For those of you who are in danger of becoming homeless on the streets of Ukiah — Heaven forfend — remember this: Don’t expect to be toasting marshmallows around a cheerful campfire. People who have never been homeless and had to live out on the streets may think of it as a kind of fun adventure, like a campout, but those who have been there know it’s no picnic.
If you are homeless you are by definition on somebody else’s property, even when it’s public property, and the last thing you want to do is draw attention to yourself. And so fires are strictly verboten! First off, they are impossible to hide. A fire is a beacon at night. And during the day, the smoke sends out a signal of the worst kind, because it alarms the citizens, terrifies those who have homes nearby, and in short order here comes the law.
So when Richard Caulkwell built a fire with Duraflame Logs® on the wooden deck of a vacant house where he was trespassing for the night, he should have known better; Mr. Caulkwell is a veteran of the local homeless habitat of many years standing; this was not his first picnic, to put it euphemistically. Still, the officer dispatched to the scene with the fire truck crew, Officer Brett Chapman of the Ukiah PD, let Mr. Caulkwell off with a warning.
“I told him it was dangerous and in future not to have a fire on a wooden deck like that.”
That was on December 1st. On January 19th Mr. Caulkwell set a vacant building on fire and would himself have burnt up with his dog in the fire if another officer, Chase Root of the CHP, on his way to work at 6am, hadn’t seen the flames and broke into the building and put the fire out.
“The flames were eight-feet high and I could see a person sleeping on the floor,” Officer Root said. "I started banging on the window and yelling to wake the sleeping person, but finally had to tear the plywood off [covering the door] and break inside to put the fire out.”
Officer Root had only been on the job four months and was with CHP Field Training Officer (FTO) Ogden, who helped him break into the abandoned storefront, formerly known as The Smoke Shop on North State Street, which had been the scene of a previous fire. Mr. Caulkwell and his dog were saved from the flames and an investigation by Fire Chief Justin Buckingham showed that Caulkwell had gone to sleep with a candle burning. Criminal negligence or merely reckless? The Fire Chief, who had been at the scene of Caulkwell’s Duraflame Logs® fire on the wooden deck in early December, and had heard Officer Chapman give Caulkwell the warning about being careful with fire, thought Caulkwell had been reckless, and the Chief wanted him prosecuted for it under Penal Code 452. The District Attorney agreed, and Mr. Caulkwell was brought to trial.
There being such a fine distinction between negligence and recklessness, DA David Eyster himself took the responsibility of proving it to a jury; and over at the Office of the Public Defender a similar assessment must have been made because the Public Defender himself, Jeffery Aaron, took Caulkwell’s defense in hand.
These two alpha males of the legal-beagle breed, like two bulls pawing the ground, ready to lock horns, butt heads, and test each other’s strength and will has been long anticipated at the courthouse. Jury selection was too crowded for an audience, but as the trial began junior lawyers from both offices came in to watch the contest. Other than idle spectators and a newspaper reporter – there being no victims or supporters of the homeless guy – the gallery was vacant.
A 402 admissibility hearing outside the presence of the jury got things under way. There was a question as to whether Mr. Caulkwell had been read his Miranda rights before making certain statements to Officer Chapman. What Chapman asked Caulkwell was how the fire had started, but the dodgy defendant answered that he was trying to put it out – after the CHP officers broke in and woke him up, his face and beard already badly singed from the flames.
A short video was shown. It was from Officer Chapman’s body camera. It showed Chapman standing and talking with a fire truck and CHP cruiser in the background. It lasted two-and-a-half minutes. Mr. Aaron wanted to show that his client was “detained” at the time, and therefore should have been “Mirandized,” as the lawyers say. And so Aaron was quite belligerent with Chapman in asking whether Caulkwell was free to go, a hazy point, since the Peerless handcuffs were still in a leather pouch on Chapman’s duty belt rather than on Caulkwell’s wrists.
Cops know they have some leeway on the issue of when an arrest becomes actual, as opposed to being theoretical, and Aaron made a point of asking if Chapman would have gone after Caulkwell if he had just walked away – naturally, Chapman equivocated; and naturally Aaron tried to nail him down.
Eyster tried a series of objections, in sympathy with his witness's uncomfortable predicament, saying Caukwell’s had not been a “custodial interrogation,” but Judge John Behnke overruled the DA and let Aaron go at the officer like a fox terrier nipping at your pant-leg. In the end, however, it was all for Caulkwell’s benefit, to show that he was getting a vigorously forceful and wonderfully daunting defense by putting the officer on the spot and making him squirm, because getting somebody off on these Miranda technicalities never holds up in real-life courtrooms (like they do on TV).
