Judge narrows scope of Anthony Baye testimony
04/26/13 Springfield- - Republican Photo by Mark M.Murray- Anthony P.Baye is led into Hampden Superior Court for a status hearing Friday. His case will start in Hampshire Superior Court in May. Purchase photo reprints »
04/26/13 Springfield- - Republican Photo by Mark M.Murray- Anthony P. Baye sits and listens in Hampden Superior Court, during his status hearing Friday. His case will start in Hampshire Superior Court in May. Purchase photo reprints »
SPRINGFIELD — The jury in the Anthony Baye arson trial will not be told there were no fires in Northampton’s Ward 3 neighborhood after his arrest in January 2010.
Hampden Superior Court Judge Constance Sweeney ruled Friday on that issue and other matters related to Baye’s upcoming trial on multiple counts including arson and murder.
Among them were allegations of Baye’s cocaine use, a statement he made to his father the night of his arrest and potential testimony of a witness who alleges he saw Baye near the scene of one of the fires and recognized him in a news photo after his arrest.
Baye, 27, of 85 Hawley St., is charged with setting about 20 fires, mostly in Northampton’s Ward 3 neighborhood, including one that killed Paul Yeskie Sr., 81, and Paul Yeskie Jr., 39, in their Fair Street home Dec. 27, 2009.
Jury selection is scheduled to begin May 6 with a pool drawn from Hampden County. The case will be tried in Hampshire Superior Court in Northampton. Sweeney said she hopes to have a jury in place and opening arguments ready to begin by May 8.
Sweeney deferred ruling on a motion by Baye’s defense team, Thomas Lesser and David Hoose, to exclude from the trial state Trooper Michael Mazza, a prosecution witness who would testify that one person is responsible for all of the fires.
Sweeney said she will rule after a hearing and interview with the defense’s own expert, who disputes it can be determined that the same person set all of the fires.
Lack of fires since arrest
Hoose argued Friday that allowing evidence of a lack of fires in the Ward 3 neighborhood since Baye’s arrest in January 2010 would not only be unfair to his client, but wouldn’t be accurate. He noted that there were at least two recent fires in that neighborhood, including last weekend’s fire at the Shaw’s Motel building on Bridge Street, the cause of which was still undetermined Friday, according to the state fire marshal’s office.
Hoose said there could be many reasons why a pattern of crimes stops after a suspect is arrested — including voluntarily stopping once an incorrect arrest is made, the perpetrator moving from the area or dying before surfacing as a suspect, overcoming their compulsion to commit crimes or seeking treatment.
Hoose argued that the only way to make a jury aware there have been significantly fewer fires in that area since January 2010 is to make the jury aware that Baye has been in custody since then, which would also be unfair.
“There’s a great deal of prejudice that flows from that information,” Hoose said.
Special prosecutor Brett Vottero countered that the information on its own wouldn’t be enough to convict, but that it should be considered by a properly instructed jury.
Sweeney agreed with the defense team and struck down the prosecution’s motion to allow that evidence.
Lawyers spent about and hour and 45 minutes of the 3½-hour hearing interviewing Mazza, a state trooper assigned to the fire and explosives investigation section, to determine if he can present an expert opinion that the approximately 25 fires Baye is accused of setting throughout 2009 were all set by the same person.
On the witness stand, Mazza said his office found about 30 fires in Northampton in 2009 that seemed to fit the same pattern.
He said the fires all were set at similar times, were all in the same small geographic area, did not involve any outside materials or liquid accelerants like gasoline and were all set at similar targets: exteriors of homes and inside vehicles.
Under questioning by Lesser, Mazza acknowledged that many of the trends in the fires his office examined are the most common trends in arson cases. Mazza said most arsons take place late at night or early in the morning, are set at buildings and in vehicles, are started with an open flame and material at the scene.
Lesser argued that based on how common most of those trends are, it can’t be determined that only one person is responsible for all of those fires.
In addition, some of the fires Mazza determined were the act of one person break the pattern by being set outside of the radius of the others.
Lesser argued that a lack of “signatures” at any of the fires, like particular types of materials used to start them, also casts doubt on one person being responsible.
Vottero agreed that the method and locale of the fires wasn’t enough to establish links among the fires, but it could alert investigators that a single person may be responsible, especially when considering such a high number of fires in such a small area.
“I don’t think that’s ever happened in the history of Northampton,” Vottero said.
Sweeney deferred ruling on whether Mazza will be allowed to testify as an expert until a potential expert witness for the defense, who may dispute Mazza’s theory, can be interviewed at a hearing next Thursday.
That witness, former FBI criminal profiler Kevin L. Kelm, said in an affidavit filed by Lesser and Hoose that the conclusion that one “lone individual” was responsible for all of those fires is not supported by the evidence.
The opinion that one person is responsible, “is not an opinion which would be accepted in the arson investigation community,” part of the affidavit reads.
Sweeney also ruled that prosecutors may not introduce evidence of alleged cocaine use by Baye before the night of the fires.
Hoose argued that witness testimony about Baye’s cocaine use was irrelevant because there was no link between use of the drug and an increased propensity for fire setting.
Hoose said the only change in behavior noted by people who claimed to have seen Baye use cocaine was that he became “more talkative.”
Vottero argued that alleged cocaine use, along with marijuana and alcohol use by Baye, should be presented to a jury to help establish state of mind or impairment.
“People do stupid things when they’re under the influence,” he said.
Sweeney said no mention of alleged drug use before the night of the fires can be included as evidence in the trial and evidence of drug use on that night can only be brought up with her approval following a conference to establish its relevance.
Statements to parents
Sweeney will allow prosecutors to reveal to jurors a statement Baye allegedly made to his family the night of his arrest.
Asked by his father if he was at the home on Fair Street that was burned the morning of Dec. 27, 2009, killing the Yeskies, Baye allegedly replied, “I have no recollection of being there.”
When asked by his mother if he was with anyone the night of the fires, Baye allegedly answered he was by himself.
Vottero argued that those statements were given voluntarily by Baye and with full knowledge the room he was in was being recorded.
Hoose argued that recording the meeting with his parents was not a courtesy but an attempt to invite him to respond to allegations after a 10½ hour police interview, portions of which were already ruled inadmissible by the state Supreme Judicial Court.
Sweeney ruled against the defense, noting that the portions of Baye’s police interview that were ruled inadmissible had to do with interrogators’ attempts to elicit a confession from Baye by minimizing the severity of the crimes.
Sweeney said by the time Baye’s parents arrived at the police station, he was already booked and under arrest and was made aware being recorded and the severity of the charges against him, including two counts of murder in connection with the Yeskie’s deaths.
Sweeney said she will allow testimony from a witness who recognized Baye from earlier encounters, but only after seeing photos of him in the media after his arrest.
The judge ruled that the witness would have to be individually interviewed before testifying to determine the scope of his testimony and how much weight the jury should give it.
Hoose argued the witness’ recollection of his encounter with Baye, whom he allegedly saw walking on Crescent Street the morning of Dec. 27, 2009, was tainted by the published photo.
Hoose said the description the witness gave of the man involved clothing Baye was wearing when photographed, not what he had on the morning of the fires.
Vottero argued, clothes notwithstanding, the description of the man the witness saw is consistent with someone who matches Baye’s description, and should be allowed.
Baye has been held without bail since his arrest. Six of the charges he faces carry potential life sentences if he is convicted.
Bob Dunn can be reached at email@example.com.