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STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF CALHOUN
PEOPLE OF THE STATE OF MICHIGAN,
HON. JAMES C. KINGSLEY
Plaintiff,
v.
Docket No. 1996-2562 FC
ANDREW FRED BABICK JR,
Defendant,
Lauryl A. Scott P49860
Gregory J. Townsend P35857
Attorney for Plaintiff
3030 West Grand Blvd. Ste 10-350
Detroit, Ml 48202
(313) 456-0180
David Moran P45353
lmran J. Syed P75414
Attorney for Defendant
701 South State Street
Ann Arbor, Ml 48109-1215
(734) 763-9353
FINDING
This matter is before the court pursuant to the defendant's Motion for Relief
from Judgment pursuant to MCR 6.501 et seq, filed March 31, 2014, seeking to vacate
his conviction and order a new trial. The defendant was convicted of felony murder
on November 14, 1996, the jury having found that the defendant committed an arson
on September 9, 1995, resulting in the death of two small children. At trial, Assistant
Attorney General Mark Blumer represented the people and Ms. Alma Mason-Thurmer
represented the defendant.
Defendant filed his first Motion for Relief from Judgment on May 14, 2001, in
part claiming "An arson expert for the defense was also required to rebut the
prosecution's assertion that this was an arson, and to support the accidental theory
asserted by the defense, without which left no rebuttal evidence to support the
defense." The motion was denied by this court and affirmed on appeal.
MCR 6.502(G)(1) provides "one and only one motion for relief from judgment
may be filed with regard to a conviction." Subsection (2) of the rule allows
subsequent motions to be filed if "based on . . . a claim of new evidence that was not
discoverable before the first such motion." The motion now pending before this court
is based on such an assertion. An evidentiary hearing was held pursuant to
defendant>s request to receive evidence regarding defendant's entitlement to relief
from his conviction. Based on the evidence received during the hearing, this Court
finds the motion now before the court should be allowed pursuant to
MCR6.502(G)(2).
According to 2 Gillespie, Michigan Criminal Law and Procedure, section 21 :36,
"To entitle one to a new trial on the ground of newly discovered evidence, it must be
shown that:
•
The evidence and not merely its materiality, is newly discovered;
•
The evidence is not merely cumulative;
•
The evidence would render a different result probable on a retrial; and
•
The party could not, with reasonable diligence, have produced the
evidence at trial." See also People v Cress, 468 Mich 678 (2003).
During the trial, Mr. Blumer called three expert witnesses regarding the cause and
origin of the fire: Jeff Austin, the canine handler for the Lansing Fire Department,
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Wayne Etue, a sergeant with the Michigan State Police Fire Marshall Division, and Joan
Tuttle, a fire inspector with the Battle Fire Department. All three testified that the fire
was an arson, relying on one or more of the following factors: the perceived use of
accelerants, multiple points of origin, burn patterns and/ or dog sniffing hits. In support
of his opinion, for example, Mr. Austin testified that his dog was "100 percent correct
every time" (Trial transcript, vol. 4 p 81 ); and in response to the question "her nose is
probably a thousand times more sensitive than the Crime Lab, is that correct?", he
responded "That's true." (Trial transcript vol. 4 p 84)
David M. Smith testified at the evidentiary hearing on behalf of the defendant
that he was a certified fire investigator for the National Fire Protection Association
(NFPA) Technical Committee on Fire Investigations from 1992 to the present. That
committee has authored every edition of "NFPA 921: A Guide to Fire and Explosion
Investigations" since 1992. In his affidavit admitted as defendant's exhibit A, Mr. Smith
wrote that NFPA 921 "now establishes the professional baseline standards for fire
investigations." He further wrote:
With the introduction of NFPA in 1992, the fire investigation profession began a
movement toward the implementation of scientific principles in fire
investigation. However, it would be many years - in some cases, up to a
decade or more - before knowledge of NFPA 921 would percolate down to the
relevant investigative communities in various parts of the country. See e.g.
Lentini at 15 (noting that NFPA did not become 'generally accepted' by the
fire investigation community until the year 2000).