Judge Behnke said, “When Miranda kicks in is when a defendant is in custody or otherwise deprived of his freedom, to the extent that a reasonable person would believe he was being detained. Mr. Caulkwell’s hair and beard had been singed and he was undoubtedly a suspect, but the subject [Caulkwell] had not been formally arrested; absent formal arrest, the next thing to consider is the length of the questioning and, as to the two-and-a-half minutes, I don’t consider that a lengthy detention. The ratio of officers is a factor the court can consider but I don’t think the CHP vehicle in the background contributed to it; and as to Officer Murray’s participation, it was a kind of an 'Oh, c’mon, Richard' friendly way of asking, as it was obvious he’d had previous contact with the subject -- which mitigates against the degree of pressure applied – not a huge degree and the length was not too long; then there’s the extent to which the subject was confronted with evidence, of which there wasn’t any – all the officer said was 'Come over here, Richard, and tell me how this fire got started.’ So the request to exclude the statements made to the officers is denied.”
The court then took up the 1101-b issue as to whether the jury would be allowed to hear how the defendant had started the fire on the deck of a vacant house, and how he (Caulkwell) reputedly said, “I learned my lesson before,” in reference to the talking-to Officer Chapman gave him at the time, and how he (Caulkwell) added, “I’m grateful to you guys,” showed awareness of the “substantial or justifiable” risk of starting a fire…
“If the 1101-b evidence is allowed in,” Judge Behnke said, “I’d be giving the jury an instruction limiting it to evidence of an element of the crime – the third part of the triad – as to the Evidence Code.”
Mr. Aaron thought otherwise.
“Before it was Duraflame Log®; now it’s a candle. Before it was on a wooden deck; now it’s on a brick, a cinderblock, some kind of masonry, and the floor looks like concrete [the ash and fire extinguisher chemical left on a wooden floor made it look that way]. Then, it was a house; now, it’s an abandoned business. He’s learned his lesson and grateful they came.”
Behnke said, “Starting a fire could lead to a fire spreading,” when Aaron quipped up pertly that the judge was being pedantic, mocking his honor with a droll remark about how “Jeeze, judge, any spark could lead to a fire, any fire to a fire spreading… hew hew hew…” Behnke eyed Aaron’s jest soberly and went on as if there’d been no interruption. “The DA has to prove the defendant’s awareness of the risk, so I’m not going to exclude it. But I’ll be very careful to give a limiting instruction solely to the issue.”
With that, the bailiff went out and rounded up the jury and DA Eyster presented his case, calling Officer Chase Root, who gave his evidence as staunchly as can be expected of a youth taking the stand for his first time.
When it came time for cross-examination – which Officer Root must necessarily have been dreading after the way Aaron had grilled Officer Chapman during the 402/Miranda hearing – all Aaron had to say was, “Thank you for saving my client’s life, Officer Root.”
The difficulty came when Fire Chief Buckingham took the stand. Mr. Aaron bit hard and tenaciously into the fact that Chief Buckingham had asked for the felony charge to be brought, after having determined that Caulkwell had recklessly lit the candle in the building and gone to sleep with it still burning; however, Mr. Aaron was quick to point out that in the Chief’s report the act of leaving the candle lit was referred to as “negligent” and “careless,” but not as “reckless.”
There was a good show of head butting over this as the questioning went back and forth, from cross to redirect, back to cross and again to redirect until, finally, Eyster smiled in his most winning way and said he’d pass.
Aaron’s point was that the fire was accidentally set, not recklessly; he had said as much in his opening statement, and reiterated it emphatically in his closing remarks. The DA, on the other hand, was confident he’d proved his point on recklessness, and as it happened he nearly got the conviction.
However, one juror was persuaded by Mr. Aaron to the contrary, she was adamant about it, and the jury hung. On Wednesday a message was sent to the judge saying how hopeless it looked. The lawyers were summoned to chambers and after a long time in the judge’s chambers they came out. Some of the people who had been watching the trial exchanged murmurs as to what the expressions of the faces of the Two Big Bulls (Eyster and Aaron) could tell us about how it went in chambers.
“If the DA’s scowling, it’s bad; if he’s smiling, it’s good; but if he’s stone-faced, watch-out!”
“He’s not scowling, it must be good.”
“He’s not smiling, either, maybe it’s bad.”
“Something funny’s going on, Aaron seems unconcerned.”
“Aaron always seems unconcerned.”
“Maybe he is.”
“Is what?”
“… uh, unconcerned?”
“Here comes the judge. He looks tired.”
“He’s getting old, you know.”
“Come to order, court’s again in session.”
“Calling the Caulkwell matter, the jury says they’re at a deadlock, and over the years I’ve developed a way of handling situations like this, and I intend to send an instruction I’ve found to be useful.”
The instruction was sent, another day went by, and I was down at the local watering hole when a lawyer came in and told me how it all ended – one juror wouldn’t budge and the jury hung; but, remarkably, the defendant buckled and pled to the charge before the DA could re-file the charges.
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