No. 12572 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

JAMES BURTCHETT, 

Defendant and Appellant. 

Appeal from: District Court of the Twelfth 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, Assistant Attorney General, argued, 

Helena, Montana 

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

Submitted: June 12, 1974 

Decided : SEP 13 1974 

Filed :$w 13 1974 
Honorable Robert Keller, District Judge, sitting in place of 

Mr. Chief Justice James T. Harrison, delivered the Opinion of 

the Court. 

Appellant, defendant below, was convicted of the crime 

of arson in the first degree and arson with intent to defraud 

an insurer, by jury, in the district court of the twelfth judicial district of the State of Montana, in and for the County of 

Hill, before the Honorable Bernard W. Thomas. 

Appellant's residence, located six miles south of Havre, 

Montana, was substantially destroyed by fire on the night of May 

14, 1971. The Havre city fire marshal, Richard D. Habeger, who 

was also a special deputy state fire marshal, inspected the 

premises on May 15, 1971, took several pictures, but was unable 

to make a determination as to the cause of the fire. The State 

Fire Marshalts Office, at the instigation of the appellant's 

fire insurance company, called Habeger and requested that he go 

back to the premises for a more detailed inspection. Habeger 

returned on May 21, 1971, took 15 or 20 photographs and collected 

samples from seven different holes burned in the floor. Samples 

from one of the burned holes, adjacent to the floor furnace, were 

placed in a two pound coffee can, ultimately admitted into evidence as exhibit D; samples from six other holes, further removed 

from the floor furnace, were placed into another two pound coffee 

can, and ultimately marked as exhibit E, but refused admission 

into evidence at the trial. Habeger mailed both exhibits to the 

alcohol, tobacco and firearms laboratory in Washington, D.C.,for 

examination and report on May 24, 1971. He did not receive an 

immediate reply. 

In August, 1971, appellant encountered Habeger at the 

Hill County Fair and asked if there had been any results from 

the investigation. Habeger replied in the negative. In March, 

1972, appellant settled his claim with his insurance company, 
decided to tear down what 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 fire department and with Hill 

County, but not specifically with 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 department was moving its 

residence and Habeger was on vacation. The letter with the results was deposited with some junk mail in a cubbyhole in a desk 

in the new firehall where it lay unnoticed until late September, 

1972, some 15 months 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 "preindictment delay" can be the denial of due 

process. United States v. 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 intentionally delayed to gain some tactical 

advantage over appellant, or to harass him. United States v. 

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 instance was 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 substantially prejudiced thereby. 

At a pretrial suppression hearing and at the trial, appellant called as a witness a chemist from Northern Montana College 

who testified that by the use of a gas chromatograph he could 

determine whether 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 (from thawing 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 heatland analyzed 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 chemists received 
these 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 several months, there 

was no reliable technique known to detect and identify the petroleum distillate. In addition, they testified that the sooty residue from the kerosene burn 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 Dl one of the coffee cans containing samples from 

one of the holes burned through the floor. The contention is without 
merit, both factually and legally. 

Deputy state fire marshal Habeger testified that he 

took all of the samples from each of seven holes, that he put 

two or three samples from the first hole in one can (exhibit D) 

and then he put the remaining samples in the 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 sketch he 

indicated "point of origin". Hole number one was never established 

as the "point of origin' by any proof; in fact, Haberger testified that he believed all seven holes to be simultaneous points 

of origin. Appellant's counsel continued to refer to hole number 

one as the 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 first three holes in 

the first can and samples from the remaining four holes in the 

second can. Since Habeger could not establish which holes had 

accelerants and which ones did not, defense counsel convinced the 

trial court that the samples in the second can were comingled, 

some coming from holes that had accelerants and some coming from 

holes that did not. The same argument is being used here to show 

that the same situation was true with the first can of samples. 

The trial court was not confused by the testimony and knew that the 

samples in the first can, exhibit D, came from only one hole, the 

first hole, the "point of origin" hole. 

The only error committed by the trial court, and it was 

harmless, was in excluding State's proposed exhibit E. There 

should have been no accelerants in that house and the deputy state 

fire marshal took samples from that house and there were accelerants in both samples. What possible difference could it make, 

under the facts in this case, which hole had the accelerants? 
The State was in a position to prove that there were accelerants 

in at least two different places and exhibit E should have been 

admitted. 

Appellant's third contention is that the court erred 

in admitting the evidence from the forensic laboratory in two 

particulars. Appellant's first point is that once the samples 

reached the forensic laboratory in Washington, D.C., there were 

several people who had access to the laboratory and therefore the 

custodial chain of evidence was not established. 

The samples in question were collected by the deputy 

state fire marshal, packaged by him and mailed by him to the alcohol, tobacco and firearms laboratory in Washington, D.C. One of 

the chemists from that laboratory testified that he received the 

package, that it was kept in that laboratory and the security room, 

it was examined by one of the chemists from that laboratory who 

also testified and it had been kept in the evidence room at that 

laboratory until the two chemists brought the samples to Montana. 

This is all that is required for a prima facie case. The State 

must identify the particular exhibit as relevant to the criminal 

charge and must show prima facie that no alteration or tampering 

with the exhibit has occurred. State v. Wong Fong, 75 Mont. 81, 

241 P. 1072. Once that has been done, the burden of proving 

alteration shifts to appellant. State v. Fitzpatrick, - Mont . 

- , 516 P.2d 605, 30 St.Rep. 1052. 

Appellant additionally contends that the State failed 

to use the best evidence in proving the results of the gas chromatograph; that the chromatogram record itself should have been introduced and proof made of the standards utilized by the chemist in 

interpreting the chromatogram. The contention has merit, technical 

though it may be, but the complaint came far too late. The chemist 

who actually examined the samples testified that he 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 chemist who was in charge of the laboratory but who 

did not actually do the examination of the samples. Defense 

counsel realized during the cross-examination of this witness 

on rebuttal that he had overlooked both the chromatogram record 

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 chemists utilized 

for his testimony relative to the examination of 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.