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State v. Gaudreau

Supreme Court of Rhode Island

June 16, 2016

Gary Gaudreau.

         Providence County Superior Court P1/09-2058A Associate Justice Netti C. Vogel Associate Justice Daniel A. Procaccini

          For State: Virginia M. McGinn Department of Attorney General

          For Defendant: Catherine Gibran Office of the Public Defender

          Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.


          Francis X. Flaherty Associate Justice

         The defendant, Gary Gaudreau, appeals from a judgment of conviction entered after a jury found him guilty of first-degree arson in violation of G.L. 1956 § 11-4-2. The trial justice sentenced the defendant to twenty-five years-with nine years to serve and sixteen years suspended, with probation-for setting fire to his place of business, Physique Gym, during a severe snowstorm in the middle of the night on March 2, 2009. This case came before the Supreme Court for argument on March 1, 2016. The defendant raises two issues on appeal: (1) he challenges the admission into evidence of a video recording of his custodial police interrogation; and (2) he challenges the denial of his motion for a new trial on the basis that the verdict was against the weight of the evidence. After careful consideration of the defendant's arguments and a thorough review of the record, we affirm the judgment of conviction.


         Facts and Travel

         The Fire and the Early Morning Investigation

         During the early morning hours of March 2, 2009, in blizzard-like weather conditions, the Physique Gym on York Avenue in Pawtucket became engulfed in flames.[1] At around 3:40 a.m., the Pawtucket Fire Department received a call and responded to the fire. The first officer to arrive at the scene reported the fire to be "code red, fully involved, " meaning that it was "an actual active confirmed fire" and "more progressed than you would normally expect on a certain arrival time." Battalion Chief Timothy Mercer said that the fire was fought during "[s]ome of the worst conditions [he'd] experienced, " with "single[-]digit cold, heavy snow and quite windy." Mercer described the conflagration as "quite extensive, " that "[f]lames were already shooting out the windows, [and a] heavy smoke condition [was] reducing the visibility in the area quite substantially."

         At about that same time, at 3:50 a.m., the gym's proprietor, Gary Gaudreau, called the police to report a breaking and entering at his home. Predictably, Mr. Gaudreau quickly became the primary target of police interest for what was already suspected to be an intentional arson.

         Officer David Dolan reported to Gaudreau's home to investigate the reported breaking and entering. Because of the hazardous conditions, it took him approximately thirty minutes to go the four miles from the police station to Gaudreau's home. The officer said that he was "paying special attention" because he had been informed on his way to the investigation that Gaudreau's business was ablaze. Upon arrival, Officer Dolan observed only one set of tire marks on the snow-covered driveway and he did not see any footprints on the sidewalk, in the driveway, or in the front yard. However, when he walked up the driveway toward the detached garage, Officer Dolan did see one set of footprints leading from the garage to the back porch area.

         When Officer Dolan reached the back door of the home, he noticed a broken Plexiglas window, with glass on the ground, both outside and inside the door. Gaudreau admitted the officer into the kitchen and living room. At that time, Gaudreau told him that he had left his house at approximately 1:30 a.m. and drove around for a couple of hours because he was unable to sleep. He said that he returned home at approximately 3:40 or 3:50 a.m. and called the police about the break-in. Gaudreau also told the officer that the only thing that was missing from his home was a "fanny pack" that had been on an ottoman in the living room. He said that the fanny pack contained his keys to the gym, his wallet, and an unloaded handgun. Dolan did not investigate the rest of the house, relying on Gaudreau's statement that he had searched the house and had found no one present and no other broken windows. Gaudreau also showed the officer an alarm-type system in his living room, explaining that "[w]hen it registers a noise, such as glass break [sic], there is a delay and then an alarm sounds." Gaudreau explained that he believed that whoever had broken in came through the rear window, became spooked by the alarm, and grabbed the fanny pack before leaving through the same window.

         At Officer Dolan's request, Gaudreau showed him the garage, where the officer inspected the interior and exterior of the car, finding nothing of interest except that, when he touched the hood of the car, it felt cold. Officer Dolan explained that Gaudreau was helpful, cooperative, and even talkative throughout his investigation, but that he appeared to be "walking very slowly and deliberately, " or "gingerly." Officer Dolan said that he was at Gaudreau's house for about ten minutes, but Gaudreau did not mention that he was aware that his business was on fire until the end of the investigation. At that time, Gaudreau told the officer that he was going to drive over to the scene of the fire at his gym.

         Meanwhile, the battle to fight the blaze continued; the fire had progressed to a "third alarm, " meaning that the battalion chief had twice called for additional apparatus and manpower from within Pawtucket, as well as "mutual aid" from other communities. David Curran, a fire investigator with the State Fire Marshal's office, arrived and photographed the scene in those early morning hours.

