If you do the Crime You Must Do the Time

Arson Conviction Upheld

As I have written often, arson for profit is a stupid crime. It leaves physical evidence. Lies about the cause can usually be countered by physical evidence. Fire never totally destroys a property in a large city with a professional fire department. In this case an attempted arson for profit resulted in a sentence of more than twenty seven years with the perpetrator getting nothing more three squares and a cot at the discretion of the state of Wisconsin.

In State of Wisconsin v. Colin J. Habram, Appeal No. 2017AP2399-CR, Appeal No. 2017AP2400-CR, State Of Wisconsin In Court Of Appeals District II (January 16, 2019) Colin Habram found himself pleading to various crimes that resulted in convictions for maintaining a drug-trafficking place, arson, and intentional mistreatment of animals. After his sentence he moved for an order for postconviction relief which was denied.

FACTS

Habram’s troubles stem from several cases, two consolidated for his appeal. The first arose after and incident to a search warrant of Habram’s residence where police found drugs and drug paraphernalia. He was charged with maintaining a drug-trafficking place, possession of an illegally obtained prescription, and possession of drug paraphernalia, all as a repeater.

In the second case, Habram called 911 at about 3:30 a.m. saying his house was on fire. He told responding officers that he came home to find a door pried open, his kitchen “slightly trashed” with broken glasses and a bathroom cabinet door on the floor, his bedroom dresser ransacked, and “black, thick, heavy smoke” pouring from a spare bedroom he rented out. Habram denied any involvement.

A few hours later, Fond du Lac Police Department Detective Lee Mikulec, who responded to the scene, and Brian Liethen, a special agent assigned to the Office of the State Fire Marshal, contacted Habram. Both Mikulec and Liethen are trained in fire inspection.

After delays allowed by the officers, Habram was seated in an unlocked interview room. He was not handcuffed or frisked. Liethen told Habram he was “not going to arrest [him] or anything like that,” and that Habram could take bathroom or cigarette breaks, although he would be accompanied to smoke so he could get back inside the building. He also was offered food and beverages.

The total interview lasted just under three hours, most of it gathering factual information such as the timeline of events, the layout of the house and its contents, and Habram’s home ownership and insurance coverage. Mikulec testified that the overall tone was “extremely mellow” and conversational.

About eighty minutes in, Habram asked, “I don’t mean to sound rude or anything, but do you know how much longer we’ll be?”  Habram asked, “Am I good to go then or what?” Liethen replied, “I don’t think you’ll be much longer here. We’ll get you right back.”

In the last approximately forty minutes, the tone changed. Liethen told Habram he did not believe Habram’s story because, based on the fire specialists’ many-hours inspection of the scene, he believed the fire was deliberately set and that the evidence pointed only to Habram. Habram at first denied it, but ultimately admitted that, depressed over his heroin addiction, precarious financial situation, and a failed love relationship, he decided to end his life, and set the fire using lighter fluid as an accelerant. His dog and cat perished. After signing a written statement, Habram was allowed to leave the police station. At no point was Habram given warnings required by Miranda v. Arizona, 384 U.S. 436 (1966).

THE ARREST

Habram was arrested the next day. He was charged with arson of a building, arson of a building with intent to defraud, first-degree recklessly endangering safety of police and fire personnel, and intentionally mistreating animals, all with the repeater enhancer. He faced over 123 years’ imprisonment.

Habram, as part of an agreement with the prosecutor, pled no contest to the arson, animal mistreatment, and drug-trafficking-place charges, cutting his exposure to fifty-five years and six months.  He was sentenced to an aggregate twenty-seven years’ imprisonment.

DEFENSE COUNSEL’S ADVICE

At the hearing on the postconviction motion, Habram’s counsel, Haase testified that he reviewed the recording of Habram’s police-station interview, that he was aware that Habram had not received Miranda warnings, and that whether to seek the statement’s suppression was one of the first issues he considered. He testified that he discussed with Habram the possibility of seeking to suppress it on both involuntariness, due to heroin intoxication, and Miranda grounds and that he told Habram the Miranda claim was the stronger argument.

Noting that the State’s offer reduced Habram’s sentencing exposure by about seventy years, Haase said he explained the risk of being convicted of all the charged offenses at trial but whether to plead was solely Habram’s decision and Haase would have abided by it.

Contrary to Haase’s testimony, Habram testified that Haase did not discuss with him the option of moving to suppress his arson confession based on a Miranda violation. The circuit court concluded that Habram was not in custody during the interview, finding that most of the questioning was “relatively benign, informational,” that Habram’s “vague and nebulous” queries about the length of the interview were not requests to terminate it, and that a reasonable person in similar circumstances would have felt free to leave.

The trial court found that Habram failed to prove that Haase was ineffective because of the speculative nature of the claim about failure to use Miranda.

ANALYSIS

To withdraw a plea post-sentencing, a defendant must establish by clear and convincing evidence that plea withdrawal is necessary to correct a manifest injustice.

To prevail on an ineffective-assistance claim, the defendant must show that counsel’s representation fell below an objective standard of reasonableness and that a reasonable probability exists that, but for those unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

The court of appeal noted that Miranda warnings are required only in the context of a custodial interrogation. It is undisputed they were not given to Habram.

In determining whether an individual was “in custody” for Miranda purposes, the Court of Appeal considers the totality of the circumstances, including the individual’s freedom to leave; the purpose, place, and length of the interrogation; and the degree of restraint. Degree-of-restraint factors include whether: the individual was handcuffed or otherwise restrained; a weapon was drawn; a frisk was performed; the individual was moved to another location; questioning took place in a police vehicle; and multiple officers were involved. A person is in custody if a reasonable person in the same circumstances would not feel free to terminate the interview and leave the scene.

Habram voluntarily rode with Mikulec from his hotel room to the police station.

The interview room door there was closed but not locked. Habram was not frisked, handcuffed, or otherwise restrained, and was allowed four breaks.

The roughly three-hour interview was not “excessively long.” The bulk of it was conversational information gathering necessary to a fire investigation. Even after the tone turned accusatory and Habram gave his statement, he was not arrested. Instead, Mikulec offered to “help you out today … if we took you to the hospital to try to … help you get rid of this dope sick right now.” When Habram declined, they drove him back to his hotel.

A witness told police that Habram talked to her several times about burning his house down just days before the fire. Haase also explained to Habram that going to trial would take the State’s offer off the table, and posed the risk of being convicted of all the charged offenses, vastly increasing his sentence exposure.

Even if a defendant shows that particular errors of counsel were unreasonable, therefore, the defendant must show that they actually had an adverse effect on the defense.

A showing of prejudice requires more than speculation; the defendant must affirmatively prove prejudice. Because Habram failed to establish that he was prejudiced by any of the claimed deficiencies on the part of his defense counsel, the court of appeal affirmed the judgments and Habram will be required to serve the sentence imposed by the trial court.

ZALMA OPINION

Habram attempted an arson for profit. He told a girlfriend of his intent days before the fire. The physical evidence at the fire scene contradicted his factual claims. Facing more than 100 years in prison Habram pleaded guilty to many of the charges and in so doing reduced his exposure to over 80 years of imprisonment. Regardless, the sentence required he serve many years in prison so he attempted to get it reversed by claiming incompetent representation by his lawyer. The argument, as justice required, failed.


© 2019 – Barry Zalma

This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States.  The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.

Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant  specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and zalma@zalma.com.

Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.

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About Barry Zalma

An insurance coverage and claims handling author, consultant and expert witness with more than 48 years of practical and court room experience.
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