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Breaking Legal Developments

10-22-2001

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

 

EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Wisconsin Court Affirms Arson Conviction


(1) WISCONSIN COURT AFFIRMS ARSON CONVICTION

In State v. Dixon, No. 2000-KA-00686-COA, Oct. 16, 2001, the Wisconsin Court of Appeals reviewed the defendant's arson conviction. On October 28, 1997, the fire department was called to a burning property at 200 East Washington Street in Milwaukee. The property consisted of a bar called "Fannie's," which occupied the first floor, and an apartment on the second floor. Dixon owned the building and the bar and maintained her residence in the second floor apartment. It took over twenty firefighters to finally extinguish the fire. Detective Jeffrey Fennig, an arson investigator for the Milwaukee police department, immediately began an investigation. Based on his experience and evidence sent to the state crime lab, Detective Fennig concluded that the fire had been set intentionally. At the time of the fire, Dixon was away from the building, having dinner with friends.

Detective Fennig began interviewing employees and patrons of the bar. These individuals stated that, in the week preceding the fire, Dixon had removed personal property from the bar and her residence and placed them in a storage unit. Detective Fennig also discovered that Dixon was experiencing severe financial problems. Detective Fennig interviewed Dixon, who confirmed that she was experiencing financial difficulties not only with Fannie's, but also with a restaurant she owned named "Mike and Anna's." Dixon admitted that she was presently in a dispute with the I.R.S. over $30,000 in various tax obligations. Dixon also owed the City of Milwaukee approximately $6,000 in unpaid property taxes.

Pursuant to a search warrant issued on November 20, 1997, the police searched Dixon's residence. They seized assorted papers, mail, and financial records. The police also seized two safes. One of the safes was later found to contain various personal documents and three prescription pill bottles containing 274 morphine tablets. Dixon was arrested and charged with one count of arson, one count of possession of a controlled substance, and one count of possession of explosives. A jury ultimately convicted Dixon on the two remaining counts.

Dixon claims that her right to confront the witnesses against her was denied when the trial court allowed preliminary hearing testimony of Johnson and Gutjhar to be read to the jury. The State responds that they made reasonable attempts to produce these witnesses, and, in the alternative, the State argues that if the admission of the witnesses' former testimony denied Dixon her confrontation right, the error was harmless. Assuming arguendo that the State failed to take reasonable efforts to produce these witnesses, we conclude the error was harmless because the testimony was duplicative and Dixon has failed to demonstrate any resulting prejudice.

In regard to the insurance investigator's report, Dixon concludes that "[h]ad the jury heard the insurance company's own expert adjusters conclude that the bar was broken into, the outcome of this trial would have been different." After reviewing this report, we disagree. The report does not state that the bar had been broken into on the night of the fire. The report only indicates that a door at the north entrance of the bar "revealed evidence of forcible entry." As noted by the State, these marks could have existed before the fire or may have been made in the ten days between the date of the fire and the insurance company's investigation.

In addition, evidence of forced entry does not negate the following evidence supporting the verdict: (1) Detective Fennig testified that another door had been left open, the west door, which the detective suspected was the one that the arsonist entered; (2) an employee of Fannie's, Carrie Pocernich, testified that on the night of the fire, Dixon instructed her not to turn on the alarm system although Dixon was normally "fanatical" about security and the alarm; (3) Detective Fennig testified that he saw no evidence of damage to the north door other than old marks, and concluded that the door had not been forced; and (4) David Fass, a firefighter, testified that he had opened the north door, which was unlocked, and observed no signs of forced entry, corroborating Detective Fennig's testimony. Dixon's counsel cross-examined Detective Fennig and Firefighter Fass concerning the north door. Counsel specifically questioned Detective Fennig's conclusion that the north door had not been forced. Given this evidence, the insurance adjuster's observation of evidence of forcible entry to the north door was immaterial. Thus, Dixon has failed to show that counsel's alleged errors were so serious that the defendant was deprived of a fair trial and a reliable outcome.

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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