This post examines an opinion from the New York Supreme Court, Appellate Division: People v. Howard, 2015 WL 7766320
(2015). The court begins by explaining
that the case involves an
[a]ppeal from a judgment of the County Court of Clinton County (McGill, J.), rendered February 15, 2013, upon a
verdict convicting [Howard] of the crimes of arson in the third degree and
insurance fraud in the second degree.
[Howard] was charged with arson in the
third degree and insurance fraud in the second degree arising from allegations
that he intentionally set fire to his house in the Town of West Chazy, Clinton County and tried to obtain the insurance proceeds. Following a jury trial, he
was convicted as charged. County Court denied [his] motion to set aside theverdict, sentenced him to concurrent prison terms of 3 to 9 years on each
count, and ordered him to pay $150,667.06 in restitution. [Howard] appeals.
People v. Howard, supra.
Howard raised several issues on appeal, the first of which
was that the trial judge erred in admitting testimony from his wife that
directly concerned the fire that destroyed the couple’s home. People
v. Howard, supra. In other words, Howard argued that admitting
his wife’s testimony against him violated either or both of the “spousal privileges”. People v. Howard, supra.
As Wikipedia explains,
[s]pousal
privilege (also called marital
privilege or husband-wife
privilege) is a term used in the law of evidence to describe two
separate privileges: the communications privilege and the testimonial
privilege. Both types of privilege are based on the policy of encouraging
spousal harmony, and preventing spouses from having to condemn, or be condemned
by, their spouses.
Wikipedia goes on to explain that the spousal communications
privilege is a type of
privileged communication that protects
the contents of confidential communications between spouses during their
marriage from testimonial disclosure. The privilege applies in civil and
criminal cases.
Both the witness-spouse and the
party-spouse hold the spousal communications privilege, so either may invoke it
to prevent the other from testifying about a confidential communication made
during marriage.
As Wikipedia also notes, the testimonial privilege “protects
the individual holding the privilege from being called to testify by the
prosecution against his/her spouse”.
That brings us back to People
v. Howard, which only involved the testimonial spousal privilege. The Supreme Court began its analysis by
explaining that,
[i]nitially, we find no error in County
Court's decision to admit the testimony of [Howard’s] wife that [he] had said
that he was going to burn the house down. The privilege that precludes a spouse
from disclosing a confidential communication made during marriage by the other
spouse (see CPLR 4502[b]; CPL 60.10) does not protect every remark
between spouses during a marriage.
Instead, `the privilege attaches only
to those statements made in confidence and “that are induced by the marital
relation and prompted by the affection, confidence and loyalty engendered by
such relationship”’ (People v. Fediuk, 66 N.Y.2d 881, 883 [Court ofAppeals of New York 1985], quoting Matter of Vanderbilt
[Rosner–Hickey], 57 N.Y.2d 66, 73 [Court of Appeals of New York 1982]).
The wife testified that her marriage to defendant began to deteriorate during
the months before the fire, in part because [he] wanted to relocate to
Colorado while the wife wanted to remain in New York and continue living in the
marital home with her children. She stated that, as the relationship worsened, [he] told her `many’ times that he would burn the house down to prevent
her from taking possession of it when they separated.
People v. Howard, supra.
The court then began its analysis of the issue that was
before it, noting that the
privilege `was never designed to forbid
inquiry into the personal wrongs committed by one spouse against the other’
and, thus, does not apply here, as defendant's statements were not prompted by
trust or confidence in the marital relationship, but, instead, constituted
threats of criminal activity directed at the wife (Poppe v. Poppe, 3
N.Y.2d 312, 315 [Court of Appeals of New York 1957]; see People v.
Govan, 268 A.D.2d 689, 691 [New York Supreme Court – Appellate
Division 2000]. . .; People v. Capobianco, 218 A.D.2d 707 [New York
Supreme Court – Appellate Division 1995], . . .; People v.
Naylor, 120 A.D.2d 940 [New York Supreme Court – Appellate Division 1986]
. . . .
