No. 12572 INTHE SUPREME COURT OF THE STATE OF MONTANA

STATE OF MONTANA, Plaintiff and Respondent,

-vs

# - JAMES BURTCHETT, Defendant and Appellant.

Appeal from: District Court of theTwelfth Judicial District, Honorable B. W. Thomas, Judge presiding. Counsel of Record: For Appellant: Morrison, Ettien and Barron, Havre, Montana 3. Chan Ettien argued, Havre, Montana For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana 3. Michael Young, AssistantAttorney General, argued,

Helena, Montana Ronald W. Smith, County Attorney, argued, Havre, Montana

Submitted: June 12, 1974 Decided

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### SEP13

## 1974 Filed

# :$w 131974Honorable Robert Keller, District Judge, sittinginplace of Mr. Chief JusticeJames T. Harrison, delivered the Opinion of the Court. Appellant, defendant below, was convicted of the crime of arson inthe firstdegree and arson with intent todefraud

an insurer, by jury, inthe districtcourt of the twelfthjudicialdistrictof the Stateof Montana, inand for the County of Hill, before the Honorable Bernard W. Thomas. Appellant's residence, located sixmiles south of Havre, Montana, was substantiallydestroyed by fireon the night of May 14, 1971. The Havre cityfiremarshal, Richard D. Habeger, who

was also a special deputy statefiremarshal, inspected the premises on May 15, 1971, took severalpictures, but was unable tomake a determination astothe cause of the fire. The State FireMarshalts Office, atthe instigation of the appellant's fireinsurance company, called Habeger and requested that he go back tothe premises for a more detailed inspection. Habeger returned on May 21, 1971, took 15or 20 photographs and collected samples from seven different holes burned in the floor. Samples from one of the burned holes, adjacent tothe floor furnace, were placed ina two pound coffee can, ultimately admitted intoevidence asexhibit D; samples from sixother holes, further removed from the floor furnace, were placed intoanother two pound coffee can, and ultimately marked asexhibit E, but refused admission into evidence atthe trial. Habeger mailed both exhibits tothe alcohol, tobacco and firearms laboratory inWashington, D.C.,for examination and report on May 24, 1971. He did not receive an immediate reply. InAugust, 1971, appellant encountered Habeger atthe HillCounty Fair and asked if there had been any results from the investigation. Habeger replied inthe negative. In March, 1972, appellant settled his claim with his insurance company,decided to tear downwhat was left of the residence,and then rebuild. Finding no one to tear down the building, appellant decided to burn down the remainder of the building. He cleared the burning with the City of Havre firedepartment and with Hill County, but not specificallywith Habeger, and in late May 1972, burned down the remainder of the building. The samples had been received by the alcohol, tobacco and firearms laboratory in Washington, D. C., tested on June 16, 1971, and the results, showing the presence of accelerants, mailed back to Habeger. Unfortunately, at the time the results

were returned, the Havre city fire departmentwas moving its residence and Habeger was on vacation. The letter with the results was deposited with some junkmail in a cubbyhole in a desk in the new firehall where it lay unnoticed until late September, 1972, some 15months later, when Habeger was looking for some material for Fire Prevention Week. He immediately turned all the results of this investigation over to the county attorney for Hill County and this prosecution followed. Appellant's contentions are as follows: 1. That the court erred in refusing to dismiss the charges

on the grounds of prejudicial delay; 2. That the court erred in admitting Exhibit D; 3. That the court erred in admitting the evidence from the forensic laboratory. Addressing appellant's first contention, there is no question but that a delay in time between the commission of an offense and the commencement of the prosecution, by the filing of an information termed "preindictmentdelay" can be the denial of due process. United Statesv. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L Ed 2d 468. Mere delay, in and of itself, is not sufficient. There must be either actual prejudice to the conduct of the defense,or that the State intentionallydelayed to gain some tactical advantage over appellant,or to harass him. United Statesv. Marion, supra. In the instant case, appellant concedes in his brief that mere delay is not prejudicial in itself and that the delay in this instancewas neither intentional nor purposeful. He does contend, however, that by the time he was put on notice he was the subject of criminal action, the physical evidence had been destroyed, and he was substantiallyprejudiced thereby. At a pretrial suppression hearing and at the trial, appellant called as a witness a chemist fromNorthern Montana College who testified that by the use of a gas chromatographhe could determinewhether or not samples from other portions of the floor contained the same components that chemists in the alcohol, tobacco and firearms laboratory in Washington, D. C., found in the sample taken from the holes that had burned through the floor of the house. Evidence had been introduced by appellant that a considerable amount of kerosene smoke had been permitted to collect

on the underside of the floor (fromthawing frozen pipes in the cellar on a number of occasions), and that there was inlaid linoleum on the floor of the house, held in place by either asphalt

or some other petroleum-based compound. Appellant's chemist testified that either, or both of these conditions could have given rise to a finding by the State's chemist that there were accelerants present. He would have ground up samples from the floor, placed them in an oven under heatlandanalyzed the gases. The chemist from the alcohol, tobacco and firearms laboratory used gas chromatography but with a different approach. Whe~~ the samples were first collected by the deputy state fire marshal and placed in coffee cans,plastic lids were placed over the cans and then taped into place. When the government chemistsreceivedthese cans they inserted a syringe through the plastic lid into the can,withdrew the vapors then existent, and used the gas chromatograph upon the vapors. They found gasoline or naptha present in both cans. These were defined as accelerants,highly volatile, and with an exceptionally low flash point. They further testified that if a volatile petroleum distillate had been placed upon wood, and then stored in the open, it would not only gradually evaporate, but after a period of severalmonths, there was no reliable technique known to detect and identify the petroleum distillate. In addition, they testified that the sooty residue from the keroseneburn and the asphalt used to set the linoleum were not volatile petroleum distillates. In other words, the report from the government chemist

was received in Havre about the end of June, 1971,more than a month following the fire. All that a chemist for the appellant could have found at that date was that he could find no presence of accelerants, which would be expected. On the other hand, the samples examined by the government chemist, offered as State's exhibits D and 

