Nasim v. State

Menchine, J., delivered the opinion of the Court. Ghulam Mohammid Nasim (appellant) was brought to a jury trial in the Circuit Court for Baltimore County on three two-count indictments. In indictment 51980 it was charged in the first count that appellant “did wilfully and maliciously set fire to and burn the dwelling house of Charles Leroy Heim, located at 105 E. Burke Avenue, Towson, Maryland,” in violation of Code Article 27, § 6. 1 In the second count of that indictment it was charged that appellant “did wilfully and maliciously set fire to and burn the storehouse of Charles Leroy Heim, located at 105 E. Burke Avenue, Towson, Maryland,” in violation of Code Article 27, § 7. 2 Appellant was found guilty under count two; not guilty under count one. He was sentenced to imprisonment for fifteen years. ⁶⁷ In indictment 51979 it was charged in the first count that appellant “unlawfully, knowingly and wilfully falsely stated in a sworn statement on proof of loss to the Home Insurance Company in regard to policy number HP 262-1472 that said loss did not originate by any act, design or procurement on [his] part.” (fraudulent claim of entitlement).

In the second count of that indictment it was charged that appellant “unlawfully, knowingly and wilfully falsely stated in a sworn statement in proof of loss to the Home Insurance Company in regard to policy number HP 262-1472 that said loss under the aforementioned policy is in the amount of $48,000.00.” (false claim of amount of loss). Both charges were alleged to have been in violation of Article 48A, § 233. 3 Appellant was convicted under both counts. He was sentenced to a consecutive term of six months under count 1; to a concurrent term of six months under count 2. He was found not guilty under the third indictment.

In this appeal appellant attacks the admission of evidence of previous fires, asking: “Did the trial court commit prejudicial error in admitting evidence of previous fires involving the Appellant’s property? A. Was the evidence of the fires irrelevant? B. Was the evidence of the fires unduly prejudicial? ⁶⁸ C. Was the error not harmless beyond a reasonable doubt?” We believe that our discussion of the questions presented should be prefaced by a brief exposition of the manner in which they were presented below and the trial court’s basis for admission of the questioned evidence. On January 14, 1976, trial counsel for the appellant filed a motion for discovery.

On January 20, 1976, the State, answering that motion, disclosed, inter alia, the following: “The State intends to call Baltimore County Fire Department Personnel identified herein as expert witnesses concerning Incendiary origin of fires, namely; that fires at 105 E. Burke Avenue, 625 Fairway Drive and 246 Burke Avenue, Baltimore County appeared to be of Incendiary origin.” Thus alerted to the State’s purpose to offer evidence of other fires in properties owned or occupied by the appellant, his trial counsel moved early on to exclude evidence relating thereto. After selection of the jury but out of their presence, appellant’s trial counsel thus addressed the trial court: “The Defendant makes a Motion that any and all evidence relating to fires or claims as a result of a fire made or purported to be made by the Defendant be excluded from any mention in these proceedings specifically. It is my understanding that the State intends to use facts and circumstances surrounding fires in 1965, 1968, or thereafter connected with buildings either owned by the Defendant, or leased by the Defendant, and also to introduce evidence with regard to insurance claims made in those regards.” The record shows that there followed a lengthy discussion by the court with counsel for the State and the defense respecting the admissibility of such evidence. The judge, thereafter stated, inter alia: “. .. at this point in time, I think that I must deny ⁶⁹ [the motion], and believe I am implying [sic] the principles set out in the Ross[ 4 ] case and Woods [ 5 ] case, since one, the fire goes back to ’65, and the circumstances of the fire and instrumentality of the fire, the nature of the fire, certainly would be relevant, and more importantly, I would say critical to the presentation of the State’s case, and I will deny your motion on those two fires.” [625 Fairway Drive, October 7, 1965; 246 E. Burke Avenue, June 4,1968.] We find that objections to introduction of the questioned evidence that followed thereafter have preserved the issue for our review.

The questions presented require us to delineate at some length the facts and circumstances of the fire producing the subject substantive offenses and the facts and circumstances of the previous fires. The testimony below dealt with three fires of importance to our review in this case. They are: (1) the fire forming the basis for the subject prosecutions at 105 E. Burke Avenue on August 21, 1974; (2) the fire at 625 Fairway Drive on October 7, 1965; and (3) the fire at 246 E. Burke Avenue on June 4, 1968. 1. The subject fire at 105 E. Burke Avenue on August 21, 197j.

Charles L. Heim, at a constable’s sale conducted on July 12, 1974, had purchased for himself and his wife the property known as 105 E. Burke Avenue, Towson, Maryland. The sale was in execution of a judgment of the District Court of Maryland for Baltimore County obtained by Carmen J. diPasquale against Ghulam M. Nasim, the appellant. Following the sale, the purchaser sent a letter to the appellant, advising him of the purchase at judicial sale and giving thirty days for Nasim to vacate the premises. On the morning of August 21, 1974, a hearing was held in the District Court of Maryland for Baltimore County, on a ⁷⁰ motion in behalf of the appellant to set aside the sale.

The motion was denied. The appellant was not present at the hearing. On August 21, 1974, at 9:30 p.m., Heim, who resided in the adjoining property at 107 E. Burke Avenue, observed that 105 was ablaze. The fire department of Baltimore County responded to his call.

