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Breaking Legal Developments

02-25-2002

Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor
palynch@cozen.com
http://www.cozen.com

 

EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Massachusetts Court Finds Failure to Obtain Defense Expert on Cause of Fire Not to Be Error


(1) MASSACHUSETTS COURT FINDS FAILURE TO OBTAIN DEFENSE EXPERT ON CAUSE OF FIRE NOT TO BE ERROR

In Commonwealth v. Susan Fiore, No. 99-P-597 (Feb. 15, 2002), the Massachusetts Court of Appeals reviewed the defendant's arson convictions. One of her attacks on appeal was she was denied effective assistance of counsel because he did not obtain expert testimony about the cause of the fire.

An ineffective assistance of counsel claim requires the defendant to show that counsel's performance displayed serious incompetency, inefficiency, or inattention -- behavior of counsel falling measurably below that expected of an ordinary fallible lawyer -- and, if found, that such behavior likely deprived the defendant of an otherwise available, substantial ground of defense. Commonwealth v. Saferian, 366 Mass. 89, 96 (1974). An attorney's tactical decisions amount to ineffective assistance of counsel only if they were manifestly unreasonable when made. Commonwealth v. Martin, 427 Mass. 816, 822 (1998). Counsel can be found to be ineffective when he or she fails to challenge a crucial aspect of the Commonwealth's case. Id. at 822-823.

Here, the defendant has failed to show that an expert witness would have testified to anything different from the expert testimony presented by the Commonwealth. More specifically, there was no evidence before the court that expert testimony would have assisted or supported the defendant's theory of the case, and thus the defendant has not established that the failure to present expert testimony deprived him of an otherwise available, substantial ground of defense. The defendant's counsel was therefore not ineffective at trial by failing to present expert testimony on the cause of the February 12, 1995, fire.

The court did find error as to other arson charges. Admissibility of John's letter as a statement against penal interest. The defendant claims the judge committed error in ruling that the statement in John's letter that he "may" have set the February 12 fire was not admissible because it did not meet the requirements of a statement against penal interest.

In Commonwealth v. Drew, 397 Mass. 65, 73-78 (1986), the Supreme Judicial Court reviewed the requirements for admissibility of statements against interest. A statement is admissible if (1) the declarant's testimony is unavailable; (2) the statement so far tends to subject the declarant to criminal liability that a reasonable person in his position would not have made the statement unless he believed it to be true; and (3) the statement, if offered to exculpate the accused, is corroborated by circumstances clearly indicating its trustworthiness. Id. at 73, citing United States v. Thomas, 571 F.2d 285, 288 (5th Cir. 1978).

Here, the first test regarding admissibility was met because John's testimony was unavailable as a result of his invoking the Fifth Amendment. Commonwealth v. Hesketh, 386 Mass. 153, 158 n.4 (1982). Commonwealth v. Drew, supra.

In regard to the second requirement, the Commonwealth argues that John's statement in the letter that he "may of [sic] been the cause of the fire" would not have subjected him to criminal prosecution because, at most, the statement demonstrated negligence, not criminal intent.

John's statement need not have been a "direct admission of guilt," Commonwealth v. Drew, supra at 74, quoting from Commonwealth v. Keizer, 377 Mass. 264, 270 (1979), because the rule encompasses "disserving statements by a declarant that would have probative value in a trial against the declarant." See Commonwealth v. Drew, supra, quoting from United States v. Thomas, 571 F.2d at 288.

Here, John's statement satisfied the second test for admissibility as a statement against penal interest because it tended to subject him to criminal liability and "any reasonable person in his position would have known as much, and for that reason would not have made the statement without believing it to be true." Commonwealth v. Tague, 434 Mass. 5l0, 516 (200l).

Finally, the court concluded that John's statement was properly corroborated and therefore meets the third test for admissibility. "In applying 'the corroboration requirement, judges are obliged to exercise a discriminating judgment'. . . ." Commonwealth v. Charles, 428 Mass. 672, 679 (1999), quoting from Commonwealth v. Carr, 373 Mass. 617, 624 (1977). "[I]n evaluating whether a statement is adequately corroborated, a court should 'not be stringent.'" Commonwealth v. Charles, 428 Mass. at 679-680, quoting from Commonwealth v. Drew, 397 Mass. at 75 n.10. "If the issue of sufficiency of . . . corroboration is close, the judge should favor admitting the statement" and rely on "the good sense of the jury [to] correct any prejudicial impact." Commonwealth v. Charles, 428 Mass. at 680, quoting from Commonwealth v. Drew, supra. See Liacos, Massachusetts Evidence 8.10, at 519 (7th ed. 1999).

Here, the Commonwealth's evidence disclosed that the February 12 fire started in the basement. Although the Commonwealth's expert opined that the fire was started with an accelerant, no trace of one was found. There was no evidence that placed the defendant in the basement prior to the fire. Further, Karena Fiore, the defendant's daughter, testified that she saw her father (John) coming up from the basement shortly before the fire was discovered. Thus, based on the independent evidence introduced at trial, John's statement was sufficiently corroborated, and there was "some reasonable likelihood that [his] statement could be true." Commonwealth v. Charles, 428 Mass. at 680, quoting from Commonwealth v. Drew, 397 Mass. at 76. Therefore, John's statement was admissible as a statement against his penal interest and it was error for the judge to exclude it.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), palynch@cozen.com (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.

Please direct comments, suggestions, stories, and other items to the author by e-mail at palynch@cozen.com

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