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Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Wisconsin Court Affirms Arson Conviction Over Claim of Newly Discovered Evidence
  2. Eighth Circuit Upholds Striking of Expert Testimony
  3. California Supreme Court Finds Intoxication Not a Defense


In State v. Block, No. 00-0053-CR, (March 6, 2001), the Wisconsin Appellate court reviewed the defendant's arson conviction. Milwaukee police officers were dispatched to the warehouse where the defendant worked to arrest him for a probation violation. Before the officers were able to arrest him, he hid in a storage room inside the warehouse. He persuaded one of his co-workers to lock the doors behind him, and the storage room was padlocked from the outside.

The officers were informed of his hiding place, and banged on the doors calling for him to come out. The officers heard him yell at them to go away. One of the officers pried off the padlock with his baton and the officers again called for him to come out. After receiving no answer, the officers started to open the doors. At that moment, they heard a hissing noise and a flame shot through the gap around the partially opened doors. The officers tried again to open the doors without success. They then noticed liquid pouring from under the doors, forming a puddle at their feet. The liquid smelled like gasoline and suddenly ignited, forcing the officers to move back from the doors. The warehouse's ceiling caught fire, endangering the police officers in the warehouse. The officers then contacted the fire department. The defendant eventually ran from the room and struggled with the officers before he was subdued and placed under arrest.

At trial, the State presented evidence that he had used an oxyacetylene torch to produce the flame the officers observed around the door. The State also claimed that the defendant had poured the gasoline under the door and caused it to ignite. He, however, claimed that the fire was an accident. He asserted that while moving around the storage room in the dark, he accidentally knocked over the gas can, and when he lit his cigarette lighter to see what he was doing, the lighter ignited the gas, causing the fire. The jury found him guilty on all counts.

The defendant first points to the fire company's "Alarm Report," a document not discovered until after his trial. The report indicates that, when the firemen arrived on the scene, they heard the hiss of propane gas leaking from some form of container inside the storage room. He theorizes that the leaking propane tanks, and not an oxyacetylene torch, accounted for the hissing noise the officers heard just before the flame appeared from within the storage room. He asserts that the company alarm report also states that, in extinguishing the fire, over five hundred gallons of water were released from fire hoses at a pressure of 150 pounds per square inch, causing items to be moved around from their original location. Additionally, he notes that the detectives, in examining the room immediately after the fire was extinguished, also disrupted the evidence. Thus, he submits that the State's circumstantial evidence that he started the fire is suspect.

The defendant also points to the testimony, offered by one of the firemen at the post conviction motion hearing, that it would not be unusual for two to three foot flames to shoot through the cracks around the storage room door if someone tried to open it while the room was on fire. Finally, he also offers, as newly discovered evidence, a videotape demonstrating that the type of torch found in the storage room will not produce a flame as large as the one observed by the officers, and a new gas can which, he contends, "establishes that the can in the storage room was on its side when the fire melted it down." The defendant concludes that these various pieces of evidence satisfy the criteria entitling him to a new trial. The court disagreed.

Even if the court were to determine that the "new evidence" proffered by the defendant satisfied the first four criteria, it failed to satisfy the fifth. The court agreed with the circuit court that "the most compelling testimony that the jury heard, and what remains . . . the testimony that best explains what happened here on the day of the offense, is the testimony of the officers who were on the scene." All seven of the officers testified that the defendant was locked in the storage room and refused to come out, and that when one of the officers broke the padlock on the doors and attempted to open them, a flame came shooting out from behind the door in between the partially opened door and the door frame. One of the officers testified that he was familiar with acetylene torches and he concluded, based on the hissing noise coming from behind the door and the shape of the flame itself, that he was using an acetylene torch to keep the officers at bay. Several of the officers also testified that the flame did not pour from behind the door as if the entire room was on fire, but seemed to come from a single source that traced the opening between the door and the door frame. The officer who attempted to open the door also testified that neither the door nor the doorknob was warm, as they would be if the entire room was on fire. The officers also related how they observed a liquid that smelled like gasoline pouring out from under the door that suddenly ignited.

