion that Petitioner's conduct and statement manifested a con-

sciousness of guilt, a test which puts the cart before the

horse. 221 Conn. at 724. At this point in the opinion, it is

established that information the jury should not have had for

the purpose of evaluating guilt was approved for use to the

prejudice of Petitioner because they used it.

The majority opinion below, at 221 Conn. p. 718, 721 and

726-727 tends to blur the evidence at trial in that: a) Detec-

tive Toscano testified only in rebuttal, and his evidence enu

merated only "consistencies" with the state's theory; b) the

sample in Exhibit T was taken generally "from the area

where the fire originated", stated by the court, but, there was

no proof that Exhibit T was taken from the area of the "burn

pattern". There was evidence Exhibit T was taken from a

point near the east wall, and evidence that along the east wall

the engine part was photographed and evidence that the en-

gine part was not noticed by the fire marshal; c) there was no

testimony as to the conditions of storage, between September

of 1989 and the retesting performed in late April, 1990; d)

(from opinion, p.721):

the presence of Siloo in the sample can con-

taining debris from the southeast corner was not

attributable to contamination during storage

from another can leaking Siloo because the

leaking can contained a different brand of die-

sel fuel antigel that would have been detected

by the mass spectrometer had it contaminated

any of the samples;

and (from opinion, p.727):

the debris was not contaminated with Siloo

while in storage because the different brands of

diesel fuel antigel, including Siloo, had been

stored in separate boxes and the only can that

leaked was a diesel fuel antigel of a different

brand than Siloo - a brand that would have been

detected by the spectrometric analysis.

[italics added]

There was no testimony at trial that the "Siloo" can was not

leaking. The reported non-leakage condition is not inferable

from the condition shown by Exhibit 1d for identification

filed July 27, 1990. There was only a mention that a second

can was leaking during trial. There was inferable proof on

the Siloo can itself that it was or had been leaking. There

was no proof the "Siloo" can was not in leaking condition

prior to reopening before retesting. In the aforesaid manner,

the Connecticut Supreme Court, suo moto, determined that

because at trial another can was leaking, that the leaking se-

cond can obviated all need for the fire marshal's testimony as

to storage conditions of "Siloo". The supposition is based

upon a conditionally relevant proposition, with conditions

not proven. The "Siloo" can had been reclosed after the April

test. Was it leaking before the April test is the critica! ques-

tion. The "Siloo" can was separated from the other can im-

mediately before being tested, for the purpose of being sent

to Meriden. The second can referred to by the Connecticut

Supreme Court was not re-tested in April of 1990 (April

24-26, 1990 records of State Forensic Laboratory, Appel-

lant's Appendix 13-15) and subjected to the mass spectrome-

try re-testing comparison done for "Siloo", nor then had its

cap re-closed to prevent further leakage. An assumption that

both cans had equally possessed molecules for which char-

coal had identical affinity for adsorption is presumed without

scientific testimony from the Chemist who testified for the

prosecution. The leaking of any can illustrated lack of care.

This theory offered to satisfy the purity of the sample tested

was not provided to the defense at any time during trial and

did not appear in the briefs or arguments submitted to the

Connecticut Supreme Court. Photographs of the "Siloo" can

marked as exhibits at post trial motions showed a residue of

leakage about the top of the can. Petitioner's claims with re-

spect to the fire marshal not being recalled after the Labora-

tory Chemist testified dealt with the failure to present proof

as to the care taken to prevent contamination during storage.

The opinion below reports the stored, used automobile en-

gine head had been "cleaned". The Petitioner claimed it had

been degreased, with evidence that xylene is a primary de-

greasing agent, that the photographs taken three weeks prior

to trial showed relevant sloppy residues on similar parts

stored for warranty returns to manufacturer.

Evidence that a) the state had not ruled out and could not

rule out fire originating from contact between a burned out

light bulb and a totally consumed combustible and b) that

the fire marshal made an incomplete inspection as he did not

record the position of objects under the burned out light bulb

nor record the location of the spots of melted dripdown plas-

tic residues was transmuted in the words of the majority to:

"... he did not see any material either in contact with or lying

on the floor directly beneath this fixture." 221 Conn. at 719.

The fire marshal had a positive duty to see, to document, to

record, to inspect and to prove. The opinion does not report

he looked, nor that he had related facts as to what he did see.

There was no evidence from which the jury could have con-

cluded that facts were established which were inconsistent

with ignition of fire between light bulb and a combustible,

and no evidence is reported to that end in the opinion. The

opinion below has left open whose burden it was to so prove.

The burden was switched.

The opinion makes no comment as to the rotted through

condition of the tested can, which at trial could be seen

through with its thousands of holes, although its photograph

appeared in Appellant's Appendix, p. 1, filed in the court

below. The opinion is silent as to the duty of the prosecution

to have come forward with direct comprehensive testimony

that addressed the issue of the care and custody of Exhibit T

while it was rotting away and the issue of the care and custo-

dy the can of "Siloo" when both cans were in possession of

the fire marshal. The burden was switched.

The Petitioner's federal due process claims were not pro-

perly dealt with below. This is illustrated by the absence of a

report in the opinion that proofs of competent producing

causes of burn pattern were developed in the evidential re-

cord through unimpeachable testimony of the prosecution's

own witnesses. The opinion should have decided whether

this evidence left the fire marshal's conclusion in the realm of

unexplained conjecture for the reason that he related no fact

and no observation which rendered the other causes of burn

pattern described by DeHaan to be inapplicabie, improbable

or inconsistent.

The jury verdict does not cure the deprivation of Fifth and

Fourteenth Amendment rights for the reason that the jury did

not receive the substantive issues complained of herein with

instructions that put relevancy issues to them squarely as a

question of fact. The flavor of unfairness of trial proceeding

is illustrated by Requests to Charge the jury not granted ap-

pended in the appendix hereto at A47, and record below in

Appeilant's Appendix 116, 124. The Court's Charge to the

jury appears at p. 61, exceptions at p. 96 of Appellant's Ap-

pendix below.

At the time that the prosecution rested its case, the defen-

dant had a right to rely upon such cases as State v. Villano,

State v. Mayell, Novak v. Anderson, Malvicini y. Stratfield

Motor Hotel, Inc. and Toomey v. Danaher, supra, as_repre-

senting principles of Connecticut law which could be relied

upon for purposes of a fair trial under the Fifth and Four-

teenth Amendments.

CONCLUSION

The primary reason why this petition should be granted is

that the Petitioner should not be deprived of liberty and con-

fined to State Prison on even a temporary basis when his

conviction is arrived at only by violating his constitutional

rights. The trial court did not protect the Petitioner's rights

and permitted the jury to consider all incompetent evidence

which the State vouched for as warranting a conviction. The

Petitioner raised his Fifth and Fourteenth Amendment rights

at trial and on appeal. His rights have not been given serious

attention by the majority below. Petitioner's claims were di.

rected to the absence of necessary proofs and the State's evi-

dence disproving its own claims.

The State of Connecticut did not offer proof the can tested

had not been contaminated. The Respondent cannot claim it

had proof an accelerant was used. A valid test was not con-

ducted, nor connected up. There was no "Siloo" can found at

the scene. After proof that conditions existed that account

for burn pattern, no proof was presented of any fact that

would allow such proof to be disregarded as improbable.

The court below admits absence of evidence touching upon

proof that no one had talked to Petitioner. A conviction that

is sustained by a silent record is untenable under the Fifth

Amendment. The opinion of a "fire marshal" who did not

know the mechanics of heat transfer by the process of radi-

ation at the time he formed his opinions (Appendix p.40)

does not qualify in law as "expert" testimony. At least, not

when and with respect to the process by which other causes

were involved, when such was by radiation.

District Courts of the United States should not be overbur-

dened by convictions unconstitutionally obtained in state

courts where the record is totally devoid of competent evi-

dence and where claims that the state has not met its burden

of proof according to the mandates of the United States Con-

stitution have not been answered directly in the state court

when properly raised.

Respectfully submitted

The Petitioner

Jason Gray

Peter B. Reilly

His Attorney

129 Church Street

P.O. Box 1533

New Haven, CT., 06506

In The

Supreme Court of the United States

October Term, 1992

JASON GRAY

Petitioner

STATE OF CONNECTICUT

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF CONNECTICUT

APPENDIX TO PETITION FOR

WRIT OF CERTIORARI

APPENDIX

TABLE OF CONTENTS

1. Decision of Supreme Court of the State of Con-

necticut, April 21, 1992, with dissenting opinion.

2. Text of order denying Motion for Reargument.

May 21, 1992.

Documents showing petitioner raised Constitutional

Issues in the courts below:

3. Excerpts from oral motions presented in trial court

claiming violations of Petitioner's rights under the Fifth

and Fourteenth Amendments to the Constitution of the

United States during trial, as appear in the Appendix to

Petitioner's Brief to the Supreme Court of Connecticut.

4. Excerpt from petitioner's Brief In Support of Mo-

tion For Judgment of Acquittal, July 23, 1990, pages

21-23, 53-55, filed in trial court.

5. Excerpts from Brief filed in Supreme Court of

Connecticut, Pages 35-37, 48-50.

Other material:

6. Excerpts of testimony of fire marshal in trial court.

7. Excerpts of Requests to Charge, not granted.

8. Supplemental Requests to Charge the jury, not

granted.

No.

A27

AS1

221 Conn. 713 APRIL, 1992 713

State v. Gray

STATE OF CONNECTICUT v. JASON GRAY

(14172)

SHEA, J., GLass, COVELLO, BORDEN and BERDON, Js.

Convicted of the crime of arson in the first degree in connection with a

fire at an automobile dealership where he worked, the defendant

appealed to this court. He claimed, inter alia, that the evidence pre-

sented was insufficient to support his conviction. Held:

1. The jury could reasonably have concluded beyond a reasonable doubt

that the fire was incendiary in origin; the jury was entitled to credit

the testimony of the state’s experts that the fire had been intention-

ally started by an accelerant and to reject the testimony of the defend-

ant’s expert that the fire had been accidental in nature.

