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People v. Mcaleer

DECEMBER 23, 1975.




APPEAL from the Circuit Court of St. Clair County; the Hon. JOHN J. HOBAN, Judge, presiding.


A jury found the defendant, Howard McAleer, guilty of the crime of arson. Subsequently, the court sentenced him to 3 years' probation, a condition of which he was to pay a fine of $500 and court costs.

In his brief, the defendant lists 15 issues presented for review. Many of these issues are repetitive and have not been discussed in the argument portion of the brief. From our reading of the defendant's arguments we have determined that the following questions are properly presented for review: (1) whether the defendant was proven guilty beyond a reasonable doubt of the offense of arson with intent to defraud an insurer; (2) whether the court erred in admitting testimony concerning a jug of gasoline found in defendant's house after the fire; (3) whether the defendant was prejudiced by the State's failure to comply with the provisions of Supreme Court Rule 412 governing disclosure to the defendant; (4) whether the court erred in denying defendant's motion for a protective order; (5) whether the court erroneously denied the defendant's motion to dismiss the indictment for reason that the State had refused to permit the defendant to take a polygraph test; (6) whether the defendant was denied due process of law because the State held a group meeting of potential witnesses two days before trial; (7) whether the State's failure to supply defense counsel the correct address of prosecution witness Beatrice Miller denied the defendant a fair trial.

The defendant was charged by indictment on February 7, 1974, of burning his own house with the intent to defraud his insurer. Numerous pretrial motions were filed by the defendant, some of which are the subject of issues presented for our review. The controversies surrounding these pretrial motions will be discussed later in the context of resolving the questions pertaining to them. Before presenting witnesses the parties stipulated to the existence of a contract for the sale of the burned property and of a valid policy of fire insurance on the house and its contents.

The evidence in this case can best be summarized by considering the events: first, preceding the day of the fire; second, on the date of the fire, December 3, 1973; and third, after the day of the fire.

State's witness Beatrice Miller lived with the defendant at the residence in Washington Park at 5335 Avon Avenue from June, 1972, to November, 1973. She moved out in November after an argument with the defendant. Five days before the fire she removed her furniture from the house. Mrs. Miller testified that on six different occasions the defendant had indicated to her that the house was going to burn, that he had insurance, and that she should remove her furniture. On one occasion, according to her testimony, the defendant offered to split the proceeds from the personalty insurance if she left her furniture in the house.

Karen Williams, a defense witness and employee of a real estate agency, testified that her agency had listed defendant's property and that another agency had produced a prospective buyer. She identified and described an earnest money contract signed on November 5, 1973. Defendant was informed that because of Federal Housing Administration requirements, it would take up to 3 months to approve and close the sale. As a result of the fire the title was never conveyed to the prospective buyer. Two other realtors gave testimony not substantially different from that of Mrs. Williams.

Three firemen who arrived on the scene about 11 p.m. on the night of the fire smelled a "very strong" odor of gasoline. Fireman Richard Schlake testified that his inspection of the house after the fire was contained revealed six separate fires. One fire was started in the living room on the carpet. The next fire was in the kitchen underneath a table where a pile of rags was smoldering. Fireman Terry Shephard corroborated the testimony regarding the smoldering rags. A third fire was also found in the kitchen going down to the basement next to the sink. Schlake found evidence of still another fire in a bathroom closet. There was an additional fire in a utility room or bedroom across from the bathroom. The witness stated that in this room "a bunch of boxes filled with clothes stacked up * * * and a pair of pants and shirts" were found that "had been soaked with some sort of substance." Schlake discovered a sixth fire which had burnt a large hole in the floor of the back bedroom next to the hallway.

State's witness Mary Rose, who worked at a nearby restaurant, testified that the defendant came to her place of employment between 11 p.m. and 12 p.m. on the evening in question. He had smoke and soot on him. The defendant mentioned to Ms. Rose that his house burned down and the firemen were tearing up the house. He told her that it was gas in there and that somebody had thrown it in the house.

Five witnesses, all firemen, testified that the defendant offered them $50 or $60 either to let his house burn down or to reset the fire. One of these witnesses remembered the accused's exact words: "I would give you fifty or sixty dollars to let the place burn down because I could collect it from the insurance." Two of the five witnesses testified to discovering a jug containing gasoline on a shelf in the bathroom closet. A sample of the contents was taken and turned over to the Fire Marshall's office.

Jim Lipchik, an insurance adjuster, met with defendant a day or two after the fire. Defendant submitted a claim for structural damages to the house in the amount of $7,553.88 and $2,523.23 for loss of personalty. Lipchik subsequently executed an agreement with a construction company to restore the defendant's house to its original condition.

Bill Buxton, a fire investigator for the State Arson Bureau, testified that he received a coffee can containing a liquid that smelled like gasoline, which he subsequently gave to Paula Cordosi, a chemist for the Bureau of Investigation. The chemist testified that her tests disclosed that the liquid was indeed gasoline. Buxton examined the house in question to determine the cause of the fire and in his opinion the fire's origin was internal rather than external. He ruled out lightning and a faulty furnace as causes. The fire examiner noted no connection between certain burned electrical wires and other fires in the house. Finally, he testified that his investigation revealed six, unconnected and independent fires.

The defendant appeared at the scene of the fire shortly after the firemen arrived. He testified that earlier that evening he had sprayed his kitchen cabinets, bathroom, baseboards, the bathroom closet, and the stairway leading to the basement with "Real-Kill" in an effort to exterminate roaches. According to his testimony, he left the bottle on the kitchen floor near the basement door, and then propped up a window for ventilation. He then left the house about 5:55 p.m. and went to another piece of property he owned in Fairmont City. While there, he claimed, he received a call from Max Clerkin, a former tenant of his Fairmont City property. Clerkin supposedly said he was out of gas and requested the defendant to bring him some. The defendant related that he then went back to his house on Avon Street, picked up a gasoline can, drove to a gas station where he purchased gasoline, and took it to Clerkin. Later, the defendant asserted, he went to the Fairmont City address and then drove to a tavern. He finally returned to the Avon Street property where he discovered the firemen and firetrucks.

Two expert witnesses testified for the defendant. The first, a petroleum chemist, described the combustible properties of gasoline and "Real-Kill." He conceded that the fire could have been started in a manner suggested by the State's evidence. The second expert, a professor of electrical engineering, testified that he examined an electrical wire that was admitted into evidence and identified as having been taken from the defendant's burned house. Concerning this piece of wire, the expert testified that the wire was either heated internally ...

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