Ms. Mason-Thurmer testified she was not aware of NFPA 921 at the time of trial,
and that it would have been "a miracle" and changed her whole focus during the trial
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had she known of it. She conferred with at least four potential cause and origin witnesses
for the defense, all of whom concluded it was an arson, but without having the benefit
of scientific investigation advances and NFPA 921. She stated that the fire science in use
by experts at the time caused everyone to believe the fire was an arson as opposed to
being accidentally causea. Mr. Pat O'Connell was the appellate attorney for the
defendant. He testified that he consulted with a possible cause and origin expert
witness, but that person also concluded there was "no dispute it was arson" based on the
then current standards of fire investigation. Mr. O'Connell said he could not properly
argue on appeal whether it was an arson or not based on his own potential witness, so
he had to focus on other issues. As a result, the Court of Appeals affirmed the
defendant's conviction.
Ms. Mason-Thurmer also testified that she was considered an arson specialist while
employed as an assistant prosecutor for Calhoun County. She attended a seminar in
1994 on arson prosecutions but no mention was made by any presenter of the current
scientific advancements in arson investigations or NFPA 921 . Because of her lack of
success in finding cause and origin witnesses helpful to the defense, she had to focus on
who committed the arson, rather than on whether it was an intentionally caused fire.
Mr. Babick testified he did not become aware of such scientific developments and NFPA
921 until sometime between 2005 and 2007. Based on all of this evidence, it is the
finding of the court that the evidence described is newly discovered and satisfies the
first requirement for consideration.
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Turning to the second requirement, there is no issue whether the newly
discovered evidence would be cumulative. No evidence on cause and origin was
presented by the defense. The prosecution expert witnesses were cross-examined as to
the accuracy of their opinions, but nothing was presented to directly contradict such
testimony. It is the finding of the court that the proposed evidence is not cumulative.
It is also the finding of the court that the fourth requirement is established
because reasonable diligence was used by trial and appellate counsel to discover this
evidence. Both Ms. Mason-Thurmer and Mr. O'Connell tried repeatedly to find witnesses
to contradict the prosecution witnesses but were unsuccessful. In his testimony and in
his affidavit, Mr. Smith made clear that the scientific developments and NFPA 921 were
not widely known "by the fire investigation community" until several years after the trial
was held.
In this case, the critical requirement for granting the relief requested is whether
the presentation of such new evidence would render a different result probable on
retrial.
MCLA 600.2955 sets out the
responsibilities of a trial court in
determining whether expert opinion testimony will be admitted into evidence.
In an action for the death of a person or for injury to a person or property, a
scientific opinion rendered by an otherwise qualified expert is not admissible
unless the court determines that the opinion is reliable and will assist the trier of
fact. In making that determination, the Court shall examine the opinion and the
basis for the opinion, which basis includes the facts, technique, methodology, and
reasoning relied on by the expert, and shall consider all of the following factors:
•
Whether the opinion and its basis have been subjected to scientific testing
and replication.
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•
Whether the opinion and its basis have been subjected to peer review
publication.
•
The existence and maintenance of generally accepted standards governing
the application and interpretation of a methodology or technique and
whether the opinion and its basis are consistent with those standards.
•
The known or potential error rate of the opinion and its basis;
•
The degree to which the opinion and its basis are generally accepted within
the relevant expert community. As used in this subdivision, 'relevant
expert community' means individuals who are knowledgeable in the field
of study and are gainfully employed applying that knowledge on the free
market.
•
Whether the basis for the opinion is reliable and whether experts in that
field would rely on the same basis to reach the type of opinion
being proffered.
•
Whether the opinion or methodology is relied upon by experts outside of
the context of litigation. (See also Barr v Farm Bureau, 292 MA 456 (2011)
and Gilbert v Daimler Chrysler Corporation, 470 Mich 749 (2004)).
In conjunction with MCLA 600.2955, MRE 702 requires the court to make what has
been called a "searching inquiry" into these factors to assure expert opinion testimony
presented to a jury is accurate and reliable. That was not done in this case because no
one requested an evidentiary hearing before trial to establish such admissibility. Ms.