2. The jury had before it sufficient evidence for it to conclude that the

defendant was the culpable party; the defendant had the opportunity

to set the fire, he had access to the accelerant used to start the fire,

'© Because the trial court must consider all financial orders de novo. we

do not consider the plaintiff's third and fourth claims concerning the suffi-

ciency of the trial court’s award of periodic alimony and counsel fees. As

this court has previously stated: “{TJhe trial court on remand could no more

fashion just and equitable financial orders by reconsidering only the issue

of [property distribution], than it could reassemble a broken vase with only

one piece." Sunbury v. Sunbury, 210 Conn. 170, 173, 553 A.2d 612 (1989).

714 APRIL, 1992 221 Conn. 713

State « Gray

he appeared to have an insider's knowledge about the nature and loca

tion of the fire and he manifested consciousness of guilt

(One pustice dissenting)

3. The defendant could not prevail on his claim that the tnal court improp-

erly denied his motion to stmke the testimony of a witness who stated

that the defendant had told her that law enforcement authonties thought

he “did it’’; that court did not abuse its discretion in determining that

that evidence was relevant to establish consciousness of guilt

4. The defendant's challenge to the admission into evidence of a spectro-

metric analysis of the contents of a can of debris taken from the area

of the fire was unavailing; because there was no reasonable possibility

that the contents of the can were contaminated by a source other than

arson, the tral court did not abuse its discretion in determining that

the evidence was probative

5. The defendant could not prevail on his claim that the tnal court should

not have admitted the testimony of the state's arson investigator as

rebuttal testimony, the challenged testimony having generally con-

tradicted the testimony of the defendant's expert witness.

6. The defendant's challenges to the tnal court's jury instructions were

unavailing; that court did not improperly refuse to charge that the state

had to demonstrate that the defendant had exclusive access to the area

of the fire, and that court correctly charged the jury that proof beyond

a reasonable doubt must exclude every reasonable hypothesis incon-

sistent with guilt and that evidence is confined to exhibits or the testi-

mony of witnesses.

Argued December 5, 1991—decisien released Apmi 21, 1992

Substitute information charging the defendant with

the crime of arson in the first degree, brought to the

Superior Court in the judicial district of New Haven

and tried to the jury before Gormley, J.; verdict and

judgment of guilty, from which the defendant appealed

to this court. Affirmed.

David M. Reilly, with whom were Matthew G. Gal-

ligan and Peter B. Reilly, for the appellant (defendant).

Mitchell S. Brody, assistant state’s attorney, with

whom, on the brief, were Michael Dearington, state’s

attorney, and David Gold, assistant state’s attorney,

for the appellee (state).

COVELLO, J. This is the defendant’s appeal from his

conviction of arson in the first degree in violation of

221 Conn. 713 APRIL, 1992 715

State v. Gray

General Statutes § 53a-111 (a) (1). Following a jury

trial and a guilty verdict, the trial court rendered judg-

ment sentencing the defendant to fifteen years

imprisonment, execution suspended after six years, and

five years probation. The issues on appeal are:

(1) whether the evidence presented at trial was suffi-

cient to support the defendant’s conviction; (2) whether

the trial court improperly ruled on the admissibility of

certain evidence; (3) whether the trial court improperly

refused to charge the jury upon a variety of subjects

as requested by the defendant; and (4) whether the pro-

ceedings, when viewed in their totality, denied the

defendant the right to a fair trial. We affirm the

judgment.

The jury might reasonably have found the following

facts. At the time of the July 7, 1989 fire, the defend-

ant and Calvin Hugins both worked under the super-

vision of Peter Keselewski in the parts department at

Ekblade Oldsmobile (Ekblade), an automobile dealer-

ship and service center in Hamden. The defendant had

been employed in the parts department for two months,

picking up and delivering parts to various automobile

dealerships, garages and automotive body shops.

Hugins had been employed as the clerk at the parts

department service counter for two years, supplying

parts to either the service center or retail customers.

The parts department is located in a two story build-

ing. The first floor contained, inter alia, a service coun-

ter, metal bins, and a desk. Ekblade used the service

counter to display small quantities of high demand

items such as oil filters and antifreeze. The metal bins

contained small parts and various chemicals, including

' General Statutes § 53a-111 (a) (1) provides that [a] person is guilty of

arson in the first degree when, with intent to destroy or damage a build-

ing, as defined in section 53a-100, he starts a fire or causes an explosion,

and (1) the building is inhabited or occupied or the person has reason to

believe the building may be inhabited or occupied.”’

716 APRIL, 1992 221 Conn. 713

State v. Gray

WD-40 and Siloo, a diesel fuel antigel. Ekblade did not

store these chemicals on the second floor. The second

floor, which can only be reached by a flight of stairs

at the rear of the first floor, contained, in part, car-

tons of oil filters and large parts. It is a five foot by

thirty-three foot room with a plywood floor, a concrete

ceiling supported by joists, and rows of storage shelves.

On July 6, 1989, at 3 p.m., the defendant informed

Hugins that he had noticed a chemical smell emanat-

ing from the second floor of the parts department.

Hugins, unable to detect any chemical odor, told the

defendant to speak to their supervisor, Keselewski.

Also that day, the defendant told an Ekblade employee

from another department, Marianne McKeon, that he

smelled something unusual coming from the second

floor. McKeon, like Hugins, did not notice anything

unusual but, similarly, urged the defendant to inform

Keselewski. Later, at 4 p.m., Keselewski asked the

defendant to close a window on the second floor. After

returning from the second floor, the defendant said

nothing about any unusual odors coming from the sec-

ond floor. At no time did the defendant ever mention

his concerns about chemical smells to Keselewski.

Keselewski, like McKeon and Hugins, did not detect

any chemical smell when he closed the parts depart-

ment between 5:30 and 6 p.m.

The next day, July 7, 1989, Hugins opened the parts

department at 7 a.m. At 8 a.m., the defendant again

told Hugins that he smelled chemicals emanating from

the second floor. Hugins searched the second floor but

did not notice any unusual chemical smell. Approxi-

mately fifteen minutes later, between 8:15 and 8:20

a.m., Hugins noticed that the defendant was restock-

ing the parts counter with oil filters that the defend-

ant had obtained from the second floor. At 8:30 a.m.,

when Keselewski called Hugins from another car

dealership, the defendant was talking with McKeon.

221 Conn. 713 APRIL, 1992 717

State v. Gray

About twenty to twenty-five minutes after Hugins

observed the defendant shelving the oil filters, Hugins

Saw smoke coming from the area of the stairs to the

second floor. Hugins turned off the first floor lights and

reported the fire by telephoning the ‘‘911”’ emergency

number. The defendant told McKeon that he had to get

his keys and rushed toward his desk in the rear of the

first floor. McKeon, who attempted to follow the

defendant but then turned back because of the blind-

ing smoke, did not see the defendant again until some-

time between 11 a.m. and 12 p.m. when he stated:

‘“(T]hey think I did it.”

At 8:44 a.m., Hamden firefighters were sent to

Ekblade and they arrived shortly thereafter. The fire-

fighters encountered dense smoke and extreme heat

and noticed flames in the eastern and southeastern cor-

ner of the second floor. By 9:30 a.m., approximately

thirty-five to fifty firefighters were able to subdue the

flames.

The defendant first claims that the record reflects

insufficient evidence to support his conviction. He

argues that the state failed to establish, beyond a rea-

sonable doubt, that: (1) the fire was intentionally set;

and (2) he was the person criminally responsible for its

occurrence. We disagree.

Experts for both parties presented conflicting testi-

mony at trial as to whether the fire was incendiary or

accidental in nature. The state’s expert witnesses,

Robert Westervelt, Hamden’s fire marshal, Joseph Tus-

cano, a senior arson inspector, and Jack Hubbell, the

chemist in the state forensic laboratory, proffered opin-

ions that tended to show that the fire was intention-

ally set. Westervelt inspected the scene on the morning

718 APRIL, 1992 221 Conn. 713

State v. Gray

of July 7, 1989, the day of the fire. Tuscano examined

the parts department later that month. They both

opined that the fire started in the southeast corner of

the second floor where there was a “‘classic pour pat-

tern’’ on the floor created by the ignition of a flamma-

ble accelerant. Westervelt theorized that the arsonist

used approximately twelve to fifteen ounces of a liq-

uid accelerant to start the fire. Westervelt and Tus-

cano noted that the extensive charring at the base of

the shelves was consistent with this theory. Tuscano

further testified that the rate at which the fire devel-

oped was consistent with the ignition of a flammable

accelerant.

Westervelt explained that, in contrast to fires ignited

by ordinary, combustible items, which start slowly and

gradually build in size and strength, fires started by

a flammable accelerant burn rapidly. He testified that

the pattern of burning on the walls did not follow a

straight line, as occurs with a slow burning fire, and

that the second floor window panes were clear and did

not exhibit the heavy glaze commonly associated with

a slow burning fire.

Westervelt further supported his theory that a flam-

mable accelerant had been utilized to start the fire by

explaining how he caused forensic tests to be performed

on materials he had collected from the scene of the fire.

He testified that, at various times, he had taken sam-

ples from the second floor area where the fire origi-

nated. Among these were liquid that had been sponged

from the floor, debris from the southeast corner of the

floor, and a can of Siloo. He placed the samples into

cans, sealed them and brought them to the state foren-

sic laboratory for analysis. Hubbell tested the floor

debris with a mass spectrometer and found the pres-

ence of xylenes, an extremely flammable liquid. Upon

performing a spectrometric analysis of the Siloo and

221 Conn. 713 APRIL, 1992 719

State rv. Gray

comparing it to the xylenes found in the floor debris,

Hubbell found that the two samples had an ‘“‘almost per-

fect match”’ in their chemical constituents.

In discounting other possible theories, Westervelt

eliminated the second floor light bulbs as a cause of the

fire. He determined that all of the bulbs were intact

except for one located one foot north of the fire’s point

of origin. Although the glass portion of that bulb was

missing, Westervelt found that the wires and connec-

tions were still intact and that there was no evidence

of pitting or melting consistent with temperatures that

would give rise to sparking. Further, he did not see any

material either in contact with or lying on the floor

directly beneath this fixture.

The defendant’s expert witness, Matthew Conlon,

concluded, however, that the fire probably originated

at a light bulb and then radiated downward. Conlon

based his testimony on examinations of photographs

of the fire scene; he did not visit the actual scene of

the fire. Conlon opined that a light bulb of a wattage

too high for the fixture could -have melted and then

dripped molten material to the floor causing secondary

ignition. Alternatively, he testified that a bulb could

have come into contact with material on the upper por-

tion of a shelf thereby causing a fire. Conlon maintained

that the burn patterns on the floor were caused by

material that had dropped to the floor after the fire

had already ignited above ground.

