Bunch v. State

CRONE, Judge,

dissenting.

“To prevail on appeal from the denial of post-conviction relief, a petitioner must show that the evidence as a whole leads unerringly and unmistakably to a conclusion opposite that reached by the post-conviction court.” Kubsch, 934 N.E.2d at 1144. I believe that Bunch has failed to meet this burden as to any of her claims, and therefore I respectfully dissent.

1. Newly Discovered Evidence: Victim Toxicology

Newly discovered evidence mandates a new trial only when the post-conviction petitioner demonstrates each of the following nine requirements:

(1) the evidence has been discovered since the trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due diligence was used to discover it in time for trial; (7) the evidence is worthy of credit; (8) it can be produced upon a retrial of the case; and (9) it will probably produce a different result at retrial.

Taylor, 840 N.E.2d at 329-30 (quoting Carter, 738 N.E.2d at 671). The burden of establishing all nine prerequisites for a new trial rests with the petitioner. Webster, 699 N.E.2d at 269.

I have no quarrel with the majority’s determination that “the fire victim toxicology analysis offered by [Jamie] McAllister has been discovered since [Bunch’s] trial” and that, “[e]ven with due diligence, there would have been no way for Bunch to have discovered this analysis prior to her trial.” Op. at 290-91, 292-93. That said, I respectfully disagree with the majority’s determination that the fire victim toxicology evidence is material and relevant and that it will probably produce a different result at trial, all of which hinges on its determi *305 nation that the evidence is worthy of credit.

“Whether a witness’s testimony at a post-conviction hearing is worthy of credit is a factual determination to be made by the trial judge who has the opportunity to see and hear the witness testify.” Whedon, 900 N.E.2d at 504. “It is not within an appellate court’s province to replace a trial judge’s assessment of credibility with its own.” Id. One could argue that the judge’s credibility assessment is entitled to even greater deference in this case, given that he also presided at Bunch’s trial and thus was able to evaluate the credibility of those witnesses (and Bunch’s demeanor) as well. See Fox v. State, 568 N.E.2d 1006, 1007 (Ind.1991) (in determining whether evidence would probably produce a different result at retrial, “the judge may properly consider the weight that a reasonable trier of fact would give it and, while so doing, may also evaluate its probable impact on a new trial in light of all the facts and circumstances shown at the original trial of the case ”) (emphasis added), opinion on reh’g.

The majority says,

[T]he post-conviction court did not find McAllister’s testimony was not worthy of credit because it doubted her credibility or veracity based upon a firsthand evaluation of her demeanor; the post-conviction court found her testimony not worthy of credit because it was in conflict with trial evidence, without considering that new science — rather than new or different facts — formed the basis for her opinion. In other words, the post-conviction court did not find McAl-lister unworthy of credit on the basis of her demeanor; it found her expert opinion unworthy of credit on the basis of its foundation. Under these circumstances, we do not think it necessary or appropriate to impute a personal credibility determination to which we must defer to the post-conviction court. To do so would virtually eviscerate appellate review of post-conviction denials because we would have to speculate in every instance that the post-conviction court could have concluded the witness was not credible based on his or her demean- or.

Thus, although we would defer to the post-conviction court’s assessment of fact witnesses — for instance, a trial witness now recanting trial testimony or a new witness offering never-before-heard exculpatory testimony — we will not defer in this case to the post-conviction court’s assessment of an expert’s scientific evidence. We have the ability to assess McAllister’s expert testimony ourselves because her credentials and the basis for her opinion are part of the record. The post-conviction court found McAllister’s testimony was “not reliable” because she did not establish the scientific principles for her conclusion and because McAllister’s conclusions contradicted undisputed evidence and eyewitness testimony from the trial. In making such a determination, the post-conviction court did not rely on her demeanor, but rather on the stated bases for her opinion and review of the trial record. We have the same information before us, and therefore are able to independently assess whether McAllister’s testimony is worthy of credit without invading the province of the post-conviction court.

Op. at 293.