Mason-Thurmer acknowledged she did not request a hearing pursuant to Daubert v.
Merrell Dow Pharm. Inc, 509 US 579, 113 S Ct 2786 (1993) because all the opinions and
advice she received during trial preparation was that it was an arson, and not
accidental. As a result, the testimony of Mr. Austin and Mr. Etue was admitted without
objection; the only objection to Ms. Tuttle was that her testimony would be cumulative.
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Mr. Blumer testified in his opinion there was no reasonable probability of a
different outcome if the case were to be tried again. He acknowledged that he was
aware of the NFPA Council, but not necessarily of NFPA 921. He testified that had NFPA
921 been known, he would "not have used evidence that was suspect" such as the dog
sniffing evidence. He believes there is sufficient circumstantial evidence to obtain a
conviction, however, especially in view of the multiple points of origin, the time line and
the defendant's statement to his wife according to the testimony of Holly Mony.
Ms. Mason-Thurman testified that the multiple points of origin could have been
caused by flashovers, that she could have used the time line in the defendant's favor,
and that Ms. Mony recanted her statements at trial. A review of Ms. Mony's testimony
reveals that she was 13 years old and offered the following responses to counsel:
Q. Is there anything that they were saying that you couldn't here? (sic) Was it
clear to you what they were saying?
A. Well, I was tired, but I couldn't hear that much. Well, I woke up, I hear them
arguing, and I went back to sleep.
Q. What was your uncle arguing with ... your aunt about?
A. Well, when I woke up I just . .. I think I heard them arguing about something
about a fire and dropping a cigarette in a couch or something like that.
Q. Isn't it true, Holly, that your uncle said to his wife in a way that you could hear
that he thought he was responsible for - might be responsible for starting
that fire?
A. I'm not sure.
Q. Didn't your uncle say to your aunt in a way that you could hear that he thought
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he might have started that fire by dropping a cigarette in a couch or dropping a
cigarette in the house somewhere and he might be responsible for starting that
fire?
A. They may have said that, but I'm not - - I can't actually remember what they
really said.
Q. Didn't your uncle say that two little kids died in that fire?
A. No, I don't think so. (Trial transcript, volume 5 pages 22 - 24.)
There are other instances where, when questioned by the prosecutor, the witness
denied making a particular statement or could not remember what she overheard or
later reported to the Fire Marshall and others.
Mr. Smith testified the prosecution expert witnesses should not have been allowed
to testify because of their failure to adhere to the protocol in NFPA 921, and, based on
all the evidence, the cause and origin of the fire should be classified as
"undetermined." He testified that Mr. Etue and Ms. Tuttle misread signs of postflashover burning as indicators of accelerants being poured.
He also disputed the
prosecution's theory that the couch could not have been the source of the fire. He
concluded his affidavit by stating "In light of the state of knowledge and standard of care
in the fire investigation profession today, there is simply no credible evidence that the
fire at 264 Grove St. was intentionally set."
In defense exhibit D, admitted into evidence because of difficulty with the audio
portion of his later appearance by computerized face time, he stated "it's very obvious
from the photos" the fire on the porch "flashed over" and damaged the interior of the
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house. When asked if, once flashover occurs, "is it scientifically acceptable to rely on
burn marks, pour patterns, depth of char to determine the origin, path, intensity, or
duration of the fire" he responded "Absolutely not."
In People v. Higginbotham, 21 Mich App 489 (1970), the defendant was convicted
of breaking and entering with intent to commit larceny. A co-defendant filed an affidavit
exonerating the defendant and alleging information was withheld from the trial which
would have absolved the defendant. The trial judge denied a motion for a new trial
based on this newly discovered evidence. The Court of Appeals affirmed, stating the
defendant was seen leaving the building and was never out of the officer's sight. "In
view of such testimony, it cannot be said that a different result would be probable. A
new trial is not required.,,
In People v. Lewis, 26 Mich App 290 (1970), defendant was convicted of znd degree
murder. In his motion for a new trial, the defendant included an affidavit from a witness
alleging the defendant acted in self- defense. The Court of Appeals affirmed the denial
of a new trial on the alleged newly discovered evidence and stated "In light of the eight
witnesses at the first trial, we are unable to say that one new witness telling a
substantially different story renders a different verdict probable."