Conlon testified further that an electrical cord, which

had originated on the first floor and extended to the

second floor, may have been a cause of the fire. He also

opined that Hugins would have noticed the fire sooner

if the defendant had indeed ignited the flammable

accelerant twenty to twenty-five minutes earlier.

It is well established that in reviewing a claim of

insufficient evidence, a two-part inquiry is undertaken.

720 APRIL, 1992 221 Conn. 713

State ». Gray

‘We first review the evidence presented at the trial,

construing it in the light most favorable to sustaining

the jury's verdict. We then determine whether, upon

the facts thus established and the inferences reason-

ably drawn therefrom, the jury could reasonably have

concluded that the cumulative effect of the evidence

established guilt beyond a reasonable doubt. . . . In

this process of review, it does not diminish the proba-

tive force of the evidence that it consists, in whole or

in part, of evidence that is circumstantial rather than

direct.’ (Citations omitted.) State v. Sinclair, 197 Conn.

574, 576, 500 A.2d 539 (1985). Findings of fact that

are consistent with guilt are afforded great deference

unless they are improbable and unconvincing. State v.

Osman, 218 Conn. 432, 437, 589 A.2d 1227 (1991). In

finding facts in cases of conflicting expert testimony,

a jury may choose to believe one expert over another.

State v. Famiglietti, 219 Conn. 605, 612, 595 A.2d 306

(1991).

The jury in this case was entitled to reject Conlon’s

testimony and credit the testimony of the state’s

experts that the pour pattern on the floor was a

manifestation of the ignition of the flammable acceler-

ant Siloo and that the fire spread from this source. In

declining to believe Conlon, the jury was aware that

he had never visited the site even though he admitted

that it would have been ‘‘much better’’ for purposes

of his investigation if he had done so. Additionally, the

jury knew that Conlon’s theory that the light bulbs had

ignited the fire had been rejected by the state’s experts.

‘Once the state’s expert testimony was found credi-

ble by the jury . . . that evidence established beyond

a reasonable doubt that the fire in this case was incen-

diary in origin.’’ State v. Famiglietti, supra, 612.

The defendant claims, however, that even if Siloo was

the agent used to ignite the fire, there were innocent

explanations for its presence in the floor debris. We

disagree.

Al0

221 Conn. 713 APRIL, 1992 721

State ». Gray

The “jury's function is to draw whatever inferences

from the evidence or facts established by the evidence

it deems to be reasonable and logical. . . . (I]n view-

ing evidence which could yield contrary inferences, the

jury is not barred from drawing those inferences con- |

sistent with guilt and is not required to draw only those

inferences consistent with innocence.” (Internal quo-

tation marks omitted.) State v. Grant, 219 Conn. 596,

604, 594 A.2d 459 (1991), quoting State v. Dumlao, 3

Conn. App. 607, 616-17, 491 A.2d 404 (1985). Here.

the jury was entitled to draw, from conflicting evidence,

the following reasonable inferences that reject the

defendant’s theories and that are consistent with guilt:

(1) Siloo was not inadvertently tracked onto the sec-

ond floor by automobile mechanics because either

Hugins or the defendant, not the mechanics, obtained

the parts from the second floor; (2) Siloo was not intro-

duced onto the second floor as a result of being left on

an automobile cylinder head that was stored there, due

to the mechanics’ practice of cleaning spare parts prior

to storage; (3) the presence of Siloo in the sample can

containing debris from the southeast corner was not

’ attributable to contamination during storage from

another can leaking Siloo because the leaking can con-

tained a different brand of diesel fuel antigel that would

have been detected by the mass spectrometer had it

contaminated any of the samples; and (4) the absence

of Siloo from samples of the floor and floor board on

the second floor could be explained either by evapora-

tion and burning away or by the washing of the floor

by firefighters after the floor debris samples had been

taken but before the floor and floor board in question

were analyzed.

The defendant next claims that, even if the fire was

incendiary, there was insufficient evidence to show that

he was culpable. He argues that the evidence was

All

(22 APRIL, 1992 221 Conn. 713

State ». Gray

insufficient because: (1) he did not have the exclusive

opportunity to cause the fire; and (2) there was no proof

of motive. Because we have never held that proof of

either motive or exclusive opportunity is required to

convict an accused of arson, we conclude that these

claims are without merit. State v. Famiglietti, supra,

614 (state did not have to establish a motive for arson);

State v. McPhail, 213 Conn. 161, 171, 567 A.2d 812

(1989) (jury was entitled to convict defendant of arson

even though others had motive and opportunity to set

dwelling on fire).

The jury had before it sufficient evidence to conclude

that the defendant was culpable. Based upon evidence

that he had an opportunity to set the fire, that he had

ready access to Siloo, the flammable accelerant that

had started the fire, that he appeared after the fire

started to have an insider’s knowledge about the nature

and location of the fire, and that he manifested before

and after the fire a consciousness of guilt, the jury could

have reasonably concluded that the defendant was

guilty beyond a reasonable doubt. We discuss these con-

clusions seriatim.

Other than the time, on the morning of the fire, that

Hugins spent inspecting the second floor following the

defendant’s protestations about “‘chemical smells,”’ the

evidence showed that the defendant was the only per-

son who had been on the second floor that day, before

Hugins noticed the fire. See State v. Famiglietti, supra,

614 (accused’s presence on premises shortly before

start of fire was probative of issue of identity).? The

2 We agree with the dissent that the facts of this case are distinguisha-

ble from those in State v. Famiglietti, 219 Conn. 605, 595 A.2d 306 (1991),

in that, here, the defendart did not have sole access to the scene of the

fire. The cases are similar, however, insofar as ‘the record in this case con-

tains direct evidence of the defendant's presence at the premises shortly

before the fire and of his continued presence there at a time when [the fire

started].’’ Id., 614. This presence is probative of the perpetrator’s iden-

Al2

?2?1 Conn. 713 APRIL, 1992 ‘fe

defendant's presence on the second floor immediately

preceding the fire was especially significant in view of

Keselewski's testimony that it was unprecedented for

the defendant to have gone to the second floor on his

own initiative to obtain parts. Further, the defendant

had ready access to Siloo, which was stored on the first

floor near the service counter. See State v. Cimino. 194

Conn. 210, 213, 478 A.2d 1005 (1984) (access to flam-

mable accelerant probative of issue of identity).

The jury could have reasonably concluded that the

defendant knew about the origin and location of the

fire when he ran to the back of the first floor to get

his keys even after Hugins had noticed the smoke and

called “911.” The jury was entitled to compare and con-

trast the defendant’s and McKeon’s reactions to the

dense smoke and conclude that, while McKeon did not

follow the defendant toward his desk because the smoke

was so thick that she could not see in front of her face

nor discern the location of the fire, the defendant was

not dissuaded from attempting to retrieve his keys

because he was aware that the fire was confined to the

second floor.

The jury could also have reasonably concluded that

the defendant exhibited a consciousness of guilt both

before and after the fire. Before the fire, his attempts

at drawing attention to phantom chemical smells on

the second floor could reasonably lead one to believe

that the defendant was trying to lay the basis for his

exoneration by creating the impression that the con-

ditions for a fire were present before the morning of

tity. It is conceivable that someone other than the defendant could have

started the fire but not likely. Hugins and Keselewski were never under

any suspicion and, furthermore, Keselewski was at another automobile

dealership on the morning of the fire. Moreover. although it is hypotheti-

cally possible that an unidentified person could have entered the building

through the rear door, proceeded to the second floor. lit the fire, and then

left undetected, the jury could have reasonably rejected such speculation.

Al3

12 APRIL, 1992 221 Conn. 713

State » Gray

the fire and that it was simply an accidental conflagra-

tion. None of the witnesses to the defendant's queries

concerning chem‘cal odors noticed any such odor them-

selves and, significantly, the defendant never men-

tioned his concern to Keselewski, even after his fellow

employees urged him to do so. Following the fire, the

defendant told McKeon: ‘‘[T]hey think I did it.’ The

defendant made this statement while Westervelt was

still investigating the fire at Ekblade and before he had

determined that the fire had been deliberately set. The

jury might have reasonably concluded that the defend-

ant was experiencing pangs of guilt before any deter-

mination of wrongdoing had been made. This is not a

case in which the state’s evidence is improbable and

unconvincing; great deference must be given to the

jury's conclusion that the defendant’s conduct and

statements manifested a consciousness of guilt. State

v. Osman, 218 Conn. 482, 437, 589 A.2d 1227 (1991).

The defendant next claims that the trial court improp-

erly ruled on the admissibility of certain evidence by:

(1) denying his motion to strike McKeon’s testimony

that the defendant told her that ‘they think I did it”;

(2) admitting the results of tests done on a can of debris

taken from the second floor; and (3) admitting the

rebuttal testimony of state inspector Tuscano. We

address these claims in order.

The defendant claims that McKeoni’s testimony that

he had told her ‘‘they think I did it,’’ should have been

stricken because it lacked relevance for the purpose of

demonstrating consciousness of guilt. He argues that

the statement is consistent with innocence and that the

state never disproved his contention that law enforce-

ment agents had spoken to him about the fire prior to

his making the statement. The defendant maintains on

Al4

221 Conn. 713 APRIL, 1992 725

State ». Gray

appeal that he had made the statement to McKeon

because he had inferred, after the authorities posed

questions to him about whether he had been smoking,

that they thought that he might have been responsi-

ble for the fire.

“Only upon a showing of a clear abuse of discretion

will this court set aside on appeal rulings on eviden-

tiary matters.” Dunham v. Dunham, 204 Conn. 303,

324, 528 A.2d 1123 (1987). Although the trial court

found that the defendant’s statement could support

inferences that were consistent with both guilt and

innocence, ‘‘{e]vidence need not be conclusive to be rele-

vant; State v. Greene, 209 Conn. 458, 478, 551 A.2d

1231 (1988); and ‘[t]he fact that evidence is suscepti-

ble of different explanations or would support various

inferences does not affect its admissibility, although

it obviously bears upon its weight. So long as the evi-

dence may reasonabiy be construed in such a manner

that it would be relevant, it is admissible.’ State v. Reid,

(193 Conn. 646, 656 n.12, 480 A.2d 463 (1984)]; see

State v. Morrill, 197 Conn. 507, 508, 498 A.2d 76

(1985).”’ State v. Joly, 219 Conn. 234, 252, 593 A.2d

96 (1991).

