IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2016 Term
_______________ FILED
June 2, 2016
No. 15-0067 released at 3:00 p.m.
_______________ RORY L. PERRY, II CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
SAMUEL ANSTEY,
Petitioner Below, Petitioner,
v.
DAVID BALLARD,
Warden, Mt. Olive Correctional Complex,
Respondent Below, Respondent.
_____________________________________________________
Appeal from the Circuit Court of Fayette County
Honorable John W. Hatcher, Jr., Chief Judge
Civil Action No. 14-C-134-H
AFFIRMED
_____________________________________________________
Submitted: April 5, 2016
Filed: June 2, 2016
Valena E. Beety, Esq. Patrick Morrisey, Esq.
Wiley W. Newbold, Esq. Attorney General
William L. Burner, Rule 10 Certified Law Student Derek A. Knopp, Esq
Ashley M. Hawkins, Rule 10 Certified Law Student Assistant Attorney General
Devon T. Unger, Rule 10 Certified Law Student Gilbert C. Dickey, Esq.
James Alexander Mead, Rule 10 Certified Law Student Assistant Attorney General
West Virginia Innocence Project Charleston, West Virginia
West Virginia University College of Law Counsel for Respondent
Clinical Law Program
Morgantown, West Virginia
Counsel for Petitioner
JUSTICE LOUGHRY delivered the Opinion of the Court.
CHIEF JUSTICE KETCHUM dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. “In reviewing challenges to the findings and conclusions of the circuit court
in a habeas corpus action, we apply a three-prong standard of review. We review the final
order and the ultimate disposition under an abuse of discretion standard; the underlying
factual findings under a clearly erroneous standard; and questions of law are subject to a de
novo review.” Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006).
2. “‘A new trial will not be granted on the ground of newly-discovered
evidence unless the case comes within the following rules: (1) The evidence must appear to
have been discovered since the trial, and, from the affidavit of the new witness, what such
evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated
in his [or her] affidavit that [the defendant] was diligent in ascertaining and securing [the]
evidence, and that the new evidence is such that due diligence would not have secured it
before the verdict. (3) Such evidence must be new and material, and not merely cumulative;
and cumulative evidence is additional evidence of the same kind to the same point. (4) The
evidence must be such as ought to produce an opposite result at a second trial on the merits.
(5) And the new trial will generally be refused when the sole object of the new evidence is
to discredit or impeach a witness on the opposite side.’ Syl. pt. 1, Halstead v. Horton[,] 38
W.Va. 727, 18 S.E. 953 (1894).” Syllabus, State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534
(1979).
i
3. “‘A court having jurisdiction over habeas corpus proceedings may deny a
petition for a writ of habeas corpus without a hearing and without appointing counsel for the
petitioner if the petition, exhibits, affidavits or other documentary evidence filed therewith
show to such court’s satisfaction that the petitioner is entitled to no relief.’ Syllabus Point
1, Perdue v. Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973).” Syl. Pt. 2, White v. Haines,
215 W.Va. 698, 601 S.E.2d 18 (2004).
ii
LOUGHRY, Justice:
This case is before us upon the appeal of Samuel Anstey (“petitioner”) from
the December 24, 2014, order of the Circuit Court of Fayette County denying his petition for
relief in habeas corpus. The petitioner challenged his 1995 first degree murder conviction,
without a recommendation of mercy, in the death of Marie Donollo (“victim”). In his habeas
petition, the petitioner asserted he was entitled to a new trial because the advancement in fire
science and arson investigation during the last twenty years constituted newly-discovered
evidence which demonstrated the fundamental and unconstitutional unfairness of his trial.
Following its consideration of the parties’1 briefs, the affidavits of the petitioner’s new fire
experts, and the underlying trial record, the circuit court denied the habeas petition without
holding an evidentiary hearing.2 Based on our thorough review of the appendix record,
which includes the current habeas proceeding and a transcript of the petitioner’s murder trial,
as well as the parties’ briefs and the applicable law, we find no basis to reverse the circuit
court’s decision. Accordingly, we affirm.
1
The named respondent in this matter is David Ballard, Warden of the Mount Olive
Correctional Complex, where the petitioner is incarcerated. Inasmuch as the petitioner
challenges his underlying criminal conviction in the instant proceeding, we refer to the
respondent simply as “the State.”
2
The same circuit court judge who presided over the petitioner’s murder trial
considered the instant habeas proceeding.
