On Appeal from Superior Court, Chittenden Unit, Criminal Division Michael S. Kupersmith, J.
The opinion of the court was delivered by: Dooley, J.
State v. Vuley (2011-087)
PRESENT: Reiber, C.J., Dooley, Skoglund, Burgess and Robinson, JJ.
¶ 1. What are the chances? This case poses the question of when that familiar rhetorical question is also a valid legal inference. Defendant was convicted of two counts of arson after four unexplained fires occurred at his rented house within an eight-week period. The trial court itself relied upon--and instructed the jury that it might rely upon--the fact that rare events like fires do not normally happen together in order to infer that defendant willfully started the fires. Although we agree that there are potentially valid inferences to be drawn from the multiplicity of fires, we cannot approve the trial court's instruction. However, we affirm because the error does not rise to the level of plain error.
¶ 2. In late 2008 and early 2009, defendant and his family rented a single-family home with a detached two-car garage in Colchester. Between November 28, 2008, and January 18, 2009, the Malletts Bay Fire Department, as well as the Colchester Police Department, responded to four separate fires at that residence. These fires represented four of the ten fires to which the Malletts Bay Fire Department responded in all of 2008 and 2009.
¶ 3. At around 1:00 p.m. on November 28, 2008, flames engulfed the detached garage at defendant's residence. By the time the fire department arrived, the fire had broken through the roof and was blowing out of the top of the structure. The fire destroyed the garage, but the fire department was able to contain it and keep it from spreading further. A neighbor testified that before the firefighters arrived defendant was unsuccessfully attempting to put the fire out with a small kitchen fire extinguisher. Responding officials described defendant as pacing, very upset, and near tears. He stated that he had no idea how the fire had started--one of the officials testified that he explained: "I was spending the day watching Kiss videos and getting loaded." Sure enough, firefighters made note of Kiss videos playing on the television,and a preliminary breath test of defendant revealed a blood-alcohol content (BAC) of .288. An area resident testified that, as he was watching the fire, defendant--visibly intoxicated--approached him and said, "Good fire, huh?" and "So I did a good job, then, right?" Ultimately, the cause of the fire was considered "undetermined," which was explained at trial to mean that authorities were "unable to find a definitive reason why that fire started," because of the fire's extensive destruction of any physical clues. Authorities investigated the possibility that the fire might have been caused by burning leaves in the backyard, by faulty electrical wiring in a garage light, or by an older refrigerator located in the garage, but no physical evidence was present to confirm a particular theory.
¶ 4. Approximately one month later, at roughly 6 p.m. on Christmas Day, the fire department responded to a fire in a clothes dryer in the basement of defendant's residence. The dryer was an older model and was heavily loaded at the time of the fire. Defendant's wife testified that she had started a large load of items in the dryer, including kitchen towels that defendant regularly used to clean out the deep fryer. At trial, the fire chief testified that dryers can and do catch fire, but that inspection of this dryer did not reveal any of the common malfunctions. Vegetable oils were found on some of the clothes, but no accelerants or other materials were present to suggest that the fire was deliberately set. Investigating officers said defendant told them that he was the only one home at the time, that he was doing laundry, and that he noticed smoke while he was watching television. The fire chief noted signs of intoxication in defendant's behavior, and defendant submitted to a preliminary breath test, which produced a BAC of .210. Once again, the cause of the fire was considered undetermined.
¶ 5. A little over one week later, at approximately 4 a.m. on January 5, 2009, a neighbor reported a fire on the enclosed porch of defendant's residence. A Colchester police officer arrived at the scene before the fire department, and he was able to contain the fire with the fire extinguisher from his cruiser until the fire department arrived and fully extinguished it. The fire occurred in some odds and ends of pressure-treated lumber that were stacked on the porch, which was undergoing some renovation. At trial, the police officer testified that defendant's family members were the only people in the house when he arrived, and a firefighter circled the house and found no footprints in the snow. The responding officer testified that defendant stated that he had smoked a cigarette on the porch around midnight and had seen nothing wrong. Empties showed that defendant had consumed nine 24-ounce cans of beer that night. Because of the prior fires, the state police fire investigator was called to the scene, and he ultimately concluded that the fire was "intentionally set." This conclusion was not based on physical evidence of the cause of the fire but rather on the fact that "there were no other viable ignition sources in the area to explain how the fire started." The investigator did consider the possibility that a cigarette might have caused the fire, having found cigarette butts on the porch and knowing that defendant and his wife were smokers. In fact, defendant's wife testified that defendant smokes roughly a pack a day, that she smokes five to ten cigarettes a day, and that both of them generally used the porch as the area for smoking. Nevertheless, the investigator ruled out that cause based on defendant's strong assertion that he had not dropped a cigarette on the porch that day. At trial, a defense expert disagreed with the decision not to classify the cause of the fire as "undetermined," noting that there were easily ignitable materials and that "we have a man who drinks a lot, smokes all over the place."
