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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 Finds Evidence Sufficient for Arson Conviction


In State v. Chu, No. 01-1934-CR (March 26, 2002), the Wisconsin Court of Appeals reviewed the defendant's arson conviction. Chu argued that he was wrongfully subjected to racial stereotyping when the prosecutor referred to his Korean culture. He presented four additional arguments, relating to exculpatory evidence, sufficiency of the evidence, ineffective assistance of counsel and the trial court's admission of evidence.

Chu's convictions relate to a January 4, 1998, fire at one of several dry cleaning stores owned by Chu's parents, So Man and Sun Hee. The fire destroyed part of the building, as well as some machines and dresses that were in the store. Chu, who was a seventeen-year-old high school student in January 1998, often worked at the stores.

According to Belinda and Jeff VanDeLeygraaf, who lived in the house next to the store, a small car playing loud music pulled into the store driveway at approximately 8 p.m. The VanDeLeygraafs both testified that they saw three or four individuals near or in the car.

The VanDeLeygraafs saw an Asian male exit the store through the overhead garage door and get into the car. Then, the four individuals drove away. Jeff testified that he recognized the man as someone who drove the delivery van for So Man.

At approximately 8:30 p.m., two citizens driving past the store observed that it was on fire. They went to the VanDeLeygraafs' home and asked them to call 911. Officer Jeffrey Gross of the City of Appleton Police Department was dispatched to the store.

Upon arrival, Gross observed an open window on the eastside of the building. The fire ultimately was extinguished, but not before it caused substantial damage to the building and property inside, including machines and dresses. Law enforcement began an investigation to determine the cause of the fire. Investigators found no sign of forced entry and concluded that the open window indicated an attempt to the keep oxygen in the building so that the fire would burn.

Eugene Reece, Deputy Fire Chief for the City of Appleton and one of the State's arson experts, testified that he and his team of investigators eventually ruled out electrical appliances, spontaneous combustion of chemicals, sunlight and accidental factors as causes of the fire. Reece's opinion was that the fire was intentionally set. Daniel Hughes, an independent fire investigator and another of the State's arson experts, held the same opinion.

At the scene of the fire, Randy Cook, an investigator with the police department, discovered financial and court documents which prompted him to investigate a possible financial motive for the fire. Julie Russell, financial investigator for the police department, testified that So Man's business was in serious financial trouble in 1997. There were times in 1997 when So Man's business checking account was $30,000 overdrawn. Additionally, So Man did not make the $7,100 mortgage payment on his business for December 1997. There were also $87,000 in judgments against So Man, and the Wisconsin Department of Revenue had issued warrants against So Man for not paying taxes.

Cook's investigation further revealed that So Man took out an additional $80,000 in insurance on his business two days before the fire. So Man ultimately submitted a claim to his insurance company for $499,030 in losses, which included $82,732 of bridal inventory, including tuxedos and dresses averaging about $400 apiece. None of the witnesses, however, saw any tuxedos in the store, and only thirty-nine hangers containing burned dresses were found at the scene, compared to the 400 to 500 that So Man claimed were there. Some of the wedding dress tags that were not destroyed revealed that the dresses were obsolete and had been purchased at a low cost.

Additionally, the room where the dry cleaned clothing usually hung from the ceiling was virtually empty. Outside, the investigators found the customers' clothing stored in one of the store's delivery vans.

Ultimately, Chu was charged, as a party to a crime, with committing arson of both a building and property with the intent to defraud an insurer. The State's theory was that So Man and Chu planned the fire because So Man needed insurance money to recover from his financial difficulties. The State said that Chu set the fire when he and three other teens went to the store at approximately 8 p.m., and that the VanDeLeygraafs saw him exit the building. In its opening statement, the State suggested that Chu's motive for helping his father was twofold. First, the State said Chu was devoted and loyal to his father, "particularly, because of his Korean culture." Second, the State said that Chu expected to someday take over the business.

The State also introduced two witnesses who said that Chu told them that he set the fire. Joanne Weiss, the owner of the house where Chu lived in the summer of 1999 and a "surrogate mother" of sorts to Chu, testified that Chu admitted to her that he had been involved in the fire. She explained that "he didn't come right out and say, I set fire to the building, but he had taken measures for the business to burn down. . . . Dale said his dad had told him what to do." She said that Chu told her that the business was failing and that they wanted to put in a bridal shop, but they needed the money to do so.

Nicholas Wales testified that he attended a party with Chu days after the fire. Wales said that Chu told him he burned down the store. Wales said Chu explained that he did so because his father was "hurting for money," had taken out a big insurance policy and had asked his two sons, Chu and Jay, and several others to burn the store. Wales also testified that a month or two later, Chu told him that he was nervous he was going to get caught.

Chu's defense was that he was not involved in the fire. Although Chu cross-examined the State's arson experts with respect to their conclusions about the cause of the fire, he offered no expert testimony to refute their opinions that the fire was intentionally set. Rather, his defense was that even if it was arson, there was no evidence that Chu was involved. He suggested that he had no involvement in the financial aspects of the business and that he had not made any insurance claims.