We conclude that, even if the statement were sus-

ceptible to different interpretations, the trial court did

not abuse its discretion in determining that the defend-

ant’s assertion was relevant. Further, the defendant

has not pointed to any evidence other than his own

statements, nor do we find any, that indicates that the

authorities had spoken to the defendant before he made

the statement. The jury might reasonably have con-

cluded that the defendant volunteered this statement

not because of any urge to respond to innuendo that

he was the responsible party but rather out of a con-

sciousness of guilt. ‘‘No one doubts that the state of

mind which we call ‘guilty consciousness’ is perhaps

AlS

126 APRIL, 1992 221 Conn. 7138

State . Gray

the strongest evidence . . . that the person is indeed

the guilty doer. . . ..’2 J. Wigmore, Evidence (Chad-

bourn Rev. 1979) § 273 (1).8

The defendant claims next that the trial court improp-

erly admitted into evidence the spectrometric analy-

sis of the contents of the can of debris taken from the

second floor near the eastern wall. The defendant

asserts that there was no proof that the debris was not

contaminated in some way other than by arson. He

argues that: (1) the debris could have come into con-

tact with a cylinder head on the second floor that was

covered with Siloo, the flammable accelerant found in

the same debris; (2) prior to the time that the debris

was subject to spectrometric analysis, Siloo could have

been absorbed into the can containing the debris while

the can was in storage; and (3) the results of the spec-

trometric analysis lacked probative value because:

(a) the debris samples were not taken from the area

where Westervelt identified a burn pattern; and

(b) Westervelt’s opinion on the origins of the fire did

not refer to the state chemical laboratory test results.

Because we conclude that there is no reasonable prob-

ability that the debris contained in state's exhibit T was

contaminated by a source other than arson, the trial

court did not abuse its broad discretion in determin-

ing that the evidence was probative and in admitting

3 The defendant has raised two other claims related to the admission of

nis statement. Both ment little discussion.

In light of the lack of evidence that the authorities had spoken to the

defendant before he made his statement, we conclude that there is no ment

to the defendant's claim that he was forced, in violation of the fifth and

fourteenth amendments to the United States constitution, to testify against

himself in order to exonerate himself with respect to his statement

Because we determine that the tmal court did not abuse its discretion

in admitting the statement, we disagree with the defendant's claim that

a curative instruction was required with respect to the admission of the

statement into evidence

Al6

221 Conn. 713 APRIL, 1992 727

State ». Gray

this evidence. State v. Asherman, 193 Conn. 695. 722.

478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105

S. Ct. 1749, 84 L. Ed. 2d 814 (1985).

The tral court might reasonably have concluded that:

(1) the cylinder head was not a cause of any alleged con-

tamination because Keselewski had testified that all

spare parts were cleaned prior to being stored on the

second floor; and (2) the debris was not contaminated

with Siloo while in storage because the different brands

of diesel fuel antigel, including Siloo, had been stored

in separate boxes and the only can that had leaked was

a diesel fuel antigel of a different brand than Siloo—a

brand that would have been detected by the spectro-

metric analysis. Further, contrary to the defendant's

contention, Westervelt testified that he had taken his

samples from the area where the fire originated.

Westervelt also testified that he took samples and sent

them to the state laboratory for analysis. The fact that

Hubbell, the state laboratory chemist, testified as to

the results of his tests on the samples Westervelt sent

to him after Westervelt testified does not mean, as the

defendant maintains, that the jury could not have con-

cluded that Hubbell’s testimony supported Westervelt’s

opinion that the fire had been started with the aid of

a flammable accelerant. The jury is entitled to apply

its own knowledge and common sense to the evidence.

State v. Sinclair, 197 Conn. 574, 578, 500 A.2d 539

(1985).

The defendant next argues that Tuscano’s testimony

was not proper rebuttal testimony but merely bolstered

the state’s prior testimony that the burn patterns were

consistent with arson instead of specifically address-

ing or refuting the possibilities raised by the defense

of accidental causes of the fire. For these reasons he

maintains that the trial court should not have admit-

ted Tuscano’s testimony.

Al?

128 APRIL, 1992

2?1 Conn. 713

State Gray

The admission of rebuttal evidence is . . . within

the sound discretion of the trial court.”’ State v. Lisella,

187 Conn. 335, 337, 445 A.2d 922 (1982). There is no

requirement that a rebuttal witness must respond to

every alternate theory offered by the defendant con-

cerning the possible origin of the fire; a general con-

tradiction of the testimony given by the defendant is

considered permissible rebuttal testimony. State v.

Simino, 200 Conn. 118, 123, 509 A.2d 1039 (1986). Tus-

cano’s assessment that the burn patterns at the fire

scene were consistent with the ignition of a flamma-

ble accelerant generally contradicted the testimony of

defense expert Conlon. Moreover, Tuscano’s testimony

directly refuted Conlon’s testimony that the fire burned

at a rate that was inconsistent with the use of a flam-

mable accelerant.

IT]

The defendant next claims that the trial court improp-

erly failed to instruct the jury as requested in a num-

ber of areas. We address these claims seriatim.

The defendant first claims that the trial court improp-

erly failed to charge, as requested, that there would

be insufficient evidence of identity if the state failed

to demonstrate that he had exclusive access to the sec-

ond floor. We have already addressed the merits of this

claim in reviewing the defendant’s contention that the

evidence was insufficient to convict him. As we stated

with respect to that claim, we have never held that the

state must prove that the defendant had exclusive

access to the scene of the fire in order to obtain a con-

viction. State v. McPhail, 213 Conn. 161, 171, 567 A.2d

812 (1989). ‘“‘The principal function of a jury charge is

‘to assist the jury in applying the law correctly to the

facts which they might find to be established. . . .’”’

State v. Hernandez, 218 Conn. 458, 462, 590 A.2d 112

A18

221 Conn. 713 APRIL. 1992

State Gray

(1991), quoting State v. Sumner, 178 Conn. 163, 170.

422 A.2d 299 (1979). We conclude that the trial court

accomplished just that in its charge.

The defendant next claims that the trial court improp-

erly refused to charge, as requested, that the state must

proffer evidence that rules out all innocent explanations

for the cause of the fire that are reasonably possible.

We disagree.

Proof of guilt [bevond a reasonable doubt] must

exclude every reasonable supposition of innocence

. It need not exclude every possible supposition of

innocence.”’ (Internal quotation marks omitted.) State

v. Little, 194 Conn. 665, 672, 485 A.2d 913 (1984). Here.

the trial court correctly charged the jury that proof

beyond a reasonable doubt must exclude every reason-

able hypothesis inconsistent with guilt.

The defendant next claims that the trial court improp-

erly refused to charge, as requested, that the jury could

not infer that the author of an article relied upon by

the defendant had been disciplined or fired for employ-

ing improper laboratory techniques based solely upon

questions to that effect posed by the prosecutor.

Although briefed in a most limited fashion, the grava-

men of the defendant’s claim appears to be that ques-

tions posed by the prosecutor did not constitute

evidence or a basis for drawing factual inferences. “If

a requested charge is in substance given, the court’s

failure to give a charge in exact conformance with the

words of the request will not constitute a ground for

reversal.’’ State v. Ortiz, 217 Conn. 648, 662, 588 A.2d

127 (1991). Although the trial court did not specifically

instruct as requested, the jury received the substance

of the request in the instruction that evidence is con-

Alg

730 APRIL, 1992 221 Conn. 713

State “. Gray

fined to either exhibits or the testimony of witnesses.

Further, ‘(t]he jury is presumed, in tie absence of a

fair indication to the contrary, to have followed the

(trial] court's instructions as to the law.’’ State v.

Gabriel, 192 Conn. 405, 416, 473 A.2d 300 (1984).

The defendant's final claim is that he was denied a

fair trial pursuant to the due process guarantees of the

fifth and fourteenth amendments to the United States

constitution. The defendant essentially repeats, in a

summary fashion, the allegations raised throughout the

rest of his brief. The absence of merit underlying those

claims refutes this last claim.

The judgment is affirmed.

In this opinion SHEA, GLASS and BORDEN, Js., con-

curred.

BERDON, J., dissenting. I disagree. The evidence con-

strued in the light most favorable to sustaining the

jury's verdict; State v. Sinclair, 197 Conn. 574, 576,

500 A.2d 539 (1985); is insufficient to support the find-

ing of guilt beyond a reasonable doubt, even if we

assume the fire was incendiary—that is, intentionally

set.

In making our determination of whether the evidence

was sufficient to convict the defendant, we place great

weight on the trial court's decision on the motion to

set aside the verdict and the motion for judgment of

acquittal; State v. Cobbs, 203 Conn. 4, 18, 522 A.2d 1229

(1987); but its decision does not carve the conviction

in stone. ‘‘The trial court’s findings of fact are not con-

clusive, however, and we will reverse a judgment where

the state’s evidence is improbable and unconvincing and

where all the facts found are insufficient to prove the

A20

221 Conn. 713 APRIL, 1992 731

State rv. Gray

guilt of the defendant beyond a reasonable doubt.”

State v. Osman, 218 Conn. 432, 437, 589 A.2d 1227

(1991).

The majority opinion predicates its conclusion that

there was sufficient evidence to support the conviction

of the defendant on the following: (1) The defendant

had an opportunity to set the fire, including ready

access to Siloo, the accelerant the state theorized had

been used to start the fire; (2) the defendant had an

‘insider's knowledge about the nature and location of

the fire’’; and (3) the defendant had manifested a con-

sciousness of guilt. The collective effect of this evidence,

however, was insufficient to establish beyond a reason-

able doubt the defendant’s guilt.

First, although the defendant had the opportunity to

set the fire, he did not have sole access to the second

floor where the fire originated or to the accelerant. We

have held that opportunity alone, although a consider-

ation, proves nothing. State v. Villano, 176 Conn. 301,

303, 407 A.2d 969 (1978); State v. Skinner, 132 Conn.

163, 167, 43 A.2d 76 (1945). State v. Famiglietti, 219

Conn. 605, 614, 595 A.2d 306 (1991), to which the

majority opinion cites, is inapposite. In Famiglietti, the

defendant arrived at the store shortly before the fire,

the store was locked and no one else was visible inside.