The majority’s sentiments regarding demeanor are well taken, but they are simply beside the point here. To the extent the majority contends that the post-conviction court failed to consider that “new science” formed the basis for McAllister’s opinion, I disagree. Although the post-conviction *306 court was indeed skeptical that the principles underlying McAllister’s opinions were “generally accepted in the relevant scientific community,” perhaps because of her vague reference to “numerous studies,” its primary concern was that those opinions were based on factual premises that conflicted with the evidence presented at trial. I agree with the majority that we are in as good a position as the post-conviction court to assess the validity of the foundation for McAllister’s opinions because we have the same information before us. That said, I do not believe that we are in as good a position as the post-conviction court — especially in this case, where the same judge presided at trial — to make the substantive determination of whether a witness’s opinions are sufficiently credible to merit a new trial. The two analyses are not the same. 19

In this case, the post-conviction court specifically found that McAllister’s scientific opinions were not worthy of credit based on the following considerations: (1) trial evidence (including statements from Bunch herself) that the fire started on the floor, not in the ceiling, as McAllister opined; 20 (2) Bunch’s statements that “there was not much smoke when she first observed the fire — clearly contradicting what would have had to have happened if this was a ceiling compartment fire as McAllister concludes,” Appellant’s App. at 25; (3) Rob Parkinson’s testimony that he saw fire only on the living room floor, not in the ceiling; (4) Brian Frank’s testimony that he found no evidence that the fire started in the ceiling; 21 (5) trial evidence that the fire was ventilated “very early ... by breaking the windows to the south bedroom where the child was found dead and by an open entry door to the mobile home,” id. at 21; and (6) McAllister’s failure to present “evidence to support her estimate of the temperature of the fire in general or at any specific time,” id. 22 All *307 of the foregoing findings are supported by evidence in the record, and all of them support the post-conviction court’s conclusion that McAllister’s scientific opinions are not worthy of credit and thus are neither material nor relevant and would probably not produce a different result on retrial. In concluding otherwise, the majority has improperly reweighed evidence and reassessed witness credibility.

The majority has also minimized Bunch’s self-incriminating words and deeds, which the post-conviction court described as follows:

86. [Bunch’s] statements and actions at the time of the fire remain undisputed evidence. Specifically:

a. [Bunch] gave multiple inconsistent, sometimes entirely contradictory, statements about the early moments of the fire and where the fire was located.

b. The undisputed trial evidence also showed that the child never slept alone and never got up at night. [Bunch herself] said the child went to bed with her on the couch on the night before the early morning fire. This creates an inference that the child was intentionally moved to a place of danger when the fire began. At a minimum, it shows that her child’s presence in the south bedroom at the time of the fire was inconsistent and highly unusual.

c. [Bunch] told two different persons at two different times that her son was locked behind a door when the undisputed evidence conclusively shows that no such door even existed, and:

i. One of those ... statements was made several days after the fire saying the child was behind a locked door;

ii. She contradicted her own two statements by telling investigators, several times, that she was inside the south bedroom during the fire— completely contradicting the possibility that the bedroom door was locked;

iii. She contradicted these two statements when she told the investigators, several times, that she could see her child in the bedroom while she was in the living room at the beginning of the fire;

iv. Her contradictions on the matter are significant, possibly persuasive, because the jury asked again to hear the testimony of Connie Land and Rob Parkinson during jury deliberations;

d. The evidence is undisputed that an item of furniture was at or near the bedroom door as an obstruction or possible obstruction to the child’s escape from the south bedroom.

e. [Bunch’s] explanations are not consistent with any effort to rescue her own child.[ 23 ]

*308 87. The conflicting and sometimes contradictory statements of [Bunch] presented at trial are not disputed and continue to create a significant inference of guilt. Her statements and actions as described and presented at trial create an inference that [Bunch] intentionally started a fire in her mobile home that killed her child.

Id. at 25-26. Tellingly, the majority does not (and indeed cannot) contradict the post-conviction court’s findings and conclusions on this point.

Additionally, the majority asserts that “McAllister opined that Bunch’s injuries— first degree burns on her face and forearms, a second degree burn on the tip of her nose, and some singeing of the hair around her face — were not consistent with intentionally setting a fire with a liquid accelerant.” Op. at 287. In fact, McAllis-ter testified as follows:

In this particular case when you’re dealing with kerosene it’s, it’s not as volatile as, as let’s say gasoline. A lot of times with gasoline we see individually when they ignite it they get the whoosh because of the light ends vapors that are being emanated from it. Kerosene does not have the same vapor emanation. In fact there have been studies done where it’s very difficult to ignite to begin with and when it does burn the flames tend to be low and stabilized near the fuel source because it doesn’t give off the same amount of vapor as say gasoline.

PCR Tr. at 313.

