Barnes v. State

GARRITY, Judge. The appellant, Lee Thomas Barnes, was convicted at a jury trial in the Circuit Court for Garrett County of arson, breaking and entering, and malicious destruction. He was ⁵³ sentenced to a total of 15 years imprisonment. On appeal, he contends that several errors occurred during the course of his trial.

We shall first address his contention that the evidence presented by the State was insufficient to sustain his convictions, because if the appellant is correct in this allegation, we would be compelled to reverse the convictions without remand for a new trial, and we would not need to address the additional contentions. Burks v. United States, 437 U.S. 1 , 98 S.Ct. 2141 , 57 L.Ed.2d 1 (1978); Dean v. State, 46 Md.App. 536, 537 , 420 A.2d 288 (1980). I. Sufficiency of Evidence At the appellant’s trial, the State presented the testimony of Charles W. Fritz, the Chief of Police and Asst. Fire Chief of New Windsor, Maryland.

Chief Fritz stated that on the evening of July 14, 1980, during his routine patrol of New Windsor, he inspected the quonset hut used as a warehouse of the Brethren Service Center. At about 6:30 p.m. and at 11:30 p.m., according to the witness, the condition of the warehouse was “normal.” The police chief further testified that at approximately 6:15 p.m. to 6:30 p.m. he saw the appellant and several other people socializing outside the appellant’s home, which was 500 feet from the warehouse. After Chief Fritz went off-duty and returned home, he received a message over his monitor alerting him to a fire at the Brethren Service Center. The time was approximately 1:45 a.m.

Chief Fritz testified that he responded to the fire alarm within a few minutes and found the warehouse engulfed in flames. Chief Fritz told the jury that while he was directing the firefighters, he noticed the appellant and several other civilians standing nearby, about 8 to 10 feet from the fire engine. According to the witness, the whole group “seemed to be having a joke out of the thing, like they were laughing and talking. .. . like it was more of a comedian show for them.” Chief Fritz added that his firefighters had difficulties battling the blaze, which briefly was out of control, and took 14 hours or more to extinguish. When asked to de ⁵⁴ scribe the extent of the damage, the witness said that the front of the warehouse was “totally destroyed,” and that the rest of the structure and its contents were “damaged considerable.” A representative of the church which operated the warehouse, David Bubel, testified that the building had been used to store and process clothing gathered by church groups and relief organizations to be shipped overseas.

Bubel stated that on the night of the fire, the warehouse contained over 6,000 bales of clothing, with each bale weighing approximately 90 pounds. The warehouse also contained 20 tons of soap and various machinery. The witness testified that the warehouse was clean and well-maintained; that no loose clothing or rags were kept on the floor, and that the electrical wires were housed in metal conduits. Over objection, the witness was allowed to testify that none of the warehouse workers smoked.

Bubel estimated the value of the clothing in the building at about a million dollars. Additional evidence for the prosecution was presented by two fire investigators from the State Fire Marshall’s Office. J. Elwood Kauffman testified that he examined the remains of the warehouse and determined that the fire could not have been caused by an electrical problem, or by cigarette smoking, spontaneous combustion or chemical reaction. The expert witness opined that the warehouse was damaged by an incendiary fire which had been deliberately set near one of the building’s conveyors.

Charles Cronauer, the second investigator, testified that he was certain that the fire had been deliberately set because there was no heat source, electrical or chemical, under the warehouse conveyor where the fire began. He opined that the fire had to have been caused by someone piling loose clothing under the conveyor and igniting it with a match or a lighter. The State also called as a witness, Levine J. Clark, a neighbor of the appellant. The witness recalled that within two or three months after the warehouse fire, he was ⁵⁵ talking with the appellant who said, “I burnt the place down.” Pamela Joy Wilson testified for the State and said that in March or April of 1981, she conversed with the appellant.