1
I. Facts
A. The Underlying Trial
On May 11, 1994, a Fayette County grand jury returned indictment No. 94-F
31 charging the petitioner with first degree murder in violation of West Virginia Code § 61
2-1 (1991) and first degree arson in violation of West Virginia Code § 61-3-1 (1991). The
State proceeded to trial solely on the murder charge under a theory of felony-murder. During
the eleven-day trial, which began on August 21, 1995, twenty-nine witnesses were called by
the State, and eleven witnesses testified for the defense. The petitioner did not take the stand.
The evidence revealed that sometime in either 1991 or 1992, the petitioner, a
thirty-six-year-old, out-of-work coal miner, moved into the house trailer occupied by the
victim, his eighty-one-year-old grandmother and adoptive mother.3 The trailer was located
in the Harvey Hill area of Fayette County. According to witnesses at trial, the relationship
between the petitioner and the victim was problematic.
Witnesses for the State testified to hearing arguments between the petitioner
and the victim, who was in declining health and who believed the petitioner was unwilling
to help her. A neighbor, Charles Green, testified to hearing the petitioner and the victim
3
The record reveals that the petitioner’s biological mother died when he was an infant;
his biological father, the victim’s son, was estranged from the family.
2
argue. He also stated that the victim asked if she could live with him and his wife so that
they could take care of her.4 On one occasion, Mr. Green observed that the victim had a
black eye, which the victim attributed to the petitioner.5 At the victim’s request, Mr. Green
installed brackets on the victim’s bedroom door, so that she could put a padlock on it. He
“reckon[ed]” the victim was afraid to stay in the trailer. Another neighbor, Pamela Smith,
also testified to overhearing the victim and the petitioner doing “a lot of screaming, yelling,
cussing.” The victim would occasionally visit Ms. Smith in her home and, during one such
visit, the victim told Ms. Smith that the petitioner “used to hit her, and smack her around and
choke her” and showed her the “bruises and stuff on her arms . . . and said that [the
petitioner] had done it.”
Nancy Kirby, who had known the victim for a number of years, testified that
during the year prior to the victim’s death, the victim was always upset and crying; that she
complained of having no transportation and being unable to get to the store; and, that during
several visits to the victim in her trailer, Ms. Kirby observed there was no food in the
refrigerator. She further testified that approximately one year before the victim’s death, the
4
Other State’s witnesses similarly testified that the victim wanted to move in with
them so they could take care of her.
5
There were no objections to either this particular evidence or to other similar
evidence discussed herein; however, the trial transcript reveals the circuit court upheld
defense counsel’s objections to evidence of other incidents of the petitioner’s physical abuse
of the victim.
3
victim asked her to feel a knot on her head, stating the petitioner had struck her in the head
with the telephone. This witness also testified that nearly every time she spoke with the
victim over a four-year period, the victim told her that the petitioner treated her badly and
was mean to her, and that she was taking him out of her Will.6
Anna Mae Sowder, a longtime friend of the victim, testified that she spoke with
the victim by telephone six or seven times a week. During those conversations, the victim
would talk about her “troubles,” including having no way to get to the store and being alone
and afraid. The victim also stated that unless the petitioner began treating her better, she
would rather throw her money into the Thurmond River than allow him to have it,
complaining that the petitioner “aggravate[d] [her] to death, wanting [her] money.” By way
of example, Ms. Sowder stated that the victim told her that after the petitioner purchased a
trailer, he “aggravat[ed] her, wanting her to pay the trailer off[.]” After he purchased a truck,
the victim told her that “he’s expecting me to pay for the truck.”7
6
The record reveals that, in 1976, the victim executed her Last Will and Testament
(“Will”) naming the petitioner as her sole beneficiary.
7
Insurance agent Edna Treadway, who had written a policy of insurance for the victim
and her late husband, testified concerning the victim’s complaints that neither her son (the
petitioner’s biological father) nor the petitioner would do anything for her; that all they
wanted was her money; and that she was not going to leave either of them anything. Another
longtime friend of the victim, Marlene Maynard, testified that the victim’s primary complaint
regarding the petitioner was that “he was always wanting money from her.”