Although the State’s primary theory at trial was that Bunch used kerosene as an accelerant, the jury heard evidence that investigators found an empty can of gasoline just outside the door of Bunch’s trailer and later recovered from inside the trailer “the remains of a melted gas nozzle that went on that can.” Trial Tr. at 744. 24 Curiously, in her statements to investigators, Bunch mentioned gasoline at least twice. See id. at 706 (“I tried to smother [the fire]. I just threw [a blanket] right over it, and the flames just went right through it. And I tried taking a pillow and beating it; and it was like, I don’t know, gasoline or something; because it just went shooooooo, right all over the doorway by the time I got back.”); id. at 713-14 (“I ran over here; grabbed the blanket; and brought it back and laid it across that flame. And I went and got the pillow and I started hitting it with the pillow. And then it was just, I don’t know — the bed, I mean, the dresser, everything just went fooooooooo. And it was just, I just thought gas was in there all over the place.”). During his rebuttal closing argument, the prosecutor conceded that “[w]e don’t know that gasoline wasn’t used” to start the fire, id. at 1426, and Bunch’s expert witness, John DeHaan, acknowledged at the post-conviction hearing that gasoline “is considerably more volatile than kerosene is” and thus a fire investigator could “lose enough of the ... most volatile components ... such that [the investigator] couldn’t identify it if it was actually present in significant quantities.” PCR Tr. at 166. Expert witness John Malooly made a similar acknowledgement. See id. at 451 (“Q Then after the flashover any kerosene or any petroleum distillate *309 that would have been on top of that linoleum would have evaporated, correct? A If it was on the free surface of the linoleum yes, but we wouldn’t generally take a sample there.”). 25 All of this goes to say that Bunch has failed to convince me that she is entitled to a new trial based on the victim toxicology evidence.

2. Brady Violation

“To prevail on a Brady claim, a defendant must establish: (1) that the prosecution suppressed evidence; (2) that the evidence was favorable to the defense; and (3) that the evidence was material to an issue at trial.” Minnick, 698 N.E.2d at 755. “[T]he State will not be found to have suppressed material information if that information was available to a defendant through the exercise of reasonable diligence.” Conner, 711 N.E.2d at 1246. “Evidence is ‘material’ only if there is a ‘reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” Minnick, 698 N.E.2d at 755 (quoting Bagley, 473 U.S. at 685, 105 S.Ct. 3375 ). Bunch’s Brady claim is based largely on insinuation and innuendo, and, unlike the majority, I believe that it fails in all respects.

First, Bunch knew that the ATF had performed testing on the flooring samples taken from her trailer, and she received the ATF’s “final” report from the State before trial. As such, Bunch would have known that the ATF possessed raw test data (and perhaps other information related to the testing), but she failed to request it. “Where, as here, alleged Brady material was available to [the defendant] through the exercise of reasonable diligence, [she] cannot obtain a new trial by insisting that the government should have conducted [her] investigation for [her].” U.S. v. Morris, 80 F.3d 1151, 1170 (7th Cir.1996), cert. denied.

More importantly, the raw test data was not suppressed because Kinard read the gas chromatograph results to the jury at trial. Kinard’s interpretation of the results provided fodder for Bunch’s cross-examination, specifically regarding samples C6 and C8, which are the focus of Bunch’s Brady allegations. 26 The State points out that the ATF’s “draft” report “does not ‘reveal’ hidden proof that samples C6 and C8 did not contain HPD; it proves what [Kinard] testified to at Bunch’s trial, namely, that he considered samples testing at or above the minimum limit for kerosene in ASTM 1387[ 27 ] to *310 contain HPD.” Appellee’s Br. at 25. In other words, the evidence at issue is not as favorable as Bunch claims.

Nor is it material. The gas chromato-graph results were disclosed at trial, and the jury considered that evidence along with Bunch’s vigorous cross-examination of Kinard regarding those results and ultimately found her guilty beyond a reasonable doubt. In my view, there is no reasonable probability that disclosure of the ATF’s “draft” report would have affected the outcome of the trial. Consequently, I find no merit in Bunch’s Brady claim.

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Because the majority has reversed based on the two foregoing issues and does not address the two remaining issues raised in Bunch’s petition for post-conviction relief, I briefly address those issues below to explain my decision to affirm the post-conviction court’s ruling in all respects.

3. Newly Discovered Evidence: Fire Investigation Techniques

As to fire investigation techniques, Bunch presented the testimony of John DeHaan, who has approximately forty years of experience in fire and explosion investigations. DeHaan testified that at the time of Bunch’s trial, although the fire investigation community was aware of the process called “flashover,” 28 its effects were not well known, and that many of the fire artifacts previously believed to indicate an incendiary fire (such as burn patterns, floor charring, holes in the floor, and V-patterns) are now recognized as products of flashover. DeHaan testified that he did not see any evidence of an intentional cause behind this fire. PCR Tr. at 111. He testified that the origin of this fire should be classified as undetermined, id. at 184, although he believed it most likely started somewhere in the wall structure between the south bedroom and living room. Id. at 132.