Further, the privilege does not apply `when
the substance of a communication . . . is revealed to third parties’ (Matter
of Vanderbilt [Rosner–Hickey], supra. . . . Here, the wife testified that several
of defendant's threats were made in the presence of other people, including
mutual friends and the couple's children, and these statements were not
privileged (see People v. Ressler, 17 N.Y.2d 174, 179 [Court of
Appeals of New York 1966]; Jerome Prince, Richardson on Evidence § 5–406
[Farrell 11th ed 2008]).
People v. Howard, supra. And that disposed of Howard’s first argument
on appeal.
The Supreme Court then took up his next argument, which was
that the trial court “improperly admit hearsay testimony by permitting an
insurance investigator to testify about interviews he conducted while
investigating the fire.” People v. Howard,
supra. As Wikipedia explains, hearsay evidence is
`an out-of-court
statement introduced to prove the truth of the matter asserted therein.’ In
certain courts hearsay evidence is inadmissible (the `Hearsay Evidence Rule’)
unless an exception to the Hearsay Rule applies.
For example, to
prove Tom was in town, the attorney asks a witness, `What did Susan tell you
about Tom being in town?’ Since the witness' answer will rely on an
out-of-court statement that Susan made, Susan is not available for
cross-examination, and it is to prove the truth that Tom was in town, it is
hearsay. A justification for the objection is that the person who made the
statement is not in court and thus is insulated from cross examination.
Note, however, that
if the attorney asking the same question is trying to prove not the truth of
the assertion about Tom being in town but the fact that Susan said the specific
words, it may be acceptable. For example, it would be acceptable to ask a
witness what Susan told them about Tom in a defamation case against Susan
because now the witness is asked about the opposing party's statement that
constitutes a verbal act.
Getting back to the Howard
case, the Supreme Court went on to explain that the
investigator testified that, following
his investigation, he concluded the fire was caused by human action and that
this opinion was based, in part, upon his communications with an independent
electrical consultant who assisted him in the investigation, and also with one
of the wife's children. Although neither of these individuals testified at
trial, the professional reliability exception to the hearsay rule permits an expert
witness to rely upon out-of-court information that would otherwise be
inadmissible `if it is of a kind accepted in the profession as reliable in
forming a professional opinion’ (People v. Goldstein, 6 NY3d 119 [Court
of Appeals of New York [2005]. . .; accord Matter of State of New York
v. Floyd Y., Court of Appeals of New York [2013]). `[A] prerequisite
to admission of such out-of-court material is a showing by the proponent that
it is reliable as a basis for expert opinion in the given field’ (People v.
Wlasiuk, 32 AD3d 674 Court of Appeals of New York [2006]. . . ).
People v. Howard, supra.
The court then began the process of applying the relevant
legal principles to the facts in this case, noting, initially, that the
prosecution
laid the necessary foundation for
allowing introduction of the information obtained from the consultant through
the testimony of the investigator, who described the consultant's
qualifications as a retired master electrician who had assisted the
investigator in many prior fire investigations, had likewise assisted other
companies and investigators and had previously been qualified as an expert in
state and federal court. Defendant was free to cross-examine the investigator
and, thus, was not deprived of the opportunity for cross-examination relative
to the consultant's credentials.
As for the substance of the information
obtained from the consultant, the investigator testified that his initial
investigation revealed that the fire had originated inside an upstairs bedroom
belonging to one of the children and that, after ruling out other potential
sources of the fire, the investigator identified a damaged electric receptacle
in the wall of this bedroom. The investigator then contacted the electrical
consultant and the two of them inspected the receptacle together. The
investigator thereafter concluded that the damage in the receptacle had been
caused by the fire and did not result from an electrical defect or failure that
could have been the original source of the fire.
