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Defense witness: Grocer wasnt man in fire video

Expert counters prosecution on key evidence; wife's testimony conflicts with Burlingame owner's account of his whereabouts

A video analyst hired by Burlingame Grocery owner Tom Calkins' defense team said the person captured on video by the store's security system the night it was destroyed by fire does not look like Calkins.

Gregg Stutchman, owner of his own forensic audio and video agency in Napa, Calif., said the Sept. 18, 2001, security tape did not provide enough definitive photo images to determine if the subject is the same size and appearance as Calkins.

'It's impossible to say if they are of the same height,' he said of video taken of Calkins earlier that day and the person caught on camera later that night.

Stutchman's testimony on Thursday countered the testimony of Grant Fredericks, a video expert who testified last week that the person who entered the grocery shortly after 11 p.m. Sept. 18 matched the height, physical size and clothing worn by Calkins that evening. Stutchman, a former police officer, used Fredericks' video analysis for part of his testimony Thursday.

Proving who the person is on the black-and-white security video, which shows a man walking to the back of the store minutes before it went up in flames, is a crucial part of the arson case. Calkins is accused of setting the fire and has been charged with two counts of first-degree arson in Multnomah County Circuit Court.

Prosecutors claim Calkins had a financial motive to burn down his store and collect the insurance money. Calkins' attorneys argue that the four-alarm fire was accidental because the store was old, with electrical problems and malfunctioning equipment.

Also at issue during the more than weeklong trial has been Calkins' whereabouts the night of the fire. Calkins' wife, Jackie, testified Wednesday that she could not find her husband in their home when she was awakened by a call from the store's alarm company.

Calkins initially told police he had talked to the alarm company at home.

Prosecutors had sought to block Stutchman's appearance and more than 50 photo stills captured from the surveillance video. Judge Linda Bergman overruled the motion, allowing the testimony and evidence.

Stutchman, who led off the fifth day of the trial, said the different lighting in the security video makes the subject's head in the video appear 'distorted, oblong and blocky.' The person also appears to have a different hair color when entering and exiting the store and does not walk with the same arm-swinging motion as Calkins does, he said.

At one point, Wayne Mackeson, one of Calkins' attorneys, held up what has become a critical piece of evidence the green fleece jacket with a Jesuit High School emblem worn by Calkins that night and asked Stutchman if it was possible to see the lettering on the video.

'No, it is not,' Stutchman said.

'Is the (reflection of the overhead) light the same size as the Jesuit emblem?' Mackeson asked.

Said Stutchman: 'It doesn't even appear to be in the same location.'

Police and fire investigators had earlier pinpointed the outlines of the Jesuit emblem in the video. Calkins' sons attended Jesuit.

Assistant District Attorney Eric Bergstrom hammered Stutchman regarding his expertise in analyzing video and use of lighting to depict shapes.

Wife's story differs

The prosecution's case concluded Wednesday with Bergstrom questioning Calkins' whereabouts following the fire and documenting the store's financial problems in recent years.

Calkins initially told investigators that he was at home when the store's alarm company called shortly after the fire started. But his wife, Jackie, on Wednesday gave the most vivid recollection of what happened the night of the fire. She testified that she was awakened by a call from the store's alarm company around 11:15 p.m. alerting her to an intruder alarm and discovered her husband was not asleep beside her.

She said she looked in the bathroom and down the hall, asking the alarm company to hold. She then called Calkins' cell phone at around 11:21 p.m. to ask if the alarm company should send police, and Calkins said he'd take care of it himself.

Her testimony countered what Calkins had initially told police, building owner Vince Chimienti and others: that he had talked to the alarm company at home. He later changed his alibi to say he was checking on his neighbor's dog, according to police Detective William Law.

She said she received another call within minutes from Calkins, who said the store was on fire.

'Do you know where he was?' Bergstrom asked.

'No,' she said.

'Was it the next day he told you he was at the neighbor's house?' Bergstrom asked.

'Either that day or the day after,' she said.

It was Jackie Calkins' first appearance at her husband's trial, and she came in tanned from working as a retail buyer at the Hualalai Resort in Hawaii. Although she has worked on the Big Island for the last 14 months, the couple has not separated, said another Calkins' attorney, Pat Birmingham.

Business slows down

Jackie Calkins was asked if the store had experienced declining sales.

'I knew that it (sales) was down,' she said.

The store also had increasing competition from Zupan's, Starbucks, Papaccino's Coffee, Chevron Food Mart and E & R Wines, she said. There were no plans to sell or turn the store over to their two children.

An accountant who examines financially troubled companies also testified Wednesday that the grocery's sales had dramatically dropped as it battled growing grocery, wine and coffee competition.

During a five-year span, Papaccino's Coffee, Zupan's, Starbucks and E & R Wines, operated by the grocery's former wine steward, had opened nearby, denting its sales by almost $1 million since 1997, said Katharyn Thompson, a principal with RGL Accounting in Portland. In 2000, the store reported $2.7 million in gross sales.

The decline in gross sales also had taken a chunk out of Tom Calkins' salary, from a high of $357,000 in 1999 to $186,000 in 2000.

'You start seeing business taper off,' said Thompson, who looked at Burlingame Grocery's tax returns from 1993 to 2000. 'In 2000 it takes a fairly significant dip.'

Thompson testified that if the downward sales trend had continued, the grocery would not have had a net income in four years. In the three months before the fire, sales were down anywhere from 12 to 18 percent.

The sales decline did not necessarily mean the store was not healthy, charged Calkins attorney Mackeson. He pointed out that Calkins had $160,000 in the bank, little debt and account receivables totaling $33,000. He also prepaid his bills, Mackeson said.

Calkins' inventory including a large selection of beer and wine totaled about $600,000 of the company's estimated $978,000 book value in 2001.

Mackeson said Thompson's research did not take into account the value of Calkins' name and business. 'Under your doomsday analysis he would still make $160,000 in 2002,' he said.

Mackeson also revealed that Thompson was hired by Calkins' insurance company, Grocers Insurance Group, which has accused Calkins of setting fire to his store. The company is awaiting outcome of the criminal trial before moving ahead with its lawsuit, which denies Calkins' claim for an estimated $1 million settlement from his insurance policy.

'They have a keen interest in the outcome,' Mackeson said.

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