¶ 6. Finally, just after midnight in the early morning of January 18, 2009, the fire department responded to another fire at defendant's residence. By the time they arrived, the firefighters found the south side of the house fully engulfed in flames. The fire department was unable to prevent the fire from completely destroying the residence and all of its contents. Defendant, who had been home alone, had apparently been forced to break a window to escape the fire, and he had cut his hands on the glass, requiring medical attention. The only footprints found around the house were those of defendant evacuating. A police officer at the scene spoke to defendant and noticed strong signs of intoxication. Defendant told the officer that he had consumed "ten or so beers," at which point the officer took defendant into protective custody, where a preliminary breath test indicated a BAC of .155. At trial, a state police fire investigator testified that the fire started on the porch, just outside the kitchen. The investigator was able to rule out several possible causes for the fire, including electrical faults and environmental ignition, and he was able to determine that "it came down to human involvement somehow." He explained that "something had to be either placed there or started there to make this fire go," but he could not say whether it was intentional or not. Specifically, he noted that it was possible for a cigarette to have started the fire. The defense expert stated that the cause of the fire should be classified as "undetermined," largely because it was not possible to rule out careless smoking as the cause of the fire.
¶ 7. The State charged defendant with four counts of first-degree arson, alleging that he "willfully and maliciously . . . caused to be burned [a] dwelling house . . . or other outhouse that is parcel thereof . . . in violation of 13 V.S.A. § 502." Initially, the State also charged him with four counts of setting a fire to defraud an insurer in violation of 13 V.S.A. § 506. However, although the family had renters' insurance that paid out on the first and fourth fires, defendant's wife insisted that defendant was unaware of the policy because she handled matters of that nature. In response, prior to trial, the State dropped the four counts of setting a fire to defraud an insurer. Also prior to trial, the defense moved to dismiss all the charges for lack of a prima facie case, see V.R.Cr.P. 12(d), and alternatively to sever all the charges for separate trials. The court denied these motions as untimely filed.
¶ 8. At trial, the defense moved to dismiss all counts at the close of the State's case. Defense counsel argued that, with regard to each count, the State had failed to provide sufficient evidence to prove that the fire was intentionally set and that intent could not be inferred from the other fires. In response, the State argued that the frequency of the fires--four in eight weeks--showed that the fires were not accidental. After pressing the State, to no avail, for some legal authority to support its desired inference, the judge introduced sua sponte the so-called "doctrine of chances," which the judge described as holding that "when you have an unusual number of events that don't normally occur accidentally, the jury can infer that they occurred intentionally, and that's exactly what we have here." The judge referred the attorneys to People v. Mardlin, 790 N.W.2d 607 (Mich. 2010), State v. Allen, 725 P.2d 331 (Or. 1986), and State v. Lizotte, 109 Vt. 378, 197 A. 396 (1938). On the basis of the doctrine of chances, the trial court denied the motion to dismiss.
¶ 9. The trial court also drafted a jury instruction based on the doctrine of chances. In full, the instruction read:
In this case, there is evidence of four different fires at Mr. Vuley's home. The defense claims that each of these fires was undetermined.*fn1 It is your job to examine each incident separately to determine whether the State has proved beyond a reasonable doubt each of the elements of arson or attempted arson for each of the fires.