The jury heard testimony from the Sonitrol operator

that the defendant had “‘coded out”’ just minutes before

he noticed the fire. The operator also testified that he

had heard “crackling” and “‘loud popping noises” while

the defendant was still in the building. Id., 613. In the

present case, however, the state concedes that the

defendant did not have exclusive access to the prem-

ises. At least two other people, Calvin Hugins and Peter

Keselewski, had unlimited access to the fire scene and

to the Siloo, which gave them the same opportunity the

defendant had to set the fire. Moreover, the majority

opinion concedes that Hugins had been to the second

A21

732 APRIL, 1992 221 Conn. 713

State ¢ Gray

floor on the morning of the fire. Additionally, there was

proof of access to the second floor by a rear door and

there was no proof that it was closed, or locked, and

no evidence that it was guarded, or under anyone's

observation.

In State v. Villano, this court reversed the defend-

ants conviction for burglary, even though the defend-

ant had been given a key to the house and, therefore,

had sole access to it. The evidence in Villano showed

that “‘{a]ll the doors and windows, including those in

the cellar, were found locked. There was no sign of a

forced entry. The [complainants] had not given anyone

but the defendant permission to enter their home and

no one else had a key to the premises.”’ Id., 302. Not-

withstanding the defendant’s sole access to the prem-

ises, this court concluded in Villano that ‘‘it is clear

that there was not sufficient evidence before the [trial]

court to establish beyond a reasonable doubt that the

defendant was guilty of the crimes charged.”’ Id., 303.

[ cannot reconcile the majority’s opinion in the present

case, given that here the defendant did not have sole

access to the premises where the fire originated, with

the just result reached in Villano.

Second, the defendant’s culpability cannot be predi-

cated on the claim that the defendant “‘had an insider’s

knowledge about the nature and location of the fire.”’

The defendant never stated that he nad known that the

fire had been located on the second floor. I cannot see

how the jury could have reasonably concluded that the

defendant’s act of running to the back of the first floor

to retrieve his truck keys amounted to an “‘insider’s

knowledge”’ of the origin and location of the fire. The

reverse is more logical—that is, had he set the fire, he

would not have left his keys in the building in the first

place.

A22

221 Conn. 713 APRIL, 1992 733

State + Grav

Third, the majority opinion states that the defend.

ant’s behavior, both before and after the fire, had

“manifested a consciousness of guilt.”’ Before the fire.

the defendant repeatedly stated that he had smelled

chemicals. Although this behavior could arguably be

construed as laying the foundation that the fire had

been accidental in nature, the opinion fails to cite any

authority to support this “‘pre-crime”’ consciousness of

guilt. Actions or words manifesting a consciousness of

guilt, unlike evidence establishing the defendant's

motive or plan, are logically predicated on the crime

already having been committed. See, e.g., State v. Joly,

219 Conn. 234, 251, 593 A.2d 96 ( 1991); State v. Smith.

219 Conn. 160, 165, 592 A.2d 382 (1991); State v.

Thomas, 214 Conn. 118, 121, 570 A.2d 1123 (1990).

The majority opinion further states that the defend-

ant’s statement to Annie McKeon after the fire, that

“they think I did it,” manifested a consciousness of

guilt. The reasoning is based on the claim that no one

had spoken to the defendant accusing him of setting

the fire before he had made the statement. There is

not a shred of evidence, however, to support this claim.

Furthermore, the ‘‘they think I did it’’ statement is

taken wholly out of context. McKeon went on.to tes-

tify as follows:

“Q. On that date do you recall whether or not you

were asked a question on 7/28/89, question, ‘Has he

given any indication that he personally had started the

fire?’

“A. Yeah, I remember the question.

“Q. And what was [your] answer to that question?

“A. No.

“Q. At that time you told Mr. Dunham (a detective]

that he had given no indication that he personally had

started the fire?

“A. No.”’

A23

734 APRIL, 1992 221 Conn. 713

State ». Gray

Again, without more, I cannot see how the defend-

ant’s statement to McKeon revealed a consciousness

of guilt. Surely, to convict the defendant on the basis

of this evidence, ‘the jury would have had to resort

to speculation and conjecture and to have drawn unwar-

ranted inferences from the facts presented.”’ State v.

Osman, supra, 437.

Lastly. and perhaps most troubling for me, is the lack

of a motive. The absence of motive was also troubling

for the sentencing court.! Although I am aware that

it is not necessary to prove motive in an arson prose-

cution; see State v. Pinnock, 220 Conn. 765, 792, 601

A.2d 521 (1992); in a case where the evidence is paper

thin, lack of motive is significant. In Pinnock, we held

that ‘presence or absence of motive . . . is a circum-

stance to be weighed-with other evidence for the jury

toconsider. . . . State v. Ruffin, 206 Conn. 678, 681,

539 A.2d 144 (1988): State v. Annunziato, 169 Conn.

517, 530, 363 A.2d 1011 (1975). An instruction on

motive and lack of motive is sometimes required

because [e]vidence tending to show the existence or

nonexistence of motive often forms an important fac-

tor in the inquiry as to the guilt or innocence of the

defendant. State v. Rathbun, 74 Conn. 524, 529, 51 A.

540 (1902). State v. Harris, 182 Conn. 220, 224, 438

A.2d 38 (1980). The role motive plays in any particu-

lar case necessarily varies with the strength of the other

evidence in the case. The other evidence may be such

as to justify a conviction without any motive being

shown. It may be so weak that without a disclosed

motive the guilt of the accused would be clouded by a

reasonable doubt. State v. Rathbun, supra, 529-30.”’

‘ The sentencing court stated: *‘To say the obvious, this is a case that

troubles the Court very much. It troubled me during the course of the trial,

because, aS everyone will recall, even as a part of the arguments in the

case and with reference to the instructions. there never appeared to be any

particular motive for whatever happened [at] Eckblade on that particular

day.”’

A24

2?1 Conn. 713

APRIL, 1992 73

State ". Gray

(Emphasis in orginal; internal quotation marks omit-

ted.) State v. Pinnock, supra, 790. Indeed, under the

facts of this case, the lack of a disclosed motive pre-

sented a fatal blow to an already weak case.”

“It is axiomatic that any conclusion, reasonably to

be drawn from the evidence, which is consistent with

the innocence of the accused must prevail. State v. Guil-

foyle, 109 Conn. 124, 139, 145 A. 761 [1929]. State v.

Foord, 142 Conn. 285, 294, 113 A.2d 591 (1955): State

v. Morrill, [193 Conn. 602, 610, 478 A.2d 994 (1984)].

The trier may not reach a conclusion of guilt where the

facts, established by the evidence, including those rea-

sonably and logically inferred from other proven facts,

are rationally consistent with the innocence of an

accused. A conclusion of guilt requires proof beyond

a reasonable doubt, and proof to that extent is proof

which precludes every reasonable hypothesis except

that which it tends to support, and is consistent with

the defendant’s guilt and inconsistent with any other

rational conclusion. State v. Smith, 138 Conn. 196, 200,

82 A.2d 816 [1951]. State v. Foord, supra, 295; State

v. Martin, [195 Conn. 166, 173, 487 A.2d 177 (1985)}:

State v. Morrill, supra, 610-11. Moreover, interences

which do not have a basis in facts established by the

evidence cannot be drawn or relied upon to sustain a

verdict. State v. Jackson, 176 Conn. 257, 264, 407 A.2d

948 (1978). The jury may not resort to speculation and

conjecture. State v. Saracino, 178 Conn. 416, 419, 423

A.2d 102 (1979). If the evidence is insufficient to sus-

tain the burden of proof beyond a reasonable doubt,

the verdict must be set aside. State v. Jackson, supra,

* Moreover, ‘‘especially when the prosecution's case against the crimi-

nal defendant is circumstantial, the fact that the defendant had some motive,

good or bad, for committing the crime is one of the circumstances which,

together with other circumstances, may lead the factfinder to conclude that

he did in fact commit the crime; whereas lack of any discernible motive

is a circumstance pointing in the direction of his innocence."’ 1 W. LaFave

& A. Scott, Substantive Criminal Law (1986) § 3.6 (b), p. 324.

A295

736 APRIL, 1992 221 Conn. 713

State . Gray

262.” (Internal quotation marks omitted.) State v. Car-

penter, 214 Conn. 77, 84, 570 A.2d 203 (1990). It is clear

to me that the defendant was deprived of his state and

federal constitutional rights to due process of law

because, given the tenuous nature of the evidence used

to convict him, the state did not meet its burden of proof

beyond a reasonable doubt and, therefore, to convict

the defendant, the jury must have resorted to specu-

lation and conjecture. See Jn re Winship, 397 U.S. 358,

364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); State v.

Carpenter, supra, 82.

Because I would vacate the judgment and remand

the matter to the trial court with direction to render

judgment that the defendant was not proven guilty of

the crime of arson in the first degree beyond a reason-

able doubt, I have not discussed the defendant’s other

claims of error. By not addressing them, I do not adopt

the conclusion and reasoning of the majority on some

of these issues. Accordingly, I respectfully dissent.

A26

2. Text of Order denying Motion for Reargument.

STATE OF CONNECTICUT

SUPREME COURT

NO. SC 14172

STATE OF CONNECTICUT

JASON GRAY :MAY 21, 1992

ORDER

THE MOTION OF THE DEFENDANT, FILED

APRIL 28, 1992, TO REARGUE AND FOR RECONSID-

ERATION, EN BANC, HAVING BEEN PRESENTED TC

THE COURT, IT IS HEREBY ORDERED DENIED.

BERDON, J. WOULD GRANT.

BY THE COURT

FRANCIS J. DRUMM

CHIEF CLERK

3. Excerpts from oral motions presented in trial

court claiming violations of Petitioner's rights under the

Fifth and Fourteenth Amendments to the Constitution of

the United States during trial, as appear in the Appendix

to Petitioner's Brief to the Supreme Court of Connecti-

cut.

[Transcript . (1101) May 15, 1990. Appellant's appendix

below, p.46.]

THE COURT: On the Jason Gray matter we're back on. The

defense counsel has an additional motion.