4
The State’s witnesses also included various bank employees and officers who
testified concerning the victim’s financial activities shortly before her death. The evidence
revealed that, prior to December 1993, the victim had exclusive control of her sizeable assets
which largely consisted of certificates of deposit at two Oak Hill banks—Bank One and One
Valley Bank.8
Other evidence at trial revealed that on December 9, 1993, the victim and the
petitioner went to Bank One where they were assisted by longtime bank employee, Diana
Janney. According to Ms. Janney, the petitioner told her that the bank needed to add him to
the victim’s certificate of deposit accounts. When Ms. Janney asked the victim if that was
what she wanted to do, the victim “just kind of fell back in the chair a little bit and, you
know, threw her hands up and said, ‘Well, he’s going to get it, anyway, so we might as well
add him on.’” Ms. Janney explained to the victim that if the petitioner’s name were added
to her certificates of deposit, he would have equal rights to those funds. Ms. Janney testified:
“I was kind of reluctant, so when [the petitioner] saw my reluctance, he said, well, if I didn’t
add the name on there, he was going to use the power of attorney to add his name on them.”9
8
Although the victim’s total assets were thought to be in excess of $700,000,
following her death, the total assets were approximately at $470,000. See infra note 11.
9
At that time, the petitioner did not yet have the power of attorney. According to the
victim’s lawyer, Phillip Tissue, the victim executed a general power of attorney (“POA”) on
December 15, 1993, which authorized the petitioner to act as the victim’s attorney-in-fact.
He explained that the victim had been hospitalized previously during which time she was
(continued...)
5
Being uncomfortable with the situation, Ms. Janney sought the assistance of her supervisor,
Becky Booth.
Ms. Booth, another longtime bank employee, testified she was well acquainted
with the victim who had been coming to the bank for twenty years. She assisted Ms. Janney
in making certain the victim understood that anyone added to her accounts would have equal
access to their funds. She also cautioned the victim that it would be far more difficult to
remove someone from her accounts than it was to add them. Although Ms. Booth was also
uncomfortable with the situation, being aware that the victim had never before wanted
anyone else on her accounts, the bank employees proceeded to add the petitioner to the
victim’s certificate of deposit accounts totaling in excess of $400,000.10 At this same time,
the petitioner was also added to the victim’s Bank One safety deposit box in which she kept
an unknown amount of cash and certificates of deposit.
9
(...continued)
unable to handle her business affairs and she wanted someone authorized to act on her behalf
if something like that were to happen again. The petitioner delivered a copy of the POA to
Bank One.
10
A One Valley Bank employee testified that on December 10, 1993, the victim added
the petitioner to her six accounts held at that bank, which totaled approximately $68,000.
6
According to Ms. Janney, approximately one week later, the victim returned
to the bank, alone, seeking to remove the petitioner from her certificate of deposit accounts.
The victim was advised that the only way to remove the petitioner from her accounts was to
close them, which would result in a financial penalty. Because the victim did not want to
incur a penalty, no further action was taken at that time.
On February 2, 1994, the victim again visited Bank One by herself. Upon
examining her safety deposit box, she became very upset because she believed some money
and/or certificates of deposit were missing. Ms. Janney explained that the certificates of
deposit were used to fund a trust that was established in December,11 but the victim did not
appear to understand. The victim immediately closed out her old safety deposit box, opened
a new one for her exclusive use, and told Ms. Janney that she wanted to change her Will
because she did not want the petitioner to have anything.
After leaving Bank One on February 2nd, the victim visited Mr. Tissue, who
prepared a revocation of the POA as part of the victim’s apparent effort to regain control of
11
The victim’s lawyer, Mr. Tissue, had calculated the victim’s assets to be in excess
of $700,000 based on information she had provided to him. Based on his legal advice, the
victim executed a trust agreement in late December 1993, so as to reduce her estate for tax
purposes. The trust provided the petitioner with $10,000 per year from the victim’s Bank
One accounts.
7
her assets.12 Describing the victim as distraught based on her belief that the petitioner had
taken money from her safety deposit box, Mr. Tissue testified that the victim expressed a
desire to change her Will. An appointment was made for her to return to his office the
following day at which time she reiterated her desire to change her Will. Not knowing whom
to designate as her beneficiary, they discussed the possibility of leaving her estate to
charities.13
On February 7, 1994, the victim, this time accompanied by the petitioner,
appeared at Mr. Tissue’s office. Because he was unable to see them at that time, an
appointment was made for them to return on February 10, 1994. This appointment was never
kept because around 4:00 a.m. the next day, February 8, 1994, a fire occurred in the trailer
shared by the petitioner and the victim.
During the ensuing investigation by law enforcement and the office of the State
Fire Marshal, the petitioner maintained he awoke around 3:00 a.m. to noises and the sound
12
On February 3, 1994, Bank One received a copy of this revocation.
13
At the request of Mr. Tissue, Tim Velie, Senior Vice President of Bank One, was
present at this meeting to assist in identifying options for the victim to regain control of her
assets. According to Mr. Velie, the victim did not want the petitioner to have control over
her funds; she expressed a preference to throw her money into the river rather than allow the
petitioner to have her money.