Bunch also presented the testimony of John Malooly, a fire investigator of over thirty years, who was a certified fire investigator and certified explosives specialist with ATF and who participated in, for example, the investigation of the bombing of the Murrah Building in Oklahoma City. Based on his review of the evidence at Bunch’s trial, Malooly opined that “there is not a basis for the conclusion that this was an incendiary or an arson fire” and that what the State pointed to as evidence of an accelerant was “evidence of a post-flash-over burning.” Id. at 381. Malooly agreed with DeHaan that the effects of flashover were not widely known or understood by fire investigators in the mid-1990s. He also testified that the experts in Bunch’s trial did not accurately describe flashover, either the scientific basis for flashover or whether flashover occurred in this fire. He further rebutted the State’s trial evidence regarding burn patterns, the melting of an aluminum carpet tack strip, holes burned in the floor, and V-patterns as proving the use of a liquid accelerant.

*311 Bunch contends that this evidence meets all nine criteria of newly-discovered evidence and entitles her to a new trial. The post-conviction court concluded that this evidence has not been discovered since trial, was cumulative, and was merely impeaching of the State’s witnesses. I agree with the post-conviction court’s assessment as to all three criteria, but because the failure to establish even one will defeat a newly-discovered evidence claim, I limit my analysis to impeachment.

Bunch contends that the evidence is not merely impeaching because it “obliterates the testimony upon which [her] conviction was obtained,” see Wilson, 677 N.E.2d at 588, by undercutting each of the bases on which the State’s fire investigation witnesses premised their opinions that this was an incendiary fire. But Hulse’s trial testimony undercut the bases of the State’s investigation as well. State’s witness Frank testified that V-patterns and other burn patterns at the scene indicated intentionally set fires; Hulse testified that V-patterns are not persuasive of an incendiary fire. Frank testified that there were two separate fires caused by liquid acceler-ant, and Hulse testified that there was no liquid accelerant present and that there was but one fire originating in the south bedroom. DeHaan’s and Malooly’s testimony may impeach the State’s witnesses, but Bunch’s trial expert’s testimony did so as well. As such, I cannot conclude that the post-conviction court clearly erred in determining that the post-conviction evidence was merely impeaching and in denying Bunch post-conviction relief on this claim.

4. Ineffective Assistance of Trial Counsel

Finally, Bunch raises numerous claims of ineffective assistance of trial counsel, including that counsel failed to call or consult with various experts, failed to present allegedly exculpatory evidence, and either elicited or failed to object to allegedly damaging evidence at trial. Our standard of review is well settled:

A defendant claiming a violation of the right to effective assistance of counsel must establish the two components set forth in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). First, the defendant must show that counsel’s performance was deficient. This requires a showing that counsel’s representation fell below an objective standard of reasonableness, and that the errors were so serious that they resulted in a denial of the right to counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. To establish prejudice, a defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Harley v. State, 952 N.E.2d 301, 303 (Ind.Ct.App.2011) (citations omitted).

Regarding deficient performance, we have said that

[c]ounsel is afforded considerable discretion in choosing strategy and tactics and we will accord that decision deference. A strong presumption arises that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Isolated mistakes, poor strategy, inexperience, and instances of bad judgment do not necessarily render representation ineffective.

Randolph v. State, 802 N.E.2d 1008, 1013 (Ind.Ct.App.2004) (citations omitted), trans. denied. “The judicial scrutiny of *312 counsel’s performance is highly deferential and should not be exercised through the distortions of hindsight.” Talley v. State, 736 N.E.2d 766, 769 (Ind.Ct.App.2000).

Here, Bunch’s experienced trial counsel called experts, aggressively cross-examined witnesses, and made numerous objections. The evidence of Bunch’s guilt, albeit circumstantial, was strong, especially her own incriminating words and actions both during and after the fire. None of the claims of deficient performance alleged by Bunch, even if true, would rise to the level sufficient to establish a reasonable probability that, but for those alleged errors, the result of her trial would have been different. Consequently, I would affirm the post-conviction court.

. The first type of analysis would be useful in determining if a sufficient foundation existed for the admission of such expert testimony, but not as to whether the testimony itself is sufficient to merit a new trial.