MR. REILLY: Yes, your Honor. In my supplemental re-

quest to charge the first two paragraphs | cite cases, while

they are in the civil law and not in the criminal they deal with

the subject matter circumstantial evidence, speculation and

the degree of proof which must be present before you can

draw conclusions that an event happened. And in the proposi-

tion that I speak to is that if you could not sue Jason Gray

and recover for damages in a civil action because it would be

speculation, that the same element of speculation would exist

in this case.

And my claim is that if we are going to allow in a

criminal case that form of speculation which would not be

allowed in a civil case, that my client's rights under the Sth

and 14th Amendments of the Constitution of the United

States would be violated by a procedure which would vioiate

his rights to due process of law.

This case, under circumstances, should not be allowed

to go to a jury where the claims of proof do not exclude the

possibilities that must be overcome by the State in this in-

stance.

Mr. Gray does not have control over the back doors.

He does not have control over access to the stairs through the

rear door. He has been at the front counter. There is evi-

dence that the rear door was open and there has been no

A28

proof that he had some one sitting there on his behalf guard-

ing that back door preventing someone from going in, going

up the stairs and coming down again, and there's been no

proof that it would have been impossible under the facts of

this case for that to have occurred.

There's certainly proof that there was adequate time.

The element of time that is involved. We have a situation

where a telephone call came in about 8:30 according, to Cal

Hugins. At that time Jason Gray had been at the counter for

about ten minutes, the call goes into the fire department, ac-

cording to their records, at 8:44. There can be certainly no

way that anybody can claim that the time that Jason Gray had

been upstairs and came down was fixed and there's no proof

to the amount of time and the e amount of opportunity for

access.

It's a claim by the State that this is an arson and an

arson situation would be most unusual and if a person is go-

ing to commit arson we can expect unusual activities and if

we've got somebody doing in starting a fire, going out again,

there's always going to be someone who is the last innocent

person in the vicinity. That possibility has not been ex-

cluded in this case.

Under those circumstances this case should not go to

the jury. If it goes to the jury then we're allowing speculation.

And we're allowing a jury to come in with a verdict. And

under those circumstances, that's not due process of law.

THE COURT: All right. This essentially is similar to argu-

ments previously made by the defense at the end of the

State's case and at the conclusion of the case.

MR. REILLY: Yes. With the support of the case at 206

Connecticut.

A29

4. Excerpt from Brief In Support of Motion For

Judgment of Acquittal, July 23, 1990, pages 21-23, 53-55,

filed in trial court.

SUPERIOR COURT JULY 23, 1990

BRIEF IN SUPPORT OF MOTION FOR JUDGMENT OF

ACQUITTAL

Pages 21-23:

No evidence was offered to prove Jason had not been

accused and no evidence was offered to show he had no rea-

son to believe he was suspected of having been a cause, in

some manner, of the fire. The witness had immediately de-

clared that she did not attribute to Jason any admission that

he committed a crime.

The statement of Jason may be interpreted as follow-

ing a conversation by Jason with a third person in which the

third person indicated to Jason that he thought Jason caused

the fire. There was no attempt by the State to prove that Ja-

son had not had conversations with others. In effect by the

maneuver, the State has called upon Jason to supply the miss-

ing element as if Jason was now required to assume the bur-

den of proof to supply the missing element of fact and that

he, Jason, must testify whether or not conversation with third

party occurred.

This cannot be squared with Jason's rights under the

Fifth and Fourteenth Amendment to the United States Con-

stitution that the the defendant is not required to testify

against himself, that no presumption can be created to cause

the defendant to supply missing elements of necessary proof,

and that the criminal trial must be fair, that no unfair burden

shifting device be used. Sandstrom v. Montana, 442 U.S.

$10, 524, 61 L Ed 2d 39, $1, 99 S. Ct. 2450. By some form

A30

of tacit admission rule, the State places the burden upon Ja-

son to explain but without first offering any proof that Jason

had not been inquired of. It would appear that Jason's reac-

tion to an unfair accusation is now used as a ploy to cause

him to take the stand. There was no instruction to the Jury

that addressed this issue. The jury was left to assume the

event had legal significance, that the event supported a claim

of the State. They asked that the testimony be reread.

Compare:

United States ex rel Smith v. Braerly

(1967 CA3 Pa); 384 F2d 992

People v. Hodson (1950)

406 Ill. 328, 94 NE2d 166

The prosecution was merely seeking to "end run" the

constitutional amendments by attempting to categorize the

defendant's conduct as consciousness of guilt, and without

proper foundation.

New Hope v. Duplessie (1975)

324 Minn. 417, 231 NW2d 548

The jury having been led to believe the evidence was

relevant was allowed to speculate that no conversation had

previously occurred between Jason and a third party, without

proof. The jury was further led to believe that having pres-

ented this evidence, the State could rest on the point and call

upon Jason to identify the accuser, who could now become a

rebuttal witness.

Submitting an issue to a jury when a necessary ele-

ment is missing as if the evidence justified the jury making

determination of the issue and as if the element were not

missing is error.

State v. Carpenter

214 Conn. 77, 83

A3]

Pages 53-55:

CONCLUSION

A conviction based upon the facts presented in this

case violates Jason Gray's rights to a fair trial as guaranteed

by the Fifth and Fourteenth Amendments to the Constitution

of the United States. The existence of a burn pattern alone

leads to a stated conclusion by the Fire Marshal when he

knows other causes exist for the creation of a burn pattern.

His opinion was independent of any evidence later produced,

and therefor not based upon later evidence. He did not say

the tests of the laboratory aided his opinion. The jury had no

expert testimony as to the meaning of the tests. They were

left to speculate. The refusal of the laboratory to conduct

timely testing as a state agency denied the defendant the right

to fair testing without possibility of contamination. The fail-

ure of the Fire Marsha! to properly record the evidence that

would demonstrate the patterns left by the cardboard cartons

before they were consigned to the dumpster violated the de-

fendant's right to fair trial, and the failure to search in the

seams violated recognized forensic methods. The taking of

samples from rusted out cans without proof of freedom from

contamination, and the testing and offering same in evidence,

violate rights to fair trial. The failure to recall the Fire Mar-

shal violated rights to a fair trial and allowed speculation,

particularly after instructions that glorified circumstantial

evidence in general without regard to the flimsy and fabri-

cated nature of the evidence adduce in this case. The state

was aware that the issue of plastic contamination was in this

case, and nevertheless did nothing to prove freedom from

this source of contamination. The State Laboratory Crimi-

nologist, after refusing to test promptly, belatedly tested can

#3, Exhibit T, after the disintegration by rusting through was

evident. He denied qualification as a metallurgist and denied

A32

having knowledge of the significance of the disintegration

which was manifested by a shower of rust when he attempted

to strike the can with an awl. The denial of fair trial is com-

pounded by an attempt to claim guilty conduct in the con-

versation with Annie McKeon without subsequent attempt to

prove that no conversations had occurred with an accuser.

This element of proof was totally lacking and the jury was

permitted to speculate that if the state was claiming that this

was a spontaneous utterance, the defendant and not the state

now has to present evidence to explain. This is the equiva-

lent of an attempt to create a presumption. Presumptions that

call for explanations by the defendant are unconstitutional,

and not only violate the fair trial requirement, but also the

presumption of innocence demanded by the Fifth Amend-

ment.

Where it can not be said that a rational trier of fact

could find guilt beyond a reasonable doubt, then, a convic-

tion cannot “constitutionally stand" as it is violative of due

process under the fourteenth amendment. Jackson vy. Virgin-

ia, 443 U.S. 307, 317-318, 99 S Ct. 2781, 61 L Ed. 2d 560

(1979). "The Constitution prohibits the criminal conviction

of any person except upon proof of guilt beyond a reasonable

doubt." Jackson v. Virginia, 61 L Ed. 2d at 567.

A33

. Excerpts from Brief filed in Supreme Court of

Connecticut, Pages 35-36, 48-50.

E. The court erred in admitting testimony, and

preventing fair cross-examination of Annie McKeon, and in

failing to strike testimony for failure to establish sufficient

foundation for the jury's consideration, and in refusing fair

requests to charge.

Statements to Annie McKeon that "they" were after

him for starting the fire are innocent. If a person is accused

of doing. something, whether negligently or intentionally,

comment on the accusation is not guilty conduct. What fact

makes this comment one of guilt? Ifa fact is absent, who has

the burden of proof? The answer is found in the Fifth

Amendment to the Constitution of the United States. Defen-

dant had been asked to give written statement. (See: Ex CC

for id) They had talked to Defendant about smoking. Once

they raise the issue, the State had the burden of proving the

adequate foundation, 1.e., the defendant's state of mind was

not reaction to accusation. They had to at least offer evi-

dence so tending.

Where there is no evidence of an essential fact to be

proved, a conclusion based thereon is mere conjecture and

not an inference. Waldron v. Skelly Oil Co., 363 Mo. 1146,

257 S.W.2d 615, 621 (1953); State v. Mayell, 163 Conn. 419

(discussed below)

An innocent man can be upset enough to comment on

an accusation. The State knew Annie's statement had attrib-

uted Defendant's comment to his perception of conduct on

the part of others.

In this manner, the State attempted to prove con-

sciousness of guilt, but without proper foundation and with-

out proof of necessary fact. All that was proven was that an

inadmissible prosecution-serving accusation was made to De-

A34

fendant. However, the State was permitted to make claims

more extensive and claimed proof of culpable conduct.

Annie McKeon had immediately declared that she did

not attribute to defendant any admission that he committed a

crime.

The State's unrestricted use of this claim cannot be

squared with defendant's rights under the Fifth and Four-

teenth Amendment to the United States Constitution that the

defendant is not required to testify against himself, that no

presumption can be created to cause the defendant to supply

missing elements of necessary proof, and that the criminal

trial must be fair, that no unfair burden-shifting device be

used. Sandstrom v. Montana, 442 U.S. 510, 524, 61 L.Ed.2d

39, 51, 99 S. Ct. 2450. By some form of tacit admission

rule, the State places the burden upon Defendant to explain

but without first offering any proof that Defendant had not

been led to conclude that some form of blame was attributed

to him. It would appear that Defendant's reaction to an un-

fair accusation was used as a ploy to cause him to take the

stand. There was no instruction to the jury that addressed

this issue. The jury was left to assume the event had legal

significance,......

[p. 48-50]:

Part II: The defendant did not receive a fair trial as required

by the United States Constitution, 5th and 14th Amendments.

