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People v. Bailey, Docket No. 8552 (Mich. Ct. App. Aug. 28, 1972)

Factual and Procedural Background

James L. Bailey was charged by a two-count information with arson, MCLA 750.72; MSA 28.267, and wilfully burning his home with intent to injure and defraud his insurance company, MCLA 750.75; MSA 28.270. A jury convicted Bailey on both counts. He was sentenced from 8-1/2 to 20 years on the arson count and 5-1/2 to 10 years on the insurance-fraud count. Bailey appealed as of right.

Legal Issues Presented

  1. Whether the prosecution established the corpus delicti of the crimes charged.
  2. Whether evidence obtained by the investigating officer should have been suppressed because it was obtained without a search warrant (Fourth Amendment claim, reliance on Camara v. San Francisco and See v. Seattle).
  3. Whether a mistrial was required due to alleged prosecutorial misconduct in closing argument (including comments the defendant characterizes as a reference to his failure to testify and remarks implicating a witness as a conspirator).
  4. Whether the trial court erred in denying the pretrial motion to quash the second count (willful burning to defraud insurer) for insufficiency of evidence relating to an insurance claim/proof of loss.
  5. Whether the trial court erred in denying the pretrial motion to strike aliases from the information.
  6. Whether certain testimony admitted at trial was prejudicial and entitled the defendant to relief.

Arguments of the Parties

Defendant's Arguments

  • The prosecution failed to establish the corpus delicti of arson and the related insurance-fraud charge.
  • All evidence obtained by the investigating officer should have been suppressed because it was gathered without a warrant, relying on Camara v. San Francisco and See v. Seattle.
  • The prosecutor's closing argument contained impermissible references to the defendant's failure to testify and other misconduct requiring a mistrial.
  • The second count (insurance fraud) should have been quashed for insufficient proof that a claim/proof of loss was presented to the insurer.
  • The information contained multiple aliases that should have been stricken.
  • Certain testimony admitted at trial was introduced solely to prejudice the defendant and warranted reversal.

People's (Prosecution) Position

  • Physical and expert evidence negated accidental causes and, combined with evidence of motive, opportunity, conduct and statements by the defendant, established the corpus delicti.
  • Camara and See govern inspections of occupied dwellings and places of business; here the house and contents were destroyed by fire and no Fourth Amendment invasion of privacy or security occurred by investigating the destroyed premises.
  • Prosecutorial comments were either curable by instruction or were supported by the evidence; where defense counsel declined an instruction regarding the defendant's failure to testify, any error was waived.
  • Evidence at the preliminary examination and trial (correspondence from the insurer, a letter from the defendant, an adjuster providing proof-of-loss forms, and testimony that proof-of-loss forms were filled out) supported the insurance-fraud count.
  • The court properly left on the information aliases the defendant had used and struck other names; no prejudice resulted.
  • The challenged testimony did not prejudice the defendant in a manner warranting reversal.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
People v. Porter, 269 Mich. 284, 292 (1934) Arson often involves secrecy; corpus delicti and guilt may rest on conduct and statements when physical evidence is inconclusive. Used to support that, where arson is secretive and defendant was alone, evidence of conduct and statements can establish corpus delicti; court found Porter persuasive in this case.
Camara v. San Francisco, 387 U.S. 523; 87 S Ct 1727; 18 L Ed 2d 930 (1967) Occupied dwellings may not be inspected for ordinance violations without a warrant (Fourth Amendment protection of privacy and security). Court distinguished Camara because the premises here were destroyed by fire and thus not an occupied dwelling; concluded no Fourth Amendment invasion occurred from investigating destroyed premises.
See v. Seattle, 387 U.S. 541; 87 S Ct 1737; 18 L Ed 2d 943 (1967) Applies Camara principles to places of business as well as dwellings. Court noted See extends Camara to places of business but held both inapplicable to destroyed premises in this case.
People v. Alexander, 26 Mich. App. 321 (1970) Prosecutorial comment on absence of contradiction by the defense can be error but may be cured by appropriate jury instruction. Cited for the proposition that a curative instruction can remove potential prejudice; here defendant refused an instruction, so the court treated the refusal as a waiver of the cure.
People v. Lawrence, 32 Mich. App. 591, 593 (1971) Trial tactics by defense counsel that interfere with rights may result in the defendant being held to have acquiesced in those tactics. Applied to hold that by refusing the instruction about the defendant's failure to testify, defense counsel waived the potential cure and the defendant cannot complain on appeal.
People v. Mason, 10 Mich. App. 404, 407 (1968) Prosecutorial remarks that are supported by evidence are not reversible error. Court relied on Mason to conclude that the prosecutor's remark suggesting Gordie Johnson was a knowing conspirator was not wholly unwarranted by the evidence and thus not reversible error.

