Laws of Evidence

Johnny Storm was convicted of arson on December 30, 2010. He now appeals his conviction on a number of grounds.

The facts of the case are as follows: on April 15, 2010, the Reed Richards Science Center in Akron burned to the ground. The Center had been conducting controversial cosmic ray experiments on rats and rabbits, and a number of animal rights groups had opposed the research. Preliminary investigations by the FBl’s Special Crimes Unit determined that there was a high level of Acetone found in the debris after the fire.

Acetone is a highly flammable accelerant that can be used to help fires spread quickly through buildings. lt is very rare and its distribution is tightly controlled by federal regulations.

Special Agent Alicia Masters was in charge of the case. Her investigation quickly led to Storm. Storm was convicted of felony arson in 2001 after he used Acetone to burn down a chemical testing facility that used dogs as test subjects. He was also arrested in 2005 for felony arson when he allegedly burned down a warehouse containing lab equipment, but he ended up pleading guilty to criminal damaging, a misdemeanor. Acetone was used in that fire as well. Storm was also convicted of misdemeanor theft in 2009 for stealing twenty laptops from a university office building.

Storm and his attorney met with Special Agent Masters on May 10, 2010. During the meeting, Storm told Masters: “You have the wrong guy. l admit l would be happy to see this clinic and every one like it burned to the ground, but l wasn’t even in Akron that night; l was in Cincinnati at the Reds game.” Storm then turned to his attorney and said: “Should l tell her about the Acetone that l have in my garage?” Storm’s attorney said: “No, stay quiet about that.” (The next day Masters got a search warrant for Storm’s garage, but found it completely empty).

At trial, Masters testified about Storm’s statement in which he admitted he would be happy to see the clinic burned to the ground, and his statement about having Acetone in his garage. The prosecutor also admitted Storm’s prior arson conviction from 2001 and his arson arrest in 2005.

Storm took the stand in his own defense, and testified that he was innocent, and that he was in Cleveland at a dance club at the time of the fire. On cross-examination, the prosecutor asked him whether he told the FBl that he had been at a Cincinnati Reds game on the night of the fire; Storm denied that he said this.

Storm also called Ben Grimm to the stand. Ben Grimm is a scientist who worked at the Richards Center, and he testified that the day after the fire, he was talking to his colleague Susan, who also worked at the Center. During the conversation, Susan said to Grimm: “This is all my fault. l left the cosmic ray generator on last night by accident. lt must have overheated and caused the fire.”

ln rebuttal, the prosecution re-called Agent Masters, who testified that Storm told her that he was in Cincinnati at a Reds game at the time of the fire. Finally, the prosecutor offered Storm’s 2009 theft conviction.

On appeal, the defense argues that the following evidence should not have been admitted. The defense attorney made a timely objection to each of these pieces of evidence at trial.

• Storm’s statement about being happy to see the clinic burned to the ground.

• Storm’s statement about the Acetone in his garage.

• Storm’s arson conviction from 2001.

• Storm’s arson arrest from 2005.

• The cross-examination question about Storm’s statement regarding the Reds game.

• Masters’ rebuttal testimony reporting Storm’s statement about the Reds game.

• Storm’s 2009 theft conviction.

ln its response, the prosecutor argues that all of that evidence was properly admitted, and argues that (8) Grimm’s testimony about Susan’s statement should not have been admitted. However, the prosecutor did not object to Grimm’s testimony at trial.

You are a law clerk to a judge that is hearing this appeal.

Please prepare a bench memo explaining to your judge how she should rule on each of these eight issues, and why.