8
of the victim yelling.14 According to the petitioner, upon opening his bedroom door, he felt
intense heat, saw that the hallway was filled with smoke, and closed his door. He told the
investigators that he tried to telephone for help, but alleged the home telephone was not
working properly. The petitioner contended that seeing no other means of escape, he exited
the trailer through his bedroom window with a few items of clothing, his shoes, his shotgun,
and his keys.15 In describing his effort to get help, the petitioner told investigators he got into
his truck and drove to the homes of neighbors. He further stated that after getting no
response at the first two homes, he drove back to the home of the closest neighbor, Michael
Suttle, who then placed a 911 call for assistance. By way of explanation for why he did not
simply run in the first instance to the Suttle home located approximately fifty-five feet from
the burning trailer, the petitioner indicated because his truck had a full tank of gas, he was
concerned the fire might cause the truck to explode given its proximity to the trailer.
14
Sergeant John Morrison of the West Virginia State Police took a statement from the
petitioner, who told him there was a POA that had been revoked; that the victim had around
$700,000; that he was her sole beneficiary; that they would fight; and that she had threatened
to remove him from her Will. During Sergeant Morrison’s investigation, he learned that
during the few weeks that the petitioner had access to the victim’s safety deposit box, he
opened it five times. He also spoke to Mr. Tissue who advised him that the victim’s assets
were in excess of $700,000, although Sergeant Morrison later learned that the figure was
closer to $470,000.
15
In exiting through the window, the petitioner sustained minor injuries. Jack Graley,
an emergency medical technician who had been called to the scene, testified that the
petitioner kept saying that his mom (the victim) was dead and that he would not go to the
hospital unless they got his blue bag that contained important papers and a safety deposit box
key.
9
The Oak Hill Volunteer Fire Department (“the VFD” or “the Department”)
arrived on the scene twelve minutes after receiving the fire alarm and the petitioner indicated
that his grandmother was still in the trailer.16 Firefighters discovered the unconscious victim
in her bed and removed her through her bedroom window. CPR was administered, and she
was transported to Plateau Medical Center in Oak Hill. The victim died on February 12,
1994. According to the State medical examiner, the cause of death was “smoke and soot
inhalation resulting in a brain dead condition.”
Chief Delbert Cordle of the Oak Hill VFD testified that while he did not
determine the cause of the fire, he thought, based on his observations, the fire had started in
the kitchen. After the fire was extinguished and the trailer secured, Chief Cordle turned the
16
Firefighter Brett Rust testified that upon his arrival at the fire scene, the petitioner
shined a flashlight towards the victim’s bedroom and said, “My mother is in that room, but
she’s probably dead by now.” Mr. Rust thought it was strange that the petitioner drove to
houses fifty and sixty yards away when there was a house right next door. While serving as
a member of the Department’s fire investigation team, Mr. Rust noted that the petitioner’s
bedroom was virtually untouched by smoke from the fire due to weather stripping
surrounding the bedroom door and a towel attached above the door.
Firefighter Samuel Jasper, Jr., testified regarding his participation in the rescue of the
unconscious victim through her bedroom window. Thereafter, he assisted in suppressing the
fire and, once that was accomplished, he was directed to check for hot spots. He “found a
hot spot on a vent, some smoldering in the second bedroom where the lady was” that was not
connected to the other fire. Based on his observations, Mr. Jasper believed the fire had
started in the kitchen beside the living room area.
Firefighter Jack Holt, who assisted in fire suppression and served as a member of the
Department’s fire investigation team, also observed what appeared to have been a small fire
in the victim’s bedroom; concluded that the main fire was in the kitchen area; and noted that
the toaster appeared to have heavy fire damage directly above and below it.
10
scene over to the Department’s fire investigation unit, which was led by Lieutenant Robert
Begley, and contacted the State Fire Marshal.17
Lieutenant Begley testified that both he and Assistant State Fire Marshal Roger
York went to the fire scene during the morning of February 8th.18 Chief Cordle and the
petitioner were already at the fire scene. Lieutenant Begley spoke to the petitioner who told
him they had been having a problem with an outlet in the kitchen; that he had been trying to
get his mother to move; and that while she had enough money to move, she refused to do so.
The petitioner also commented on how quickly the fire department had arrived.
