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State v. Dixon6/3/2005
e motion for mistrial, defense counsel told the trial court:
"When we received this report we told our metallurgist that we had consulted with that he would no longer be needed because the State was not proceeding on a theory that the rigid pipe had been broken, releasing the natural gas, or at least they were not presenting expert testimony to that effect. We based that on the just plain language of the report."
Defense counsel added:
"Dr. William Arnoult [a metallurgist] drafted this affidavit so that we could . . . subject State's Exhibit 70 to scanning electron microscopy. We called all over trying to find a facility to do that and then we received this report, and he at this point would say that he lacks sufficient information from the materials we sent him for him to draw any conclusion. And it would have been a costly endeavor for him to get that and so that's why we quit."
The State said that its offers to allow defense counsel to have the pipe examined were refused and that it had made Gomez available. The State also suggested that Gomez' imperfect English might account for some imprecision in his report. Defense counsel conceded that the pipe assembly had been offered to him for inspection. At the State's suggestion, the trial court examined Agent Lobdell's preliminary hearing testimony. Lobdell testified at the preliminary hearing that the vertical supply pipe through the kitchen floor had been broken off at its threads where it was joined with the horizontal supply pipe just under the kitchen floor.
The trial court's ruling was issued from the bench:
"THE COURT: This second motion for mistrial hinges upon provisions in Dr. Gomez's report, and significantly I think it refers to his conclusion number 5, which says, quote, alternatively, NG, referring to natural gas, flow may have started by voluntary or accidental breaking of the flexible hose connecting the range to the wall outlet, end quote. If I'm understanding defense counsel's argument correctly, that argument is that because of the use of the term 'flexible hose' there the defendant terminated efforts to verify or to evaluate the claim that there had been a crack occur in the threads of the rigid or solid wall pipe that is also part of this gas line assembly from the gas supply line. Did I get that right?
"[DEFENSE COUNSEL]: Your Honor, we understood there was a crack there between the rigid and the union. The question is whether that crack was the reason that natural gas was emitted, that is, whether it occurred before or after the explosion.
"THE COURT: I understand. Okay. Well, in any event, the motion is going to be denied. Under the circumstances it appears that this case has always been pretty much tried on the premise that this defendant was responsible for the creation of a crack that occurred at the joint between the rigid supply line and the -- what I call the gas pipe riser, which is also a rigid gas pipe, where it's threaded together. Now, Dr. Gomez's report refers to the flexible hose, which he now indicates he calls the whole assembly, which includes a part flexible line and part rigid line, but it also refers to the wall outlet, which there is no wall outlet, it comes up through the floor. Everybody has agreed to that. Under those circumstances, I don't think that this report so significantly misled anyone that I would call it the basis for a mistrial under these circumstances. I think it's already been clear what the State's contention was where the crack occurred and the circumstances of the claim on the part of the State. So, . . . the motion is denied."
As noted by the trial judge, in planning a defense strategy
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