A conviction based upon the facts presented in this

case violates Defendant Gray's rights to a fair trial as guaran-

teed by the Fifth and Fourteenth Amendments to the Con-

stitution of the United States. The existence of a burn pattern

alone leads to a stated conclusion by the Fire Marshal when

he knows other causes exist for the creation of a burn pattern.

His opinion was independent of any evidence later produced,

and therefor not based upon later evidence. He did not say

A35

the tests of the laboratory aided his opinion. The jury had no

expert testimony as to the meaning of the tests. They were

left to speculate. The refusal of the laboratory to conduct

timely testing as a state agency denied the defendant the night

to fair testing without possibility of contamination. The fail-

ure of the Fire Marshal to properly record the evidence that

would demonstrate the patterns left by the cardboard cartons

before they were consigned to the dumpster violated the de-

fendant's right to fair trial, and the failure to search in the

seams violated recognized forensic methods. The taking of

samples from rusted out cans without proof of freedom from

contamination, and the testing and offering same in evidence,

violate rights to fair trial. The failure to recall the Fire Mar-

shal violated nghts to a fair trial and allowed speculation,

particularly after instructions that glorified circumstantial

evidence in general without regard to the flimsy and fabri-

cated nature of the evidence adduce in this case. The state

was aware that the issue of plastic contamination was in this

case, and nevertheless did nothing to prove freedom from

this source of contamination. The State Laboratory Crimi-

nologist, after refusing to test promptly, belatedly tested can

#3, Exhibit T, after the disintegration by rusting through was

evident. He denied qualification as a metallurgist and denied

having knowledge of the significance of the disintegration

which was manifested by a shower of rust when he attempted

to strike the can with an awl. The denial of fair trial is com-

pounded by an attempt to claim guilty conduct in the con-

versation with Annie McKeon without subsequent attempt to

prove that no conversations had occurred with an accuser.

This element of proof was totally lacking and the jury was

permitted to speculate that if the state was claiming that this

was a spontaneous utterance, the defendant and not the state

now has to present evidence to explain. This is the equiva-

lent of an attempt to create a presumption. Presumptions that

A36

call for explanations by the defendant are unconstitutional,

and not only violate the fair trial requirement, but also the

presumption of innocence demanded by the Fifth Amend-

ment. Fair requests to charge were filed and ignored and not

granted and without explanation and without any instruction

that led to a jury evaluation of the weaknesses presented by

the State's case. The refusal to touch upon the issues which

were presented in more ways than one to the trial judge is

"plain error".

Where it can not be said that a rational trier of fact

could find guilt beyond a reasonable doubt, then, a convic-

tion cannot "constitutionally stand" as it is violative of due

process under the fourteenth amendment. Jackson v. Virgin-

ia, 443 U.S. 307, 317-8, 99 S.Ct. 2781, 61 L.Ed.2d 560

(1979). "The Constitution prohibits the criminal conviction

of any person except upon proof of guilt beyond a reasonable

doubt." Jackson v. Virginia, 61 L.Ed.2d at 567.

A37

6. Excerpts of testimony of fire marshal in trial court.

(p244)

Q. - Under conditions where you have bulbs that are not

protected by wire cages, would you as a fire inspector cau-

tion against permitting any stored materials wrapped in paper

or plastic from coming in contact with or being placed in an

area close to light bulb surfaces?

A. Yes, sir. Not just plastics, anything. Anything com-

ing in contact. .....

(p245)

Q. Now, when heat is high in the room and it's in the

form of gaseous vapors or air or whatever, will gaseous va-

pors give off radiant heat?

A. No.

Q. You do not believe that hot gas will give off heat that

radiates?

A. Well, heat that radiates, yes, it doesn't give off radiant

heat.

Q. Well, does it give off--

A. It's hot, yes.

Q. And will it give off and emit heat in the form of radi-

ation?

A. The products of combustion, carbon monoxide, hot

gases, uncombusted particles are hot, yes.

Q. Any hot substance, whether it's gas liquid or solid can

give off heat by radiation, isn't that true or don't you know?

A. Well, you use the term radiation. Not everything

radiates heat.

Q. Do you believe that gases will not radiate heat?

A. You used the word radiate, hot gases are hot, (p246)

yes.

Q. All right. Will hot gases at the ceiling radiate heat

onto a floor surface?

A38

A. No, sir. I don't believe so. The floor surface is going

to absorb heat but the only thing that is going to radiate heat

is the fire.

Q. I'm speaking specifically of this fire, yes, sir. We

have hot gases in this fire there's no doubt about it but they're

not radiating heat.

Q. I'm asking you about the hot gases, will the hot gases

radiate heat downward?

A. The entire room is hot. The hot gases will start at that

ceiling level and slowly become lower and lower until they

hit the floor level. The hot gases will heat the air in the

room, if that's what you're trying to say.

Q. Well, I'm asking you about heat transfer. Hot gases

will transfer heat by conduction but I'm asking you will they;

emit heat by radiation?

A. No, sir. I have to say no.

Q. Have you read that in any textbook?

A. Not that I recall. You use the word radiation, I don't

think it's a proper word for what you're trying to (p247) de-

scribe it's just not -- it's not correct.

Q. Have you read any textbooks about hot gases causing

char patterns on floors?

A. eae

(p276)

Q. Did you know whether or not radiant heat from either

a ceiling or from gases near the ceiling can cause combustion

of a floor underneath the ceiling?

Radiant heat’?

Yes.

Radiant heat coming from a ceiling?

Yes.

No fire involved? (p277)

I'm talking about a hot ceiling. In this particular case

we have a --

OPO PhS

A39

A. I would say, no. .....

(281)

Q. And if the surface that is burning is a vertical surface

it will give off radiant heat perpendicular to the surface, cor-

rect, that one direction?

A. Yes, sir.

Q. Give off radiant heat that will travel upward in a

straight line?

A. I -- yes.

Q. Will it give off radiant heat that goes downward?

A. I don't know. I'm not a scientist or a chemist. |

mean, we're talking about radiant heat, | don't know the an-

swer to your question. .....

(295)

Q. This is a publication that is published bu the Interna-

tional Association of Arson Investigators, Inc.?

A. Yes. |

Q. Is that an organization which you find to be reliable?

A. Yes.

Q. And there is within this publication an article by John

D. DeHaan?

A. (ee

(297)

Q. This is an article that is entitled, Are Localized Burns

Proof of Flammable Liquid Accelerants? Do you have an

opinion without knowing more than that this article is pub-

lished in the Fire and Arson Investigator and is authored by

John D. DeHaan?

A. Yes, Sir.

Q. Would you concede this is a reliable publication and a

reliable article on the subject matter of investigating fire and

arson?

A. Yes, Sif. ......

(298)

A40

Q. "In a typical room fire in a house the airborne flames

and hot gases fueling them occupy the upper portions of the

room. Period. This mass of hot gases generates a consider-

able amount of radiant heat down onto the floor and stare

surfaces."

Would you concede that that is a correct statement if

it was made by John D. DeHaan?

A. Yes.

~~ The language figure one illustrates fire involve-

ment at various levels of the room are non-combustible sur-

faces like concrete such heat can induce spalling. Even on a

fleor where there is no other fuel when they one may observe

charring, burning or spalling except where it is protected

from overhead exposure from shelves, furniture, carpets,

books or fall down debris from earlier (299) stages of the fire

or structural collapse. Do you agree with that statement?

MB. TOR. wens

Q. Fire Marshal, you have in front of you an article

which has been provided to you since the last question which

is from a publication entitled, The Fire and Arson Investiga-

tor from the issue September 1987, Volume 38, (304) Num-

ber one and you have an article in that publication that

commended at page 45 entitled, Are Localized Burns Proof

of Flammable Liquid Accelerants?

A. Yes, Sir. .

Q. And that article is it written by one John D. DeHaan?

A. TOR ccs

Q. And is Mr. DeHaan a recognized authority in the sub-

ject matter of fire and arson investigations?

A. i, 2

Q. If Mr. DeHaan said, in respect to radiant heat that in a

typical room fire in a house the airborne flames and hot gases

fueling them occupy the upper portions of the room, this

A4]

mass of hot gases generates a considerable amount of radiant

heat down onto the floor and svair surfaces. Would you agree

with that statement if it was. made by Mr. (305) DeHaan’?

A. Yes, Sir.

Q. If Mr. DeHaan went on to say, “even in normally

fueled fires the radiant heat can be several watts/CM-2 which

quickly raises the temperature of the surface causing char-

ring, pyrolysis, and ultimately combustion of floors." Would

you agree with that statement?

A. Yes, | would.

Q. In the article, is there an illustration made by Mr. De-

Haan?

A. Yes, sir.

Q. And does he give an illustration of a chair and a table

sitting on a floor?

A. Yes, he does.

Q. And does he, in the illustration, show hot gases up

near the ceiling? |

A. He shows hot gases and flames.

Q. Hot gases and flames in the ceiling area?

A. Yes, sir.

Q. And then on the floor does he show areas not pro-

tected by the table which are in flame on the floor?

A. Yes, sir.

Q. And underneath the table and protected from radiant

heat, does he show an area with no flames?

A. Yes, sir.

306)

Q. And the same underneath the chair?

A. Yes, sir.

Q. If Mr. DeHaan said that on non-combustible surfaces

like concrete such heat can induce spalling, would you agree

with that?

A. Yes, I would.

A42

;

Q. If Mr. DeHaan said even on a floor where there is no

other fuel, we may observe charring, burning or spalling ex-

cept where it is protected from overhead exposure from

shelves, furniture, carpets, books or fall down debris from

earlier stages of the fire or structural collapse. Would you

agree with that statement?

A. Yes, I would.

Q. If Mr. DeHaan said in structural -- in the commercial

structures these exposed areas are often well defined by

shelves and stock then a large fire can produce what appears

to be a very carefully laid path down the center of each aisle.

This pattern can be mistaken for a trailer of flammable liquid

as in figure number two. Would you agree?

A. I would agree that he's correct. I would not agree that

this is the situation in this case. .......

(307)

Q. If Mr. DeHaan went on to talk about solid fuel and he

described burning of solids at floor level may arise from

furnishings or stock sitting on the floor from floor covering

or from fall down of burning materials during the fire, you

would agree with that?