You may consider the meaning of the evidence that four different fires occurred at Mr. Vuley's house. The weight to be given to evidence that four fires occurred is left to your common sense and judgment. You may, but are not required to, apply the doctrine of chances, as follows. Based on ordinary common sense and human experience you may conclude that it is unlikely that this number of similar accidents would occur on the same property in a short period of time. Considered in isolation, one fire may be easily explained as an accident. However, when all similar incidents are considered collectively or in the aggregate, the doctrine of chances may create an inference of human design. You may conclude that the recurrence of similar incidents incrementally reduces the possibility of accident. The improbability of a coincidence may cause you to conclude that the fires were intentionally set.
From the evidence of four separate fires, you may (but are not required to) infer that the four fires were not the result of accidental or natural causes, but were the willful act of some person.
At the charge conference, defense counsel objected to this proposed instruction. Defense counsel began by pointing out that, in the three cases cited by the court the day before, the other incidents were not the subject of simultaneously pending charges. When asked why this should make a difference, defense counsel argued that the instruction "relieves the State of its burden . . . to prove each and every element of each and every crime." Ultimately, the court cut defense counsel off, stating "Well, we agree to disagree and I'm going to include it." The defense renewed the objection following the jury charge but did not elaborate.
¶ 10. After deliberation, the jury acquitted defendant on the first two counts, which related to the earlier incidents, but convicted on counts three and four, which related to the later incidents. Defendant appeals, arguing that the trial court erred by (1) not granting the motion to dismiss, (2) giving the jury instruction on the doctrine of chances, and (3) refusing to grant the motions to sever and dismiss for lack of a prima facie case. We first consider the denial of the motions and then proceed to the issues involving the doctrine of chances.
¶ 11. The circumstances surrounding the motions to dismiss and to sever are as follows. The information to commence this case was filed on September 30, 2009. Status conferences were held in October and November of that year, and then on January 26, 2010. At the January conference, the parties filed a stipulated schedule, with depositions to be conducted by May 1 and motions to be filed by May 15. The schedule could not be met, and at a May 11 status conference, the court extended the deadlines, setting the motion deadline at August 13 and ordering that the trial commence in September, with no further continuances. At a July 20 status conference, the parties reported that depositions had not been completed and they would not be ready for trial in September. The court continued the trial date to November without resetting any other deadlines. At a status conference in October, the court set a new trial date of December 6. Thereafter, on November 17, defendant filed a motion to dismiss for lack of a prima facie case or, if the prosecution was to proceed, to sever all counts. The court denied the motion as beyond the deadline for motions--August 13--set at the May status conference and never modified. Thereafter, the court denied a motion for reconsideration.
¶ 12. Defendant argues on appeal that the motion deadline had been impliedly extended, and it was an abuse of discretion to deny the motion for reconsideration. The two motions defendant filed in November were pretrial motions. See V.R.Cr.P. 12(b)(5), (d); Reporter's Notes 1984 Amendment, V.R.Cr.P. 12(d); V.R.Cr.P. 14(b)(4). Thus they were subject to the filing deadline of Vermont Rule of Criminal Procedure 12(c), which is the date of the status conference following arraignment, or twenty-eight days after arraignment if there is no status conference, "unless extended by the court." V.R.Cr.P. 12(c). Failure to file motions by the applicable deadline in Rule 12(c) is a waiver of the right to file the motion unless the court grants relief from the waiver "for cause shown." V.R.Cr.P. 12(f); see State v. Dann, 167 Vt. 119, 136, 702 A.2d 105, 116 (1997).
¶ 13. Defendant argues that there was no waiver here because the trial judge who conducted the July status conference, a different judge from the one who imposed the time deadlines, impliedly removed the deadline for filing motions. Defendant relies upon an interchange in the status conference in which defense counsel stated that all depositions could not be done by July 31, and the judge responded that she did not care when the depositions were done. Defense counsel then responded, "[I]t drives everything out. It drives the motion--and everything." The exchange is vague, and defense counsel does not explicitly state that the motion deadline cannot be met. The court did not extend the motion deadline, either orally or in writing. In fact, the court continued the trial date, but did not address the motion deadline. We conclude that the lawyers who were subject to a written court-imposed deadline bore the burden of having it explicitly continued or removed. The failure to do so here meant that pre-trial motions could not be filed after the deadline.
