# Petition for Writ of Certiorari — Gray v. Connecticut > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_1112%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 506 U.S. 872 ## Text f Bupreme Court, US, FILED 9.9- DY 5Q | a6 - DFFICE OF THE CLERK In The Supreme Court of the United States October Term, 1992 a 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, 23 21 oe me 17,22,23 25,28,29 24 18,19 17 19 24 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, aa Appendix p. A27. V1 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- 10 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 1] 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. 12 (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. 14 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. 15 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. 16 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 17 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 18