In the case of People v. Mechura, 205 Mich App 481 (1994) the defendant was
convicted of 1st degree murder. Defendant filed a motion for a new trial based on newly
discovered evidence that alleged a witness had perjured herself on the stand. The trial
judge denied the motion because he did not believe this new testimony would have
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changed the result. The Court of Appeals reversed and granted a new trial. "The new
testimony would have provided corroboration of defendant's theory of self-defense ..
We cannot say that the newly discovered evidence probably would not have resulted in
a different verdict."
In the case of People v. McAllister, 16 Mich App 2317 (1969), defendant was
convicted of damaging a safe and breaking and entering. He moved for a new trial
based on newly discovered evidence which was an affidavit of another that he and an
accomplice committed the crime. The trial judge denied the motion. Relying on the
four factors set out in People v. Keiswetter, 7 Mich App 334 (1967) and set forth
above, the Court of Appeals reversed the trial court's decision and remanded the
case for a new trial, holding the statement in the affidavit "was newly discovered and
is not cumulative. It goes to the heart of McAllister's defense which is that he did not
commit the crime."
In the case of People v. Clark, 363 Mich 643 (1961 ), the defendant killed her
oldest child on June 8, 1957. She was charged with first degree murder. The defense
was insanity. A "sanity commission" was ordered to examine the defendant. The
doctors on the commission examined defendant on July 18, 1957, and filed their
report the same day, finding that the defendant was sane at the time of the crime
and was competent to stand trial. Trial by jury resulted, on Nov ember 1, 1957, in a
verdict of first degree murder.
An amended motion for a new trial was filed on September 25, 1959. Attached
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to the motion were affidavits of a news reporter and the night superintendent of
Detroit Receiving hospital containing their observations of the defendant's condition
and conduct on the night of the murder, concluding "she definitely was not in her
right mind" and "she definitely did not realize what had happened, that she was
mentally unbalanced."
The prosecution opposed granting a new trial arguing the facts in the affidavits
were cumulative and that "it is highly improbable the mere substance of these
affidavits would be sufficient to cause a different verdict on another trial." The
Court reversed the conviction and ordered a new trial, stating "the newly-discovered
evidence would not be cumulative but would constitute the only direct evidence as to
her sanity on the date of her alleged commission of the crime . ... and it is
reasonable to assume it might effect a different result on a retrial of the cause."
There are a number of other cases dealing with the requirements of granting a
new trial for newly discovered evidence, but the analysis in the above cases is
sufficient for the purposes here. The scientific developments and NFPA 921 are
newly discovered evidence in this case; they are not cumulative; diligent efforts were
made to discover evidence contrary to that of the prosecution's experts.
In their proposed finding, the People argue the question of whether flashover
occurred is "of little value to the analysis at hand. Indeed, none of the evidence and
arguments regarding the changes in fire science presented by the defense are
dispositive enough to have rendered the jury's verdict BASELESS." (emphasis
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supplied) That is not the test to be applied. The test is whether the newly
discovered evidence would render a different result probable on a retrial.
This court finds that because of (1) the prosecutor's acknowledgment that he
would have changed his approach and not used certain portions of the evidence that
he did use; (2) the adequate rebuttal of Mr. Smith which could be used by the
defense to the time line and multiple points of origin theories; (3) Ms. Mony's actual
testimony and, most importantly; (4) the body of scientific knowledge and expert
opinion that now exists regarding cause and origin of arson fires, a different result on
retrial is probable. A different result is not guaranteed but, as argued by Mr. Blumer,
anything is possible. As the Supreme Court concluded in the Clark decision, however,
uit is reasonable to assume it might effect a different result on a retrial of the
cause.,, That is the situation in the case at bar.
The motion is granted. The prosecution is given 90 days following the issuance
of this Finding or the conclusion of the final appellate challenge, whichever last
occurs, to determine whether to retry the defendant. Failure to do so will result in
the case being dismissed and the defendant discharged from prison.
Dated:
,.<!t>V.
7 , 2014
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