December 5, 2021

T-Break

Let'S Talk Law

Fire Investigator Who Responded to West Sac Blaze Grilled over Qualifications to Testify As to Hearsay As a Legally-Defined ‘Investigator’

By Benjamin Porter

WOODLAND, CA – A routine preliminary hearing in Department 14 of the Yolo County Superior Court last Tuesday devolved into a nearly 40 minute orgy of legalistic lingo after the defense raised an objection regarding whether “fire investigators” can testify to hearsay, which eventually morphed into a squabble over whether the day’s third witness could even be considered a “fire investigator” at all.

The hearing included testimony from three witnesses about a fierce fire that consumed a home and damaged adjacent structures on Kegle Avenue in West Sacramento in the early morning hours of June 28, 2020.

Michael Joseph Bochantin is accused of starting the blaze by causing an explosion while attempting to make butane honey oil, also known as BHO or hash oil, from marijuana extract. Bochantin is out of custody and appeared in court at the defense table with his public defender David L. Muller.

While nobody was killed in the fire, Bochantin faces charges of causing a fire to an inhabited structure, manufacture of a controlled substance, with an enhancement for the presence of children, and abusing or endangering the health of a child.

Witness testimony began with Officer Nazariy Yakimchuk, who said he saw flames from the fire from about a mile away and that when he got to the scene, estimated them to be “100 feet high.” Yakimchuk also explained that the “approximately six or seven” children and “four to five other teenagers” visiting the house had been evacuated safely.

Yakimchuk said he had prior experience at this residence, which prompted DDA Preston S. Schaub to ask if it had “any kind of reputation in regards to minors, or rather, juveniles, hanging out at the residence.”

“With my prior experiences I’ve had, a lot of missing persons, people, [stay] at that residence,” Yakimchuk said. Among these children was a 10-year-old with cerebral palsy, who lost some of their crucial equipment and supplies to the fire.

In cross-examination, PD Muller confirmed with Yakimchuk for the record that, prior to the fire that day, there were numerous calls about people setting off fireworks and firing handguns in the area, but that no evidence of fireworks was found, decreasing the possibility that fireworks might have had something to do with the origin of the fire.

After stating at the beginning of the hearing that the second witness would likely not attend despite being under subpoena, DDA Schaub then began direct examination of “CE,” a friend of Bochantin. Elias testified that she had contact with Bochantin immediately after the fire occurred.

“What did he tell you in regards to how the fire started?” Schaub asked.

“He said he f***ed up,” CE said. “And he felt really bad, and he was tired, he doesn’t know why it keeps happening to him, he feels bad.”

After Judge Dave Rosenberg overruled an objection from Muller about a potentially leading question about whether Bochantin talked about making butane honey oil, CE said that he “did not say that, but did say he f***ed up […] he was in a lot of pain and crying.”

CE also said that her ex-boyfriend had informed her of a conversation he’d had with Bochantin in which he might have mentioned other fires in which he’d been involved.

Once CE was excused, the last witness of the day, Timothy Michael Hall, who introduced himself as a “fire engineer/fire investigator” with 14 years of experience, was sworn in. Hall was one of the firefighters who responded to the scene to try to suppress the fire, and later conducted the investigation into the fire’s origins.

While the entire hearing was frequently punctuated by the interjections of an increasingly frustrated Judge Rosenberg asking the witnesses to “please speak up” and “pull up close to the mic,” Hall received the lion’s share of the ire, with the judge eventually having to ask him to remove his mask to make his low, monotone voice easier to hear.

Hall described the process of making butane honey oil, and how making it can be dangerous and have “very explosive repercussions” if not done in a very well-ventilated environment since butane is heavier than air and will sink to the ground, where it can often find an ignition source.

Hall then explained that once a fire is controlled, he begins his investigations by moving from the least burned to most burned areas of a structure to interpret the burn patterns.

“Were you able to analyze any burn patterns in this structure?” DDA Schaub asked. “What did those burn patterns tell you?”

“That the fire originated in the inside of the house, in the bedroom, the first bedroom on the west side of the house, off of the living room, heading in the south direction down the hallway,” Hall said, adding, “The severity of damage, the depth of the char on the framing members, and the absence of some of the framing members that received so much fire and damage that they were completely, completely gone.”

Hall then clarified that he ruled out other potential sources of ignition and didn’t determine any other possible areas of origin for the fire. The room that Hall determined to be the area of origin contained marijuana, pieces of glass cylinder for extraction, and butane cans. There were also empty butane canisters in the trash bin outside.

“Did you have the opportunity to speak with any witnesses at the fire?” DDA Schaub asked, to which Hall answered in the affirmative.

This was the turning point of the hearing that ushered in the deluge of legalese.

Hall explained that the property owner Bochantin was renting a room from lived off-site but arrived during the fire, and that he also spoke with “MR” and “DR,” who lived on-site.

“MR stated that she was cleaning the kitchen after the birthday party, and this was at approx. 2:30 a.m.,” Hall said. “She heard a boom, and then saw Mike, aka Big Mike, come out of his room ‘burnt and bloody.’ She then grabbed her kids, three of them, off of the couch, and exited out of the house.”

Spotting an opening as Hall testified as to hearsay, PD Muller took his chance to try to have some of the testimony stricken.

“Objection your Honor,” Muller said. “I don’t know if this witness is Prop. 115 qualified.”