Chu testified that earlier in the day on January 4, his father, brother, and others cleaned and covered machinery in preparation for remodeling in the store. While his family worked in the store, Chu and his cousin, Suk Won, delivered clothes to So Man's other stores. He said that they all left the store shortly before 7:30 p.m. to return to the Chu residence.

Chu testified that he, Jay, Won and a friend, Mark Nelson, soon returned to the store because they had forgotten they were supposed to retrieve a fire extinguisher and take it to another of So Man's stores. The young men rode in Chu's vehicle, with Chu driving. Chu said that when they arrived, Won got out of the vehicle to retrieve the extinguisher from one of the vans parked outside the store, but no one entered the store.

The jury found Chu guilty, as a party to a crime, of committing arson of both a building and property with the intent to defraud an insurer. He was sentenced to seven years in prison and five years' probation, to be served consecutively.

Chu contended that his due process rights were violated when he "was subjected to racial stereotyping suggesting that Korean sons are automatons who blindly carry out the orders of their fathers even when the orders involve criminal activity." Specifically, he objects to three instances where Chu's race or culture were referenced.

First, in its opening statement the State said: "The evidence will show in fact as part of his family setup, and more particularly, because of his Korean culture, [Chu] was very devoted and loyal to his father." Second, Weiss testified:

I know that Dale would have to get something out of it, but his dad is the one that should be sitting in that chair. In my eyes, his dad is the one that is responsible. Dale was a 16-year old kid and in his culture and in Dale's beliefs, you just don't talk back to your parents, you don't - you do what your parents ask you to do.[]

Finally, the State in closing argument stated: "Dale Chu was-as a part of his life experiences, as part of his test of loyalty-was faced with the biggest test of loyalty of his life, loyalty on behalf of his dad. . . . And he carries out that mission ... to get out of that tremendous bond."

Although Dale did not object to these statements at trial, he argues that "the State's use of racial stereotype amounted to plain error, and mandates reversal of Dale Chu's convictions because the use of racial stereotypes could well have enflamed the jury and resulted in a verdict based on something other than the evidence."

The State agrees that this court should review the remarks under a plain error analysis. See State v. Street, 202 Wis. 2d 533, 552, 551 N.W.2d 830 (Ct. App. 1996) ("plain error" must be obvious, substantial, and so fundamental that a new trial must be granted). However, the State contends that the statements by the prosecutor and Weiss were not improper. The court agreed.

Similarly, the court did not view the prosecutor's statements as an attempt to arouse jury prejudice toward Koreans. Rather, the statements were an attempt to preview and summarize evidence demonstrating that Chu had a motive for committing the arson: his personal belief, based on his upbringing and culture, that he should remain loyal to his family. Indeed, the jury heard evidence concerning Chu's individual beliefs, introduced through Weiss as admissions.

It was not improper for the prosecutor to suggest that Chu held personal beliefs about family loyalty, based on his upbringing and culture, that suggest he would do as his father asked. The prosecutor did not ask the jury to find Chu guilty because he is Korean. Rather, the State suggested that Chu's beliefs gave him a motive to commit the arson to help his family and act consistently with his father's wishes. The statements do not constitute plain error.

Chu argued that there is insufficient evidence to sustain the jury's verdicts because "the State's experts and lay witnesses all had contradictory theories about how the fire started, none of which could be confirmed by the physical evidence from the fire site." It is unclear whether Chu is disputing the jury's finding that the fire was intentionally set or asserting that the witnesses must agree precisely how the fire was intentionally set.

43. Assuming Chu is arguing the former, there was credible evidence to support the jury's findings that someone intentionally damaged the building and property by means of fire. Both Reece and Hughes offered this opinion. Reece explained that his opinion was based on the elimination of possible causes of the fire, such as electrical or mechanical malfunction. He told the jury about the extensive investigation and the months of probing that went into his determination and, in doing so, offered credible evidence that sustains the jury's verdict. See Weiss v. United Fire & Cas. Co., 197 Wis. 2d 365, 388, 541 N.W.2d 753 (1995).

Chu may instead be arguing that the verdicts should be overturned because the State's experts could not agree on the precise method of starting the fire, and because their testimony conflicted with Chu's alleged admissions about how he started the fire. One of the State's experts, Reece, testified that natural combustibles were used to start the fire. Another expert, Hughes, testified that dresses were doused with something and lit with a match, although he admitted that there was no physical evidence that any kind of flammable liquid was used. Chu also notes that Weiss gave conflicting testimony about what Chu allegedly told her about the specific method of starting the fire. Additionally, Wales testified that Chu said a rag was lit after it was placed in a can of paint thinner or ether paint.

The court rejected Chu's argument because the jury was required to determine whether the fire was intentionally set - not specifically how it was set. See WI JI-Criminal 1405 and 1410. Here, the jury could find that the fire was intentionally set even if the witnesses disagreed precisely how the fire was intentionally set. See State v. Toy, 125 Wis. 2d 216, 222, 371 N.W.2d 386 (Ct. App. 1985) (The jury draws reasonable inferences from testimony, and it may choose to believe part of one witness's testimony and part of another's, even though the witnesses, as a whole, are inconsistent.). His conviction was affirmed.

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), Follow us on Twitter at @firesandrain.

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