Court's Reasoning and Analysis

The court reviewed expert testimony and other proofs presented at trial. Experts excluded a variety of accidental causes (lightning, furnace, fuse box or other electrical sources, lamps or lamp cords, stove, explosion, careless smoking, Christmas tree lighting, pets, couch and chair) and located the point of origin in the northeast corner of the living room with residue consistent with stored newspapers. The people also offered evidence of motive and opportunity (financial trouble, increased insurance coverage shortly before the fire, statements and conduct suggesting consciousness of guilt, attempts to influence witnesses, inconsistent statements about insurance, and presence alone shortly before the fire).

Applying People v. Porter, the court concluded that where arson is secretive and physical evidence is inconclusive, the defendant's conduct and statements together with proof negating accidental causes may constitute sufficient proof of corpus delicti. The court found the combined physical/expert evidence and the circumstantial evidence of motive and opportunity sufficient to establish corpus delicti.

On the Fourth Amendment issue, the court distinguished Camara and See because those cases protect privacy in occupied dwellings and places of business; here the house and its contents were destroyed by fire and were not suitable for occupation or business. The court found no invasion of privacy or security from investigation of destroyed premises and therefore no Fourth Amendment violation.

Regarding alleged prosecutorial misconduct in closing argument, the court acknowledged the prosecutor's remarks could be read as commenting on the defendant's failure to testify. However, the court emphasized that defense counsel expressly requested that the court not instruct the jury on the defendant's failure to testify; because an instruction would have cured any possible prejudice (see People v. Alexander), defense counsel's refusal constituted a waiver under the principle cited in People v. Lawrence. Consequently, the defendant could not complain on appeal. The court further held that the prosecutor's remark suggesting Gordie Johnson's knowing participation was not wholly unwarranted by the evidence and therefore not reversible under People v. Mason.

As to the second count (insurance-fraud), the court reviewed preliminary-examination testimony and documentary evidence (a letter advising the defendant the claim was under investigation, a letter from the defendant indicating he had filed a proof of loss, and testimony that proof-of-loss forms were filled out) and concluded there was sufficient evidence to sustain that count.

On aliases, after a hearing the trial court retained aliases shown to have been used by the defendant and struck the rest; the appellate court found no prejudice and affirmed that ruling.

Finally, the court considered the defendant's claim that five instances of testimony were admitted solely to prejudice him. The defendant did not demonstrate prejudice nor cite authority supporting reversal; the appellate court reviewed the testimony and found the claim without merit.

Holding and Implications

Holding: The judgment of conviction was affirmed.

Implications: The direct effect is that the jury verdicts and the sentences (8-1/2 to 20 years on the arson count and 5-1/2 to 10 years on the insurance-fraud count) were upheld. The court's decision rests on (1) allowing circumstantial and conduct-based proof to establish corpus delicti in a secretive arson, (2) distinguishing Fourth Amendment warrant cases involving occupied dwellings or businesses from investigations of destroyed premises, and (3) treating defense counsel's refusal of a curative instruction as a waiver of any claim arising from prosecutorial comment. The opinion does not discuss broader doctrinal changes or announce a new controlling precedent beyond its application of existing authorities to the facts of this case.

Disposition: Affirmed.

PEOPLE v. BAILEY

T.M. BURNS, J.