Proposition 115, or the Crime Victims Justice Reform Act, amended the criminal procedure part of the state Penal Code section 872 to state that “law enforcement officers” testifying as to hearsay at preliminary hearings “shall have five years of law enforcement experience or have completed a training course certified by the Commission on Peace Officer Standards and Training that includes training in the investigation and reporting of cases and testifying at preliminary hearings.”

And that the “primary responsibility” of a “law enforcement officer” is “the enforcement of any law, the detection and apprehension of persons who have violated any law, or the investigation and preparation for prosecution of cases involving violation of laws.”

Judge Rosenberg thought it was “a little strange” that Hall hadn’t had Prop. 115 training, and Muller thought this should disqualify parts of Hall’s testimony, but Schaub fought back.

“He doesn’t need [Prop. 115 training] because he has five years of law enforcement experience,” Schaub said. “That’s why they have the ‘either/or.’”

“So he’s defined as ‘law enforcement’?” a confused Judge Rosenberg asked.

“When acting under the fire investigator role, yes,” said Schaub, who then referred Judge Rosenberg and Muller toMartin v. Superior Court (1990), a case that addresses the legal issue of whether the definition of “law enforcement officer” can include “peace officers” as defined under section 830.37 subdivisions (a) and (b), which includes members of “an arson-investigating unit” and members of a fire department “if the primary duty of these peace officers, when acting in that capacity, is the enforcement of laws relating to fire prevention or fire suppression.”

Martin holds that “a ‘peace officer’ under section 830.37, subdivisions (a) and (b) falls within the definition of a “law enforcement officer” insection 872, subdivision (b),” meaning that a fire investigator would indeed be a “law enforcement officer” if investigating was their “primary duty.”

Following a 15-minute recess in which Judge Rosenberg and Muller reviewed the case law, Muller, shrewdly eschewing Hall’s title of “investigator,” said: “I think the People need to lay a further foundation in regards to uh, uh Fireman Hall to testify as to hearsay statements.”

What followed was a grueling scrutiny of exactly how Hall spends all of his time on the job, from cleaning to cooking to EMS calls, whether more of his time goes to “fire suppression” as opposed to “fire investigation,” and if so, whether that would make one job function “secondary” to the other.

Eventually, Judge Rosenberg felt that the same questions had been asked over and over again in enough different ways that he could make a ruling on Muller’s objection, summarizing the most important facts learned during the interrogation about Hall’s job function in the process.

“I’m going to overrule the objection. This case law is new to the court, I’ve never dealt with this in preliminary hearing. But the case does make clear that a person who has a primary responsibility in fire investigation can testify as to hearsay in a preliminary hearing. Whether I agree with that or not, that is the law by the Court of Appeal, and I must follow it. Based on the evidence presented here, I do believe this witness qualifies,” the judge said.

He added, “I do believe what the Court of Appeals was excluding was a person who is only incidentally or peripherally involved in investigations. Clearly, Mr. Hall is involved actively in investigations, and I would conclude that it is in fact a primary part of his responsibilities. He is designated as a fire investigator, one of only three people so designated in his 60-member department. He has done fire investigations in no less than 70 cases, and he has testified at least once before about his fire investigations.”

Finally, he noted: “So, I do not interpret the word ‘primary’ as to be exclusive, but it is in the Court’s opinion, a primary job that he has, and I will allow it. Objection is overruled, but you’ve certainly made your record, it’s a very interesting legal point. So, he may testify as to hearsay statements.”

But finally, nearly 40 minutes after the initial objection, Schaub was permitted to continue questioning Hall about the witnesses MR and DR.

Hall testified that the latter was in the bedroom across the hall from Bochantin’s room when he felt the explosion, which may have knocked him out temporarily, before climbing out of his bedroom window and walking into the street.

At the end of DDA Schaub’s direct examination, Hall clarified that he thinks the fire started because of the manufacturing of butane honey oil. Consequently, during cross-examination, redirect, and recross, both attorneys scrutinized the crucial points of whether the butane would be considered an ignition source or a fuel.

Hall said that the butane is a fuel and would not combust on its own; rather, that it would require an ignition source such as appliance and extension cord wiring in the room, assuming that the circuits were energized or the wiring damaged. But due to that caveat, Muller hypothesized that “inadvertently leaving a can of butane open” could produce the same explosive results, which Hall confirmed.

Upon Hall’s being excused by the court, Schaub and Muller sparred for a little longer regarding the prosecution’s admitted failure “to connect Mr. Bochantin with the origin room.”

While Muller concluded that without this connection, there “is insufficient [evidence] to believe that Mr. B was involved in this offense.” Schaub contended that connecting Bochantin to the origin room and confirming that it was the one he was renting was not necessary given the evidence that puts him at a closer proximity to the fire than other people in the house.

Judge Rosenberg concluded by saying that there was indeed enough evidence to hold Bochantin to answer to the charges and “to believe that a crime was committed and that the defendant is the one who committed the crime.

“It’s true that the People didn’t connect him to the room of origin, but evidence, circumstantial and otherwise, points to Mr. Bochantin as the perpetrator,” the judge said.

Bochantin’s arraignment is set for Aug. 4 at 9 a.m. in Dept. 14. Bochantin also has trailing charges with a time waiver from February involving possession and transport/sale of a controlled substance and possession of paraphernalia used to inject or smoke.