Other testimony established that after the fire was extinguished, the officers discovered an oxyacetylene torch inside the room. Finally, the detective sent to investigate the scene examined the pour patterns created by the accelerant and the burn pattern created by the fire. The detective testified that he could not find any evidence - loose wires, electrical sockets, etc. - that the fire was caused accidentally. He concluded that the accelerant had been poured in front of the doors and that, based on the charred beams on the ceiling immediately in front of the doors, the fire had started at that spot.

Further, other evidence overwhelmingly contradicted claims that the fire was accidental. Specifically, he never told the police, when questioned four days after the incident, that he had accidentally knocked over the gas can. Also damaging his contention that the fire was accidental is his admission that he stored the gas cans on shelves in the corner of the room or under a table along the wall, not in the middle of the floor of the storage room, where he claimed he tripped over the can. Thus, while some of his "new evidence" may have supported his defense, there remains overwhelming evidence against him.


In J.B. Hunt Transport, Inc. v. General Motors Corp., No. 99-4206 (March 13, 2001) (PDF viewer needed), the Eighth Circuit reviewed a district court order rejecting the testimony of two experts. The case involved multiple vehicle collision involving a 1991 Camaro, Toyota Corolla, a tractor trailer and a Crown Victoria. The plaintiff filed suit against the tractor trailer company. That company then sued GM alleging the Camaro's front seat was not crash worthy.

The court allowed the plaintiff's expert to initially testify about a three impact collision. However, once he conceded he had insufficient information to reconstruct the accident his testimony was stricken. The expert stated his opinion was based on his examination of photographs taken of the involved vehicles. The court ruled the uncontradicted eye witness testimony established the tractor trailer hit the car twice, excluding the expert's testimony because he could not scientifically reconstruct the accident and it was inadmissible in light of Daubert v. Merrell Dow Pharm, Inc. (1993) 509 U.S. 579. A derivative expert who relied on the first expert's three impact testimony was also excluded. The Eighth Circuit agreed finding unlike the defendant's accident reconstructionist, whose testimony utilized the testimony given by other witnesses, Wallingford's three impact theory was premised primarily upon his impressions of the photographs of the scratches in the paint of the vehicles involved in the accident. He also admitted he had insufficient evidence to completely reconstruct the accident. Hence, the district court was correct in striking the testimony.


In People v. Atkins, Case No. S082662 (March 12, 2001), the California Supreme Court issued its long awaited opinion discussing intoxication as a defense to a charge of arson of forest land. The defendant was convicted by a jury of arson of forest land. The trial court rejected his voluntary intoxication defense finding arson was a general intent offense. The Third Appellate District had reversed his conviction. The California Supreme disagreed with the Court of Appeals and affirmed the trial court's order finding the crime was a general intent offense making intoxication evidence inadmissible.

The defendant told his friends he hated another man and would burn his home down. He drove by and made an obscene gesture at the man. He then drove into a canyon near the man's home. A fire was later discovered that came within 150 feet of the house. An investigator determined the fire was arson and confirmed by a sample showing an accerlant was used. Found nearby was the defendant's wallet, beer cans and a lighter. When interviewed the defendant admitted starting a fire to burn weeds that escaped his control. He also contended he was intoxicated.

The California Supreme Court held arson requires only a general criminal intent and that the specific intent to set fire to or burn or cause to be burned the relevant structure or forest land is not an element of arson. As relevant here, the proscribed acts within the statutory definition of arson are to: (1) set fire to; (2) burn; or (3) cause to be burned, any structure, forest land, or property." ( 451.) Language that typically denotes specific intent crimes, such as "with the intent" to achieve or "for the purpose of" achieving some further act, is absent from section 451.

"A crime is characterized as a 'general intent' crime when the required mental state entails only an intent to do the act that causes the harm; a crime is characterized as a 'specific intent' crime when the required mental state entails an intent to cause the resulting harm." The statute did not require an additional specific intent to burn a "structure, forest land, or property," but rather required only an intent to do the act that causes the harm. This interpretation is manifest from the fact that the statute is implicated if a person "causes to be burned . . . any structure, forest land, or property." Thus, the intent requirement for arson fits within the definition of general intent, i.e., the description of the proscribed act fails to refer to an intent to do a further act or achieve a future consequence.

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), (e-mail),, emergency loss assistance - pager (619) 333-2713.

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