The defendant was charged in the prosecutor's two-count information with the crimes of arson, MCLA 750.72; MSA 28.267, and the wilful burning of his home with the intent to injure and defraud his insurance company, MCLA 750.75; MSA 28.270. The jury found the defendant guilty of both charges, and he was sentenced from 8-1/2 to 20 years on the first count and 5-1/2 to 10 years on the second count. Defendant appeals as of right.

Defendant contends that the prosecution never established the corpus delicti of the crimes charged.

Expert testimony at the trial revealed the following: (1) the fire was not caused by lightning because the day was clear and cold; (2) the greatest damage from the fire was in the living room; (3) on the day of the fire, the kitchen stove was functioning normally; (4) defendant's furnace was not the cause of the fire nor was the fuse box, any electrical source or outlet, the living room lamp or lamp cord, nor was any explosion the cause of the fire; (5) the dogs which died in the fire could not have caused the fire by biting on the electrical cords; (6) the lighting fixtures on the Christmas tree in defendant's living room did not cause the fire; (7) careless smoking or neglect was not the cause; (8) the northeast corner of the living room was the point of origin of the fire, and there was a considerable amount of white ash in the corner which would be the residue of the newspapers defendant generally stored there; (9) electrical equipment in that corner did not cause the fire; and (10) the living room couch and chair were not the source of the fire.

In addition, the people offered proofs to establish that defendant was in financial trouble; defendant was in the house alone some 10 to 20 minutes before the fire started; defendant had stated that if a fire occurred in his house, he would need a good alibi; defendant tried to persuade witnesses not to testify against him; defendant was aware that the home was covered against fire loss, but told officers on the scene that he didn't know whether he had insurance or not; defendant changed fuses in the fuse box after the fire as a "joke" on the investigating officer; defendant attempted to get a woman to go to Florida with him when he received the insurance proceeds; defendant almost doubled the insurance coverage not long before the fire; defendant stated that all he had left were the clothes on his back when in fact he had left clothing with a friend out of state prior to the fire; and that defendant had stated that if you want something done right, you had to do it yourself.

In People v. Porter, 269 Mich. 284, 292 (1934), the Supreme Court stated:

"The crime of arson is so peculiarly one of secrecy that often the only evidence of the unlawful character of the fire is found in the acts and admissions of a person having opportunity and motive. This is such a case. Defendant was alone in the house. Only she knew whether the fire was innocent or evil. If evil, she set it. The only means of determining the character of the fire, aside from inconclusive physical evidence, were her conduct and statements and their consistency with innocence or guilt. Both the corpus delicti and defendant's guilt rested upon the same state of facts and the evidence could not be separated to permit the proof of one without also proving the other."

It is our opinion that the evidence tending to show motive and opportunity, together with the evidence negating accidental cause, is sufficient to establish corpus delicti.

Defendant next contends that all of the evidence obtained by the investigating officer should have been suppressed because the evidence was obtained without benefit of a search warrant. Defendant relies on Camara v. San Francisco, 387 U.S. 523; 87 S Ct 1727; 18 L Ed 2d 930 (1967), and See v. Seattle, 387 U.S. 541; 87 S Ct 1737; 18 L Ed 2d 943 (1967).

In Camara, the Court held that occupied dwellings could not be inspected for ordinance violations without a warrant. The Court in See applies the Camara decision to places of business as well as dwellings.

In the instant case we are dealing with neither an occupied dwelling nor a place of business. The house and contents were destroyed by fire and were no longer suitable for any purpose. In Camara, supra, at 528, it is stated:

"The basic purpose of this [Fourth] amendment, as recognized in countless decisions of this Court, is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials."

We see no invasion of defendant's privacy or security as a result of the investigation of the destroyed premises. There was no violation of defendant's Fourth Amendment rights as a result of the investigation.

Defendant next contends that the trial court should have granted a mistrial due to prosecutorial misconduct during closing argument. The statement complained of reads as follows:

"You can't say, `Well, how that fire started, whether or not he lit it with a match or used a wick or used an accelerant, or what he did in that corner was not proven by the people, and therefore, you can't convict him.'