         Detective Scott Feeley of the Pawtucket Police Department, the lead detective on the case, spoke to firefighters at the scene and contacted the property owner, George Gardinar. Mr. Gardinar informed Det. Feeley that he leased the property to Gaudreau for use as a gym and that he had allowed his insurance policy on the building to lapse a few years earlier. Detective Feeley then contacted Gaudreau and asked to speak with him at the police station about the fire and the breaking and entering. Around 7 a.m., he and Det. Robert Matook informed Gaudreau of his Miranda rights and informed him that, although he was a suspect, the interview was voluntary; the interview was not recorded.[2] Gaudreau told the detectives that he left the gym the night before at approximately 9:30 p.m., stopped at a bank on his way home, and made a deposit. He said that he was at home for a few hours and then he went for a drive at about 1:30 a.m. because he could not sleep. He said that he drove into and around Seekonk, Massachusetts, before returning home around 4 a.m. Detective Feeley said that Gaudreau told him that someone had broken into his house while he was out driving and that whoever broke into his home had taken his fanny pack containing his gym keys, his wallet, a firearm, and cash. After the interview, Det. Feeley searched Gaudreau's car, house and garage, but nothing was seized, and Gaudreau returned home.

         However, when Det. Feeley returned to the station, he was notified that a witness had contacted law enforcement at the scene of the fire. Paul Richard, a snowplow driver, met Det. Feeley at the police station and told him that he had seen Gaudreau at the Physique Gym earlier that night when he was plowing snow. He gave the detectives a signed statement explaining that he was called into work at about 9 or 10 p.m. that night to plow in the area of the gym. He said that he saw Gaudreau, with his car backed up to an open door at Physique Gym with the trunk open, at approximately 1:45 a.m. Mr. Richard explained that he was familiar with Gaudreau and with his car because he was a member of Physique Gym. About 15 minutes later, Mr. Richard recalled seeing Gaudreau in his car at the intersection of Newport and Columbus Avenues; indeed, he recalled flashing his lights for Gaudreau to go through the intersection. Mr. Richard also identified Gaudreau from a photo array.

         The Interrogation

         Not surprisingly, after he was identified by Mr. Richard, Gaudreau was asked to return to the police station around noon. Gaudreau voluntarily returned, again waived his Miranda rights, and was interviewed again. The second interview was videotaped. At trial, the video interrogation was played for the jury during Det. Feeley's testimony. The interrogation began with the detectives asking Gaudreau to once again explain his whereabouts during the preceding night and early morning. After Gaudreau essentially repeated the same story that he related to Officer Dolan and during his 7 a.m. interview at the police station, the detectives asked him directly, "You had nothing to do with starting this fire?" Gaudreau responded, "Nothing to do with starting this fire."

         Detective Feeley then said, "Well, now that we have that taped, I want to read the statement we have –." He then read from Mr. Richard's sworn statement explaining that he had seen Gaudreau at the gym around 1:45 a.m. Detective Feeley said he "showed him eleven pictures and guess who he picked out as the guy who was coming out the door at 1:45 a.m.?" Gaudreau responded, "Not me." Gaudreau also denied the detectives' accusations that "the jig is up, " that it was Gaudreau who set the building on fire, that there was a witness who knew him, and that Gaudreau was lying. The detectives repeatedly told Gaudreau that he was lying, that he made false statements to the police, that he made up the "cockamamie" story about his house being broken into, and that they were sure they would find his fanny pack at the gym.

         Gaudreau steadfastly refused to change his story, saying, "The guy might have seen me earlier, but he didn't see me anywhere near that time." When he continued to deny any involvement in setting the fire, Det. Feeley finally said, "You're being charged with second degree arson. This is your last chance to be remorseful and give us a reason." But after they failed to wrest a confession out of Gaudreau, the detectives left the room.

         Curran, the fire inspector, who was also at the Pawtucket police station to meet with detectives and Gaudreau, advised the police that, because the building had been occupied within the past six months, the appropriate charge would be first-degree arson. When the detectives returned to the interrogation room a few minutes later, they informed Gaudreau that he would be charged with first-degree arson, a capital offense. Detective Feeley said, "So, is there anything you want to say? Because this is the last time we're ending the interview. We're going to bring you downstairs." Gaudreau said, "No, " and was placed under arrest.

         The Post-Arrest Investigation

         After Gaudreau was arrested, the detectives brought him to the cellblock to process him and to seize his clothing, so that they could be tested for accelerants. When Gaudreau's clothes were removed, the detectives observed large sores on his lower legs and slight injuries on his hands. When asked what had happened to his legs, Gaudreau replied that it was a rash. Gaudreau was brought to the hospital to be treated for his obvious injuries; Det. Feeley was informed by medical personnel that the sores were second-degree burns.