She related to the jury that in the course of the conversation, in response to her asking the appellant whether he had anything to do with the Brethren Service Center fire, he replied, “Yes.” On cross-examination, Wilson admitted that she had discussed the fire investigation with Fire Marshall Frank Rauschenberg, and had talked about a reward of approximately $165.00. Donald Mullinex testified that during the evening of July 14, 1980, he and two other young men spent several hours at the appellant’s apartment talking, playing cards, drinking beer and eating crabs. He stated that late in the evening the appellant and the other men left the appellant’s apartment. Mullinex fell asleep, to be awakened later by the sound of fire sirens.

The appellant later returned and told Mullinex that he “just hoped the fire marshall didn’t come over that night.” Charles W. Gardner testified that he was also with the appellant during the evening of July 14, 1980. He recalled that the appellant discussed breaking into the Brethren Service Center to steal blankets. According to the witness, the appellant said that it was possible to break into the quonset hut by lifting the “tin side” of the building. The appellant also expressed displeasure that the clothing in the warehouse was being sent overseas while there were needy people in this country.

Gardner further testified that he declined to get involved in the planned break-in, but that on July 15, 1980, he spoke with the appellant and asked him if he had burned down the warehouse. The appellant later replied, “I did a hell of a good job on it, didn’t I?” The appellant contends on appeal that the testimony of witnesses Gardner, Wilson, and Clark was unworthy of belief by the jury because these witnesses had prior criminal ⁵⁶ records. He asserts that his conviction should be reversed because in the absence of credible testimony, the State failed to present evidence from which the jury could fairly be convinced, beyond a reasonable doubt, of the appellant’s guilt. Metz v. State, 9 Md.App. 15, 23 , 262 A.2d 331 (1970).

The record reveals that the defense questioned the credibility of several of the State’s witnesses, using their criminal records. The defense did not, however, successfully challenge the admissibility of the testimony given by these witnesses. Once testimony has been ruled admissible in a trial by jury, it is the province of the jury as factfinder, not the trial judge or an appellate court, to weigh the credibility of the testimony and determine the issue of guilt or innocence. This Court will affirm a determination of guilt if, after viewing the evidence in the light most favorable to the State, we determine that any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781, 2789 , 61 L.Ed.2d 560 (1979). In the present case, we will not assess the veracity of the witnesses; rather, we must accept the jury’s determination that they were credible. We hold that the evidence presented was sufficient to sustain the appellant’s conviction.

II

Impeachment Testimony The appellant’s mother, Mildred Barnes, testified for the defense. She stated that she had previously conversed with two of the State’s witnesses, Charles Gardner and Pamela Wilson. Regarding her conversation with Gardner, Mrs. Barnes said that he told her that he did not believe that the appellant would have committed the arson, and that the State’s witness, Levine Clark, was a drunk who would say anything. Mrs. Barnes further testified that Pamela Wilson had told her prior to the trial that she was ashamed of herself for serving as a witness against the appellant. ⁵⁷ In rebuttal, State’s witness Gardner admitted having discussed the case with Mrs. Barnes, but he did not believe that his conversation with her addressed the issue of the appellant’s criminal agency.

Miss Wilson rebutted Mrs. Barnes’ testimony by completely denying that she had ever participated in such a conversation with Mrs. Barnes. The State also called Chief Fritz as a rebuttal witness. The witness testified at length concerning his dealings with Mrs. Barnes prior to the trial. He stated that he had known Mrs. Barnes well for the previous two years, and had been “faintly acquainted” with her for several years earlier.

During the two years immediately preceding the trial, Chief Fritz had talked with Mrs. Barnes at her house three or four times. On those occasions, the officer sought to confirm information which he had already obtained elsewhere. According to Chief Fritz, all that he required from Mrs. Barnes was a verification of the specific addresses of other people and confirmation of the “good lead” that he had on matters unrelated to the present case. Viewed in context, on the basis of this personal contact with Mrs. Barnes, Chief Fritz was permitted to testify over defense objection that he did not believe that Mrs. Barnes was a truthful person.

On appeal, the appellant stages a two-pronged attack on the trial court’s admission of Chief Fritz’s opinion testimony. 1 First, the appellant contends that the trial court should not have admitted Chief Fritz’s testimony because he lacked “an adequate basis for forming an opinion as to another person’s character”, as is required pursuant to Cts. & Jud.