. The statement of facts in Bunch’s appellate brief says, "When Bunch first saw the fire, she was in the living room and Tony was a few yards away in the south bedroom. Ceiling tiles had fallen to the floor of the living room and south bedroom." Appellant's Br. at 2 (citing Trial Tr. at 669, 686, 693, 694, and 1147-48). Contrary to what her counsel would have us believe, Bunch — the only surviving witness of the initial stages of the fire— never stated that she saw ceiling tiles on the floor. In fact, she specifically stated that the floor itself was on fire. See Trial Tr. at 716 ("It was on the linoleum.... That’s why I couldn’t figure out why it was burning. I didn't think linoleum burned [.] ”); id. at 719 ("Q. Well, what was the fire in? What was burning? A. The floor. Q. The floor itself? Is there a register there? A. Linoleum.”) (emphasis added). The majority cites firefighter Clark’s testimony about ceiling tiles on the floor, Op. at 294 n. 9, but Clark did not enter the trailer until after Bunch and Claxton broke out the south bedroom windows and the fire was well underway.

. The majority asserts that Frank's testimony "does not indicate he made any serious investigation into the ceiling as a possible source of the fire.” Op. at 31. The post-conviction judge heard Frank’s testimony at trial and reviewed it on post-conviction and was free to find his testimony more credible than that of McAllister, who — unlike Frank — did not examine the fire scene firsthand.

. The majority says that “[tjemperature was not an integral part of McAllister’s analysis. Her opinion was based upon what ventilation conditions would cause given COHb levels over time.” Op. at 295 n. 11. On the contrary, temperature was an integral part of McAllister’s analysis, in that she opined that the lack of thermal damage to Tony’s respiratory system and his elevated COHb level indicated that he died from carbon monoxide exposure from an under-ventilated fire, rather than from thermal injuries or from carbon monoxide exposure from a well-ventilated *307 fire. See PCR Tr. at 296 (“Q And therefore this [graph depicting the correlation between fire temperature and carbon monoxide level] tells us that an individual would die of thermal exposure prior to ever reaching a significant COHb level in a, in a fire under circumstances then like this? A If, right, if they’re in that room. This is showing us that ... you wouldn't be able [to] get to high lethal CO levels or even incapacitating levels because the temperature would just be too severe. It would kill you before you would ever get to those CO levels.”).

. The post-conviction court noted that in her third interview with investigators, which occurred four days after the fire, Bunch "said she could not rescue her child because her night gown was on fire. That night gown was introduced as evidence and showed no burning or damage by flames.” Appellant’s App. at 6 (citations to trial transcript omitted).

. The majority asserts that Bunch "had not recently purchased an accelerant,” Op. at 297, which in and of itself proves or disproves nothing. Although it is true that investigators were unable to establish that Bunch had recently purchased either kerosene or gasoline, Bunch told police that the gas can found outside her trailer had "been emptied the day or the night before” the fire, Trial Tr. at 745, which establishes that she had access to gasoline shortly before the fire. The jury was entitled to disbelieve Bunch's self-serving statement that the gas can was empty on the day of the fire.

. The majority claims that "[t]he dissent's discussion regarding the use of gasoline as a possible accelerant diverts our attention from the original inquiry.” Op. at 297 n. 12. Nothing could be further from the truth. The "original inquiry” is whether Bunch has established that McAllister’s testimony will probably produce a different result at retrial, and the gasoline evidence is just one of several factors that lead me to conclude that she has not.

. In her reply brief, Bunch says,

Once the chromatograph was obtained by Bunch through subpoena, the State did not call a witness to examine the chromato-graph for sample 8 and testify that it showed a positive result for [a heavy petroleum distillate]. The State did not call a witness to state even that reasonable minds could differ about whether the chromato-graph showed a positive result for sample 8.

Appellant’s Reply Br. at 12. Contrary to Bunch’s insinuation, the State was under no obligation to do so. Rather, it was Bunch's obligation to establish that the State's alleged suppression of the ATF’s "draft” report violated her due process rights. I believe that she has failed to do so.

."This publication establishes the standards for carbon numbers needed for identification of flammable or combustible fluids” and was introduced into evidence at trial as Defendant's Exhibit 1. Appellant’s App. at 31 (finding 102).

. In Ferranti v. United States, 2010 WL 307445 (E.D.N.Y.2010), the court noted an expert explanation that during flashover,

a fire can generate a layer of hot smoke that exceeds 550 [degrees] C, which will cause every combustible surface in the room to ignite. In 1995, investigators were aware of the flashover phenomenon, but believed that it caused uniform burning. Consequently, investigators did not believe that irregularly shaped burn patterns could be generated by flashover. However, in 1997, the U.S. Fire Administration released a report entitled "USFA Fire Burn Pattern Test,” which revealed that flashover can indeed cause irregular burn patterns with or without the presence of a liquid acceler-ant.

Id. at *7.