         Detective Feeley then obtained warrants to search Gaudreau's home for a second time, the garage, and the gym. In addition, the detective sought assistance from Sgt. Michael Peters of the Massachusetts State Police, a certified accelerant detection canine handler, who was brought in the next day. Sergeant Peters worked with a dog trained to search a fire scene and alert to the presence of petroleum products, or "flammable liquids that are carbon-based, gasolines, kerosenes, diesel fuels."

         There were no alerts from Gaudreau's car, residence, or the clothing that had been confiscated at the time of his arrest. However, the dog did alert to four areas at the scene of the fire. Upon excavating, or de-layering, two of the areas, burned paper towels and the melted remains of what appeared to be a thirty-gallon Rubbermaid-type barrel were discovered. Also, a strong odor consistent with gasoline, one cap from a gas can, and rubber mats covering the floor were found. The other two areas also were de-layered and washed down, and irregular and "very significant burn pattern[s]" were discovered, consistent with "flammable liquid being poured out of a container and then ignited."

         At each of the four alert sites, fire inspector Curran collected samples in certified evidence cans to send to the state crime lab. Outside the building, near an entryway, a fanny pack and what appeared to be the remains of a coat were found on the ground. Investigators recovered a scarf and fanny pack wrapped inside a charred "puffy type" winter coat and a set of keys to the premises that was "still in the lock." The fanny pack contained a loaded handgun and Gaudreau's wallet, driver's license, pistol permit, eyeglasses, a cigarette butt, and about $493. The jacket pockets contained a small can of lock deicer, business cards, and a lighter. Burned matter and charred debris in tissues in a bathroom wastebasket were also seized from Gaudreau's home, even though the accelerant detection dog never alerted to anything in the house.

         Curran later testified that it was his opinion that, to a reasonable degree of scientific certainty, there were four separate areas of origin for the fire and the cause was an intentional act of fire setting. He opined that:

"the gasoline had been introduced into the trash cans, and even the gas cans were left behind within these trash cans. And at that point, a piloted flame or a match or a cigarette lighter, more than likely a match, * * * was brought into contact with the contents of the trash cans and the gasoline."

         When he was cross-examined at trial, Det. Matook[3] admitted that, although he seized several items-a gas can, rag, and burned fabric found in the car; the tissues and burnt matter found in the bathroom; a cigarette butt found in the burned jacket-he had not submitted any of those seized items to the state crime lab for analysis for accelerants or for DNA testing. He also conceded that the police did not dust for fingerprints at Gaudreau's house; they had not obtained financial documents from defendant's house or contacted Citizens Bank about Gaudreau's bank account; they never investigated whether he was current on his mortgage, nor had they sought to obtain security footage from gas stations that were located near Gaudreau's home and business.

         Kim Freeland, of the Rhode Island state crime laboratory, testified that several samples from the fire scene had tested positive for gasoline and other types of volatile components. Kevin Murphy, a senior fire investigator with the Rhode Island State Fire Marshal's office, said that he had examined the electrical service and concluded that the cause of the fire was not electrical.

         The Trials

         On July 2, 2009, Gaudreau was charged by indictment with first-degree arson (count 1) and knowingly making a false statement of a crime in violation of G.L. 1956 § 11-32-2 (count 2). Pretrial motions were heard before a justice of the Superior Court on November 14 and 15, 2012. The trial justice severed the two counts for trial and proceeded on the arson charge to ensure that defendant was not prejudiced by the state's allegations that he made a false claim to the police when he reported the breaking and entering at his home.

         The defendant sought, in limine, to suppress the videotaped interrogation on the grounds that comments by the detectives on the tape were irrelevant and highly prejudicial, and constituted inadmissible testimony concerning witness credibility. During a lengthy argument about the video spanning two days, defendant requested that, if the tape was not suppressed entirely, then it should be redacted and the jury should be given a cautionary instruction about the detectives' comments. The trial justice denied defendant's motion to suppress, but ordered that two lines at the end of the tape-about the veracity of the snowplow driver-be redacted. On the day that the tape was to be played before the jury, defendant again raised an objection to the videotape and again requested a cautionary instruction. The trial justice decided to give a brief instruction just before the video was played, explaining the context of the interrogation.[4]

         However, that trial ended in a mistrial because the jury was unable to reach a verdict. A second jury trial began before a second trial justice in September 2013. The parties agreed that the evidentiary rulings from the first trial would constitute the law of the case and that the exhibits marked as full in the first trial would be admitted as full exhibits in the second trial. The defendant requested that the trial justice acknowledge his objection on the record to the ...

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