¶ 14. Defendant urges us to reach the same result by holding that the court should have granted the motion for reconsideration. The motion for reconsideration was premised on the representation that the parties "asked the court for additional time . . . to file motions" and the status conference judge "granted the joint request." The court denied the motion for reconsideration indicating that there was no entry that the status conference judge had granted such a request and the motions were not timely filed. We note that there is no support in the record for the representation that the parties requested that the motion deadline be extended and none for the further representation that the court granted the request.
¶ 15. As defendant acknowledges, the trial judge's ruling was discretionary, and we will overturn it only on a finding of abuse of that discretion. Dann, 167 Vt. at 137, 702 A.2d at 116. As we noted in Dann, the point of pretrial motions is that the court should confront them before the court addresses the merits of the case and the parties have commenced preparing for trial. Id at 136, 702 A.2d at 116. We also found important in Dann that the only reason given for why the motion could not have been filed earlier was weak. Id. at 137, 702 A.2d at 116. Here, defendant gave no reason for why the motions could not have been filed earlier, and we can see no reason in the record. Defendant did not appeal to the discretion of the trial judge, but argued the point that there had been no waiver, the argument we rejected above. We find no abuse of discretion.
¶ 16. The remaining two claims on appeal directly involve the doctrine of chances. Before reviewing them, we first address the doctrine of chances. The doctrine of chances has evolved as a theory about the grounds for the admission of evidence. Evidence of other crimes or acts is not admissible to demonstrate a person's character for the purposes of showing that a person acted in conformity therewith. V.R.E. 404(b). Against the backdrop of this prohibition, the doctrine of chances purports to offer an explanation of the logical relevance of other incidents that does not rely upon character-based reasoning. The classic articulation of the doctrine comes from Wigmore:
To prove Intent, as a generic notion of criminal volition or willfulness, including the various non-innocent mental states accompanying different criminal acts, there is employed an entirely different process of thought. The argument here is purely from the point of view of the doctrine of chances,--the instinctive recognition of that logical process which eliminates the element of innocent intent by multiplying instances of the same result until it is perceived that this element cannot explain them all. . . . [T]he mind applies this rough and instinctive process of reasoning, namely, that an unusual and abnormal element might perhaps be present in one instance, but the oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them. . . . In short, similar results do not usually occur through abnormal causes; and the recurrence of a similar result (here in the shape of an unlawful act) tends (increasingly with each instance) to negative accident or inadvertence or self-defence or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e. criminal, intent accompanying such an act . . .
1 J. Wigmore, Evidence § 302, at 611-12 (2d ed. 1923). The logic resonates with common sense. As one court succinctly explained, "The man who wins the lottery once is envied; the one who wins it twice is investigated." United States v. York, 933 F.2d 1343, 1350 (7th Cir. 1991), overruled on other grounds by Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999). An archetypal example of the doctrine is the English case of Rex v. Smith, 11 Cr. App. R. 229, 84 L.J.K.B. 2153 (1915), in which the defendant had three wives who all suspiciously drowned while taking a bath. The court held that the other two deaths were probative with regard to whether the charged death was an accident.
¶ 17. The doctrine of chances is regularly invoked in arson cases. In fact, Professor Imwinkelried illustrates the doctrine with a discussion of arson:
Suppose that the defendant is charged with arson. The defendant claims that the fire was accidental. The cases routinely permit the prosecutor to show other acts of arson by the defendant and even nonarson fires at premises owned by the defendant. In these cases, the courts invoke the doctrine of objective chances. The courts reason that as the number of incidents increases, the objective probability of accident decreases. Simply stated, it is highly unlikely that a single person would be victimized by so many similar accidental fires in a short period of time. The coincidence defies common sense and is too peculiar.
1 E. Imwinkelried, Uncharged Misconduct Evidence § 4:1, at 4-6 to -9 (Rev. ed. 2008). The cases upon which the trial court relied are examples of this reasoning. In Mardlin, for example, the Michigan Supreme Court held admissible in an arson case evidence of four previous home and vehicle fires--all of which involved insurance claims--associated with the defendant. 790 N.W.2d at 610-11. The present case poses the ...