This testimony did not provide an
improper `conduit for hearsay’ (People v. Goldsteim, supra [internal
quotation marks and citation omitted]), as the investigator did not testify as
to the substance of any statements made by the consultant. Moreover, the
investigator's testimony established that his opinions regarding the origin of
the fire were not principally or solely based upon the consultant's
examination, but also upon his own observations and research. The information
acquired from the consultant therefore `only form[ed] a link in the chain of
data’ upon which the investigator's opinion was based (People v. Wlasiuk,
supra; see People v. Mana, 292 A.D.2d 863, 863 Court of Appeals of New
York [2002]. . . .
People v. Howard, supra.
The Supreme Court went on to explain that,
[a]s to the interview with the child,
the investigator stated that, in response to questioning as to any potential
cause of the fire, defendant advised that he had altered the wiring in a
charging unit belonging to the child, and that this charger had been plugged
into the damaged receptacle in the child's bedroom at the time of the fire. The
altered charger was later given to the investigator, and he testified that it
had no fire damage of any kind and, therefore, could not have been located in
the child's heavily damaged bedroom, nor could it have caused the fire.
Based upon an interview with the child
together with examination of the fire scene and the evidence he recovered, the
investigator further concluded that nothing was plugged into the damaged
receptacle at the time of the fire. The investigator testified that interviews
with a home's occupants were part of his methods of investigation, thus
providing the requisite foundation for his reference to the interview.
As with the electrical consultant, the
investigator based his conclusions only in part on the interview, and he did
not describe the substance of the interview or any statements made by the
child. Accordingly, County Court properly overruled defendant's objection to
this testimony.
People v. Howard, supra.
Finally, the Supreme Court took up Howard’s argument
predicated on the premise that the “verdict was against the weight of the evidence” because the People neither proved that the fire was not an accident nor
that defendant intended to commit arson or insurance fraud.” People
v. Howard, supra. It went on to explain that the investigator
testified that he ruled out all
potential non-human causes of the fire, such as the house's wiring, appliances
and woodstove, and ultimately concluded that the fire had been caused by human
action. [Howard] contends that this opinion was inadequate as the investigator
was unable to determine precisely how the fire had been ignited, and further
acknowledged that the human actions that started it could have been accidental.
However, the role of the investigator was merely to determine the cause of the
fire, not to identify the person who caused it or that person's motivation. The
People were not required to prove the precise mechanism by which the fire was
caused, and they presented ample evidence from which the jury could conclude
that [Howard] intentionally started the fire. In addition to the
previously-described statements to his wife, [Howard] told several other witnesses
that he planned to move to Colorado and to burn down the house to prevent the
wife from keeping it. One witness testified that, after describing these plans,
[Howard] said `you can't split a pile of ashes.’
Another witness testified that she
heard [him] say he would `burn the house down before [the wife] gets it,’ and
two additional witnesses testified that [Howard] had asked the witness
questions about the flammability of grease and whether it would be possible to
start a house fire by heating cooking oil. As to motive, the wife testified
that [Howard] had made several comments to the effect that if the house burned
down, the insurance proceeds would provide financing for his planned move to
Colorado.
There was also evidence suggesting [Howard]
had made a previous attempt to set fire to the house. Two days before the fire,
the wife noticed that [he] had purchased vegetable oil, which was unusual as he
did not ordinarily cook or shop for groceries. Later that day, she found him
cleaning up a large amount of oil that had spilled all over the kitchen; a deep
fryer was on the counter beside the stove. When she asked what he was doing, [Howard]
replied, `Well, never mind, it didn't work anyway.’ The insurance investigator
corroborated this account in part, stating that he found a large amount of
grease or oil on several surfaces in the kitchen, but that the forensic
evidence revealed that this substance had not caused the fire.
People v. Howard, supra.
The court then pointed out that,
[o]n the day before the fire, [Howard] told
the wife that he no longer wished to fight, was willing to sell the house and
divide the proceeds, and was moving out that day. He removed some of his
clothing, left the house and spent that night with a friend. During his absence,
the wife searched the Internet history on the family computer and discovered [Howard]
had made numerous searches regarding house fires, including searches for common
causes of household fires, grease fires and kitchen fires.