"We will never know unless Gordie Johnson or someone were to tell us. We will never know unless the defendant — he testified at preliminary examination — can be shown to be guilty by his inconsistent statements and his conduct that was totally inconsistent with innocence."

It is defendant's position that the above comments constitute an impermissible reference to the fact that defendant did not testify at trial.

In People v. Alexander, 26 Mich. App. 321 (1970), a factually similar incident occurred as is complained of here. This Court stated at 324-325:

"Defendant also asserts that it was error for the prosecutor on final argument to state that no contradiction to the people's testimony has been offered by the defense, and further to state that, `[a]nd he, as we stand here, appears alone fully to know what happened, that is, the defendant Alexander.' We agree. MCLA § 600.2159 (Stat Ann 1970 Cum Supp § 27A.2159). However, where, as here, the court fully covers the point in its instruction to the jury, potential prejudice is thereby cured."

In the instant case defense counsel demanded that the court not instruct the jury on the fact that the defendant had not become a witness at trial. This left the court with no way to cure any error that might have been committed by the prosecutor.

The courts have long recognized that trial tactics of the experienced criminal attorney play a large role in the conduct of defendant's case. The courts have also recognized that where such trial tactics interfere with the defendant's rights, the defendant is held to have acquiesced in such tactics. See People v. Lawrence, 32 Mich. App. 591, 593 (1971). In the instant case since any error that might have been committed by the prosecutor could have been cured by an instruction and since defendant's counsel waived the instruction, the defendant is held to that waiver and cannot complain of the error.

Defendant also contends that the prosecutor's remarks in the closing argument constituted error in that they alleged that witness Gordie Johnson was a knowing conspirator with the defendant in burning defendant's home. Our review of the evidence reveals, however, that the prosecutor's remark was not completely unwarranted by the evidence. The remark does not, therefore, constitute reversible error. People v. Mason, 10 Mich. App. 404, 407 (1968).

Defendant next argues that the trial court erred in denying the defendant's pretrial motion to quash the second count of the information.

The second count of the information was knowingly burning insured property with intent to defraud insurer. A review of the testimony at preliminary examination discloses that sometime in January of 1969 the defendant was told by the president of his insurance company that his claim would not be considered because the fire at his home was being investigated. The letter from the defendant to the insurance company stating that the defendant had filed a proof of loss was received in evidence and read into the record. Furthermore, an insurance adjuster of the defendant's insurance company met with the defendant and gave him forms upon which to present a proof of loss. Additionally, Betty Johnson, the wife of Gordon Johnson, testified that on the night of the fire, the defendant and his wife sat in two separate rooms at her home filling out proof of loss forms for the fire at their home. The trial court considered all this evidence and concluded that there was sufficient evidence going to a violation of MCLA 750.75; MSA 28.270. A review of the evidence presented would justify the trial court's conclusion that a valid claim and proof of loss had been presented to the defendant's insurance company. As such, it would appear that the defendant's issue on this point is not meritorious.

Defendant next contends that the trial court erred in denying the defendant's pretrial motion to strike all aliases from the information.

The original information filed against the defendant read as James Larriemore Bailey a/k/a James L. Bailey a/k/a James Larriemore a/k/a Jack Albert a/k/a Jay Baldwin a/k/a Jim Crane a/k/a Jonathan L. Bailey. The trial court, after a full hearing on the motion to strike the aliases, found that the defendant had used certain aliases in the past and agreed to leave those aliases on the information and strike all others.

In our opinion the trial court's action was proper. It was established at trial that defendant had purchased the home under an alias. All of the names not used by defendant were struck from the information. We find no prejudice.

Defendant finally claims that the trial court erred by admitting into evidence testimony claimed to be prejudicial. Defendant here points to five separate instances where testimony was introduced solely to prejudice the defendant in the eyes of the jury. Defendant has not shown how he was prejudiced not has he cited any authority to support his position. We will only say, therefore, that we have reviewed all of the testimony in question and find this issue to be without merit.

Affirmed.

All concurred.

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PEOPLE v. BAILEY
(Aug 28, 1972)