Robert Louis Snyder, a Lieutenant of the Baltimore County Fire Department, assigned to investigate fires of suspected incendiary origin, made an inspection of the fire damaged premises. This witness, assigned to the Fire Investigation Division since 1968, also had substantial theoretical training in arson detection at colleges within and without the State of Maryland. He had given testimony in at least fifteen arson cases. His investigation showed two points of origin of the fire.

As to the first, an area at the front door, he said the fire was “very intense, burning completely through the flooring. It even burned into the joist of the second floor.” As to the second, in a stairwell leading from the first floor to the basement, he said the “steps [were] completely burned out. Part of the support risers were burnt out also.” His continuing testimony included the following: “. . . In the basement was observed what is known in our trade as a plant — arson plant, which involved an iron on an ironing board connected to a regular electrical current.

Underneath the iron ran a cotton sheet over across the refrigerator or chest type freezer, and lid — continued on into and was stuck — the sheet was stuck in a fuel tank. Also, I observed that there was fuel on the floor. The plant went off, as we call it, — ignited because of the heat of the iron, and the trailer had extended on over and partially had burned, but that got on the floor— Q It didn’t go to the oil tank? ⁷¹ A Did not, but did burn on the floor area igniting the oil on the floor. Q Now, from your experience could you say whether that iron caused that fire in that area?

A It was believed it caused the fire, yes, sir. Q Was the electricity on? A Yes, sir. It was.

Q How did you determine that? A Well, sir, I observed that the turn of the meter was going around. That meter was marked floor number 1. There was two meters in the house.

Floor number two was not moving. The counter-wheel that goes around on floor number 1 — meter number 1 for the first floor was on. Also, the electric socket was tested by the Chief Electrical Inspector of Baltimore County. Q Do you know the results of that test?

A Yes, sir. The test resulted in that the current was — switch was on for the socket. The switch on the iron was in a position of being on. Q Did you recover the iron?

A Yes, sir. I have it with me.” The witness then testified that there was other evidence that the fire of August 21, 1974, was of incendiary origin. He said: “Q Now, from your experience could you say whether or not that [fire of two origins] was of an incendiary origin? A Yes, sir.

It is. Q How could you say that? A Well, due to the extreme burning of the flooring without a combustible load. When we say combustible load, it would be furniture.

There was nothing in that area that would cause the intense heat. Also, the jagged ⁷² edges of the flooring where the flooring completely burned away, and also the fire had burned down into the flooring joist. Fire burns up; heat rises, but when it goes down, there has to be something to pull the fire down. The same with the stairwell.

The stairwell, going to the second point, were separated far enough that the fire in the stairwell, could not have completely burned out the area in front of the front door. Q Now, from your experience could you comment one way or the other as to whether or not either of these fires was caused accidentally or by natural causes? A No, sir. It is my opinion that the two fires, both fires were caused by an incendiary origin.

There was no defective wiring in that area, because it was checked by myself, and there is no evidence of any malfunction of the electrical system.” At the time of the fire Heim did not have a key to the premises 105 E. Burke Avenue, Nasim having refused to deliver one. Nasim was observed to be within the premises on numerous occasions after the constable’s sale. He was not seen there, however, on the date of the fire. The Home Insurance Company had issued a policy of fire insurance for 105 E. Burke Avenue to the appellant on July 16, 1972, for a term of three years.

The initial amount of insurance coverage is not shown in the record, but on April 23, 1974, had been increased to $45,000 on the building; $27,000 on the contents of the building; $9,000 additional living expenses, and $4,500 for appurtenant structures. In early August, 1974, prior to the date of the fire, the appellant, Edith Peterson, and Randy Sellman had removed bedroom, dining room, living room, and kitchen furniture and other household items owned by Peterson from the premises 105 E. Burke Avenue. In consequence, there was, ⁷³ at the time of the fire, very little furniture on any floor of the building. Nonetheless, the appellant made oath in a proof of loss executed on November 20, 1974, that he had sustained a loss'from the fire in the amount of $48,000.

One Norman Goodman, a Certified Public Insurance Adjuster, who had been requested by the appellant to adjust the alleged losses, testified that on August 26, 1974, he had cancelled a contract to do so because he believed Nasim had no insurable interest in the building and that the sparse contents at the time of the fire were not badly damaged. Nasim on August 12, 1974, had filed a police complaint that some unknown person had pushed open the kitchen window of 105 E. Burke Avenue. A police investigator met Nasim at the premises and requested appellant to advise whether any property was missing. No response was thereafter forthcoming. 2.

The fire at 625 Fairway Drive on October 7, 1965 Lt. William Harmon, an investigator of suspected arsons for the Baltimore County Fire Department, with seventeen years experience, testified that this fire, originating in the basement, was “caused by an iron that was left on an ironing board in the basement.” The premises were occupied by Dr. Nasim, who had explained that “his son had been playing in the basement before they left the house.” The witness added that the iron was on the “on” position and could have been turned on by a child, or could have been set there purposely. The record shows that the departure of Nasim from 625 Fairway Drive had preceded discovery of the blaze by a next door neighbor by a very short interval. Cpl.

John Raymon, of the Baltimore County Police, with eighteen and one-half years experience, who had served in the Burglary Investigation Unit for seven years, made an investigation at the fire scene. He testified that he had responded to the fire at 9:15 a.m. on