Police later conducted a forensic
examination of the computer that revealed multiple searches on [Howard’s]
account during the `untraceable fire starters’; a report of this examination
was admitted into evidence at trial. At trial, [Howard] claimed someone else
could have accessed his account, but acknowledged that he had conducted some of
the searches. A police investigator testified that when questioned as to why he
had searched for the causes of household fires, [Howard] responded that he `searche[d]
a lot of dumb things.’
[Howard] testified that he spent the
morning of the fire repairing a flat tire on his car, that he visited the house
briefly in the early morning, that his wife had already left for work, and that
only his young son and [Howard’s] mother, who was getting the son ready for
school, were present. He stated that the house was not on fire when he left and
he did not start the fire.
Viewing the evidence in a neutral light
and giving the appropriate deference to the jury's credibility determinations,
we find there was ample evidence from which the jury could have found that [Howard]
intentionally set the fire, and, thus, the verdict on the arson conviction was
not against the weight of the evidence (see People v. Stevens, 84
AD3d 1424). On the day before the fire, [Howard] told the wife that he
no longer wished to fight, was willing to sell the house and divide the
proceeds, and was moving out that day. He
removed some of his clothing, left the house and spent that night with a
friend. During his absence, the wife searched the Internet history on the
family computer and discovered that [he] had made numerous searches regarding
house fires, including searches for common causes of household fires, grease
fires and kitchen fires. Police later conducted a forensic examination of the
computer that revealed multiple searches on [Howard’s] account during the weeks
before the fire for subjects such as the causes of house fires, grease fires
and `untraceable fire starters’; a report of this examination was admitted into
evidence at trial. At trial, defendant claimed that someone else could have
accessed his account, but acknowledged that he had conducted some of the
searches. A police investigator testified that when questioned as to why he had
searched for the causes of household fires, [Howard] responded that he `searche[d]
a lot of dumb things.’
People v. Howard, supra.
The opinion goes on to explain that,
at trial, Howard testified that he
spent the morning
of the fire repairing a flat tire on his car, that he visited the house briefly
in the early morning, that his wife had already left for work, and that only
his young son and [Howard’s] mother, who was getting the son ready for school,
were present. He stated that the house was not on fire when he left and that he
did not start the fire. Viewing the evidence in a neutral light and giving the
appropriate deference to the jury's credibility determinations, we find that
there was ample evidence from which the jury could have found that [Howard]
intentionally set the fire, and, thus, the verdict on the arson conviction was
not against the weight of the evidence (see People v. Stevens, 84 AD3d 1424 [New York Supreme Court – Appellate Division
2011]. . .
Additionally, based
on the evidence that [Howard] concealed the cause of the fire when he submitted
an insurance claim for his share of the policy proceeds (see People v. Abraham, 94 AD3d 1332 (New York Supreme Court – Appellate Division [2012])), the
verdict on the insurance fraud conviction was not against the weight of the
evidence.
People v. Howard, supra.
Next, the Court of Appeals explained
that Howard also argued that the
sentence imposed by
County Court was harsh and excessive as he had no adult criminal history before
the current convictions and no fatalities or injuries resulted from the fire.
However, the record reveals that [Howard’s] crimes had devastating emotional and
economic effects upon the lives of his wife and family.
In view of the
seriousness of his crime and his failure to express remorse or take
responsibility for the consequences of his actions, we find no abuse of
discretion or extraordinary circumstances warranting a reduction (see CPL470.15[6][b]; People v. Alnutt, 101 AD3d 1461 [New York Supreme Court – Appellate Division 2012]. . .; People v. Mangan, 258 A.D.2d 819 [New York Supreme Court – Appellate Division 1999]). . . .
Additionally, based on the evidence
that [Howard] concealed the cause of the fire when he submitted an insurance
claim for his share of the policy proceeds (see People v. Abraham, 94
AD3d 1332 [New York Supreme Court – Appellate Division 2012] .
. ., the verdict on the insurance fraud conviction was not against the
weight of the evidence.
People v. Howard, supra.
The Supreme Court – Appellate Division therefore affirmed
Howard’s conviction and sentence. People v. Howard, supra.
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