A. Yes, | would.

Q. If he said a careful inventory of the scene and inter-

views with firefighters, owners or occupants will help recon-

struct the nature of fuels at the scene before the fire. Would

you agree with that?

A. Yes, I would.

Q. The damaged areas of the floor may then appear to be

associated with the distribution it was those fuels. Would

you agree with that? ;

A. Where is that?

Q. It would be the very next sentence?

A. Yes, that would be a fair sentence.

A43

Q. If Mr. DeHaan then said, it is the isolated deep burn

which generates so many questions. First, let's use, I think it

means us, examine the distribution of a fire around a solid

fuel as it burns. Figure three shows two arrangements of sol-

id fuels, the same surrounding a solid (308) material in con-

tact with the floor will produce localized charring around the

margins of the solid while protecting the floor immediately

underneath until it burns away. Would you agree with that?

A. Yes, sir.

__Q. _ And then if he want on to say free standing solids

generate radiant heat in all directions and can, therefore, pro-

duce more damage immediately underneath the burning fuel?

A. Yes sir.

Q. Would you agree with that?

A. Yes sir.

Q. The localized fuel load provides a hot spot which will

continue to burn as long as there is fuel. Would you agree?

A. Yes, sir.

Q. This produces in its largest scale burn throughs of the

floor immediately under upholstered chairs and beds while

flooring nearby is left relatively intact. Would you agree

with that?

A. Yes.

(309) eer

Q. All right. Fall down sources -- if he went on to say,

fall down sources of fuel can be most illusive for the investi-

gator then sometimes one must be a real detective to track

down the culprits. Would you agree it's a tough job to find

the correct picture ?

A. Yes, sir.

Q. Draperies, particularly cotton/polyester collapsed dur-

ing a fire can cause deep burns. Would you agree with that?

A. Yes.

A44

Q. Painting and other wall mounted decorations, plastic

light fixture, diffuser panels, intercom cabinets, plastic win-

dows and shades, boxes and stock from collapsing shelves

and in later stages wooden structural members of the building

have been seen to produce isolated burns in structure fire ex-

periments conducted by the author.

Would you agree that that's a fair representation by

Mr. DeHaan?

A. I agree it's a fair representation of the test that was

done, yes. ....

(p318)

Q. He gives illustrations in figures seven and eight of

that statement. He goes on to say, "hard edge burns were in-

tentionally charred areas boarded directly on unburned sub-

strates are sometimes described in the literature as proof of

use of flammable liquids.". Do you agree with that state-

ment?

A. Yes sir. ,

Q. And then he goes on to say, "While these burns can

be produced by flammable liquids they have also been pro-

duced by solid fuels burning in contact with the floor."

A. Yes, sir.

Q "Some plastics and synthetic fibers such as polypro-

pylene and foam rubbers melt to a liquid or semi-liquid form

during combustion and may mimic the appearance of a true

flammable liquid burn.". Would you (p319) agree with that

statement/

A. Yes, sir.

(p320)

Q. The introduction to this article, the first paragraph the

last sentence. It says, "Investigators should be suspicious of

isolated low burns but they are not proof of the use of flam-

1 t

mable liquids." Does he say that?

A. Yes, sir. _

A45

(p349)

Q. Is your opinion based upon something that is not

presently in evidence?

A. No, sir.

Q. Is your opinion based solely upon the testimony and

facts that you have related to the jury without any more?

A. Yes, sir.

A46

MAY 11, 1990

REQUEST TO CHARGE

The defendant respectfully requests the court to

charge the jury as follows:

y There is no evidence in this case that the defendant

had exclusive access to the second floor of the premises.

There is evidence that the firemen found the rear door open.

The second floor was available for access for any person

choosing to use that entrance. Proof of defendant's exclusive

access to the second floor is necessary to sustain a conviction

if the State proves that the fire was intentionally set. If you

find that the State has not proven the defendant had exclusive

access by failing to show the rear door was locked to prevent

access to others, you cannot find the defendant guilty beyond

a reasonable doubt.

People v. Marin

65 NY 2d 741

481 NE 2d 556

492 NYS 2d 16 (1985)

(Court of Appeals, New York)

6. Evidence that defendant is said to have been aware

that persons believed he was guilty is not an admission of

guilt, and is not even evidence of consciousness of guilt.

See: People v. Marin, Supra, at

492 NYS 2d, p 19

7. Evidence said to indicate consciousness of guilt is general-

ly considered to be weak proof of commission of crime.

People v. Moses __

63 NY 2d 299, 308

8. Defendant's statements regarding noticing an odor are

not evidence of an admission and are not evidence indicating

consciousness of guilt, because as a threshold matter the

State has not proven the statements to be false even at end.

There is no proof that a qualified electrical expert examined

the premises and ruled out accidental electrical causes of fire.

11. The State has the burden of proving that the fire did

not result from accidental or natural causes and must prove

this by evidence beyond a reasonable doubt.

Arson

5 Am. Jur. 2d 836, fn 16

12. ‘If the State fails to prove the building was intention-

ally set on fire, the presumption is and the law implies that

the fire was the result of accident or some providential cause

rather than criminal design.

5 Am. Jur. 2d 836-7, fn 2

16. I charge you the evidence regarding the taking of

sample #3 does not establish beyond a reasonable doubt the

place from which sample #3 was taken. The Fire Marshal

has identified can #3 as a sample taken from near the east

wall and the State's disclosure to defendant so states. The

Fire Marshal indicated in his testimony that a sketch made

showed sample #3 as taken elsewhere. The location, in any

event, was not measured nor otherwise recorded.

17. If you find that a reasonable inspection by the Fire

Marshal disclosed the presence of an automobile engine cyl-

inder head and that reasonable efforts to identify and record

pertinent information relative to its location, and its actual

packaging and preservation were not made, then you cannot

A48

find that the State has proven beyond a doubt that petroleum

products were not at the location prior to the fire.

18. If the State's evidence supporting a claim that a_ set

fire occurred rests upon proof that evidence can #3 contained

Siloo Diesel Anti Gel before the fire, then the State must also

prove that the can could not have been accidentally contam-

inated by the introduction of molecules into the can prior to

the date of the test. The defendant does not have the burden

of proving the evident corrosion of the can was present be-

fore the date of test. The burden is upon the State to prove

beyond reasonable doubt that the can was whole and not cor-

roded to the point where its integrity was compromised at all

times when contaminating circumstances were present.

21. If you find that the facts in evidence showed that oth-

er competent producing causes of a burn pattern were pres-

ent, you cannot find that the opinion of the Fire Marshal

excluded every reasonable supposition of innocence.

22. _ If you find that at the time the Fire Marshal testified

that he was unaware that hot gases were a competent produc-

ing source of radiant heat or that radiant heat could produce

burn patterns on a floor in patterns caused by shelves or solid

combustible objects on the floor, and that he was mistaken in

regard to known scientific facts, then you shall consider

whether or not his opinion was flawed.

23. I charge you that there is no expert testimony in this

case which connects the findings of the State Forensic Labo-

ratory to a conclusion linking the findings to any claim of

proof that a fire was set on July 7, 1989. This is a matter for

expert opinion only. As lay persons you cannot speculate.

A49

You are not at liberty to conclude that the findings support

the claim of the State.

24. The Fire Marshal was not offered as an electrical ex-

pert on the State's case in chief and his testimony did not re-

veal that a complete inspection of the electrical system was

made by a person qualified as an expert.

AS0

MAY 15, 1990

SUPPLEMENTAL REQUEST TO CHARGE

l. Where the claim is made that circumstantial evidence

supports the claim of the State, the State must produce rea-

sonable evidence to rule out all other causes which are rea-

sonably possible. Failure to do so prevents drawing

reasonable and logical inferences.

Toomey v. Danaher

161 Conn. 204 at 211

ra The state must prove either that the defendant and no

one else had access to the area of the fire or that the defen-

dant was in exclusive control of access to the area (Richards

v Grace-New Haven Hospital, 137 Conn. 508, at 51 1) or that

the defendant had exclusive control over access to the second

floor.

See: Malvicini v. Stratfield Motor Hotel

206 Conn. 439, 445

"Exclusive" control.

4 If open doors and passage of time was sufficient for a

third person to have had access to the second floor, a verdict

must be rendered for defendant. The State has the burden to

prove the impossibility of access by third persons beyond

reasonable doubt. It is not sufficient to prove such access

was unlikely or improbable.

6. There is no competent proof from any witness quali-

fied as an electrical expert that the electrical system on the

second floor of the parts department had been examined and

found to be in good condition.

8. There is no testimony that the findings of the State

Forensic Laboratory in respect of the samples taken from the

AS1

board supported the conclusions of the Fire Marshall. You

will recall that Dr. Hubball limited his expertise to the testing

of materials submitted and to his ability to relate the findings

of the Gas Chromotography, and did not claim to possess the

knowledge necessary to relate the findings to the conditions

found at the scene. There is uncontradicted evidence that the

usage of plastic bags in connection with samples may con-

taminate the results of Gas Chromotography. There is evi-

dence that plastic bags were used, and the extent to which

contamination may have resulted prevents your speculating

in the absence of any attempt by the State to relate the find-

ings of the Gas Chromatography to any finding at the fire

scene by the testimony of expert witnesses. The burden is on

the State to prove the competency of the evidence and to con-

nect up the evidence it has produced.

RE: CIRCUMSTANTIAL EVIDENCE EXCLUSIVE CON

TROL - FIRE CASES

Hubert v. Aztec Brewing Co. 26 Cal App 2d 664, 690, 80

P2d 185, 1016.

Gentleman v. Nadell & Co. 194 Cal App. 2d 545, 17 Cal

Rptr 389.

Verkamp Corp of Kentucky v. Hubbard 296 SW2d 740

Menth v. Breeze Corp 4 NJ 428, 73 A2d 183

Gray v. E.J. Longyear 78 NM 161, 429 P2d 359

FAILURE TO ELIMINATE OTHER CAUSES OF FIRE:

Gallagher's Successor's, Inc. v Consolidated Edison 52 App

Div 2d 547, 382 NYS2d 75.

Clark v. Pennsylvania Power & Light Co. 336 Pa 75, 6 A2d

892 ,

Williams v. Lauderdale 209 Ark 418, 191 SW2d455

Tedrow v. DesMoines Housing Corp 249 Iowa 766, 87

NW2d 463

AS2

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.