### E, were still intact, still sealed, and still capable of examination. For reasons not shown in the record, appellant never asked that his chemist be permitted to examine those to show that the government chemists

were in error, if they were. In other words, the only evidence available to the chemists for the state was still available for the chemists for the appellant. The trial court was correct in holding that there was no actual prejudice to the appellant occasioned by the preindictment delay. Appellant's second contention is that the court erred in admitting @xhibit Dlone of the coffee cans containing samples from

one of the holes burned through the floor. The contention iswithoutmerit, both factually and legally. Deputy statefiremarshal Habeger testified that he took allof the samples from each of seven holes, that he put two or three samples from the firsthole inone can (exhibitD) and then he put the remaining samples inthe second can (State's proposed exhibit E). He made a sketch of the premises and on the sketch indicated where each of the seven holes was. The first hole was near the floor furnace and upon Haberger's sketchhe indicated "point of origin". Hole number one was never established

asthe "point of origin' by any proof; in fact, Haberger testified that he believed allseven holes tobe simultaneous points of origin. Appellant's counsel continued torefer tohole number

one asthe point of origin, and the transcript is clear that appellant's counsel became confused by Habeger's testimony and believed that Habeger had placed samples from the firstthree holes in the firstcan and samples from the remaining four holes inthe second can. SinceHabeger could not establishwhich holes had accelerants and which ones did not, defense counsel convinced the trialcourt that the samples inthe second can were comingled,

some coming from holes thathad accelerants and some coming from holes thatdid not. The same argument isbeing used here to show that the same situationwas truewith the firstcan of samples. The trialcourtwas not confused by the testimony and knew that the samples inthe firstcan, exhibit D, came from only one hole, the firsthole, the "point of origin" hole. The only errorcommitted by the trialcourt, and it was harmless, was inexcluding State's proposed exhibit E. There should have been no accelerants in that house and the deputy state firemarshal took samples from thathouse and there were accelerants inboth samples. What possible differencecould it make, under the facts in this case, which hole had the accelerants?The Statewas in a position toprove that therewere accelerants inatleasttwo differentplaces and exhibit E should have been admitted. Appellant's third contention is that the court erred inadmitting the evidence from the forensic laboratory intwo particulars. Appellant's firstpoint isthat once the samples reached the forensic laboratory inWashington, D.C., therewere severalpeople who had access tothe laboratory and therefore the custodial chain of evidence was not established. The samples inquestion were collected by thedeputy statefiremarshal, packaged by him and mailed by him tothe alcohol, tobacco and firearms laboratory inWashington, D.C. One of the chemists from that laboratory testified thathe received the package, that it was kept inthat laboratory and the security room, it was examined by one of the chemists from that laboratory who alsotestified and it had been kept inthe evidence room atthat laboratoryuntil the two chemists brought the samples toMontana. This isallthat is required for a prima faciecase. The State must identify the particular exhibit asrelevant tothe criminal charge and must show prima facie that no alteration or tampering with the exhibit has occurred. Statev. Wong Fong, 75 Mont. 81, 241 P. 1072. Once thathas been done, the burden of proving alteration shiftstoappellant. Statev. Fitzpatrick, 

# - Mont

# . - , 516 P.2d 605, 30 St.Rep. 1052. Appellant additionally contends thatthe State failed touse the best evidence inproving the results of the gas chromatograph; that the chromatogram record itself should have been introduced and proof made of the standardsutilized by the chemist in interpreting the chromatogram. The contention has merit, technical though it may be, but the complaint came fartoo late. The chemist who actually examined the samples testified thathe readily detected

### accelerants by the use of the gas chromatogram and that there

was a marked, distinguishable difference between these accelerants and the other nonvolatile petroleum distillates that the appellant contended were also in the floor. His testimony was lengthy and technical but that is the thrust of it. Following appellant's case in chief, the State called the second chemist from the forensic laboratory in Washington as its final rebuttal witness, the chemistwho was in charge of the laboratorybut who did not actually do the examination of the samples. Defense counsel realized during the cross-examination of thiswitness on rebuttal that he had overlooked both the chromatogramrecord and the standards,established that both were in existence, then moved to strike all of the testimony of both chemists on the grounds that during their testimony of the State's case in chief, they had not used the best evidence in explaining the results of the gas chromatograph test. The trial judge properly overruled the objection. Neither was relevant to this particular witness's testimony for he testified as a custodian of the laboratory and was in no position to testify as to what the other chemistsutilized for his testimony relative to the examinationof the samples. As stated before, the objection came far too late. For the foregoing reasons, judgment of the trial court is affirmed.

We con 

### y5/ Hon. Robert Keller, District Judge, sitting in place of Mr. Chief Justice James T. Harrison.