During his investigation, Lieutenant Begley noted that the fire damage was in
the living room and kitchen areas of the trailer and, principally, in the kitchen “from the
counter top up.” The remainder of the trailer, including the bathroom and the victim’s
bedroom, had heat and smoke damage but no fire damage. Lieutenant Begley did not
observe any heat or smoke damage in the petitioner’s bedroom, which he attributed to the
towel and weather-stripping surrounding the bedroom door.19
17
Chief Cordle contacted the State Fire Marshal because someone had been trapped
in the burning trailer.
18
Begley testified regarding his fire investigation training, which included eighty hours
of course work at the National Fire Academy in Maryland.
19
As discussed infra, the defense maintained the petitioner had been using the towel
(continued...)
11
Lieutenant Begley also observed “there was a lot of fire damage directly
underneath the toaster” located on the kitchen counter top, noting that two sheets of
aluminum foil had been placed on top of the toaster; the bottom crumb tray had been
removed; and the toaster’s plunger, or lever, was in the down position. Lieutenant Begley
testified to seeing the charred material on the floor vent near the foot of the victim’s bed, and
he concluded there was no connection between that material and the fire in the kitchen area.
As part of his investigation, Lieutenant Begley photographed various areas of
the fire scene, including the toaster and the electrical breaker box located in the petitioner’s
bedroom. Upon finding three circuit breakers that appeared to be tripped, he flipped them
off, back on, and then off again. These actions were criticized by the petitioner’s fire experts
at trial.
The State called three fire experts at trial: Assistant State Fire Marshal Roger
York; Steven Cruikshank, Director of Emergency Services and Fire Coordinator for Fayette
County;20 and Harold Franck, an expert in electrical and forensic engineering and fire
determination. Each expert offered testimony concerning fire cause and origin based on their
19
(...continued)
and the weather-stripping to keep noise and light from disturbing the victim.
20
Assistant State Fire Marshal Roger York asked Mr. Cruikshank to investigate the
fire and give his opinion on cause and origin.
12
respective examinations of the trailer and its contents. All three of these witnesses testified
concerning the materials surrounding the petitioner’s bedroom door, which effectively
prevented smoke from entering the room; their conclusions that the area of fire origin was
in the kitchen and the cause of the fire was the toaster; and their respective determinations
that there had been a second, independent incendiary fire in the victim’s bedroom that had
self-extinguished.
Assistant State Fire Marshal York21 described the manner in which he
investigated the fire. Based on smoke patterns and other evidence, he concluded that the
victim’s bedroom door and window were open at the time of the fire, which allowed for
smoke to travel into her room, across her bed where she was sleeping, and vent out her
bedroom window. After noting the petitioner would have knowledge of air movement from
his work as a coal miner, Mr. York testified that he found an anamometer in the petitioner’s
bedroom, which is a device used to measure airflow in an underground mine.22 When asked
21
Mr. York spoke to the petitioner, who explained his actions upon realizing the trailer
was on fire. He also told Mr. York that he went to the hospital, but returned to the trailer to
get his VCR, Nintendo, and clothing. When Mr. York asked the petitioner whether he was
aware of any problems in the trailer, the petitioner noted a lightbulb near the kitchen stove
that he thought was problematic and indicated that the furnace needed to be repaired. Both
of these items were examined and eliminated as potential fire causes. The petitioner
volunteered to Mr. York that the victim had revoked a power of attorney; that she had an
appointment to see a lawyer on February 10th; and that he was to get everything under the
victim’s Will.
22
On cross-examination, Mr. York agreed that the use of an anamometer requires a
(continued...)
13
whether the smoke detector worked, the petitioner told Mr. York that the detector did not
emit sound during the fire.
Regarding the fire’s origin, Mr. York testified he systematically eliminated all
potential accidental causes and determined that the fire was incendiary in nature due to
tampering with the toaster, which was made to appear accidental. He testified that the small
fire in the victim’s bedroom was not caused by the other fire, nor by the trunk-line of the
furnace.23 On cross-examination, Mr. York conceded that the material involved in the second
fire could be the same type of fire debrís found in the kitchen and living room areas.24
Mr. Cruikshank, who had investigated approximately 200 trailer fires, testified
that he began his investigation by examining the exterior of the trailer before entering and
progressing from the least to heaviest areas of burn. He found major fire involvement in the
kitchen with the toaster being the only potential heat source, noting heavy damage to the
toaster’s electrical cord. Mr. Cruikshank could find no accidental cause for either fire and
22
(...continued)
special training and certification and stated that he did not check to see whether the petitioner
had that certification.
23
It was also determined that the furnace thermostat was working properly and was set
at seventy-five degrees.
24
When defense counsel posed this same suggestion to Mr. Franck, he responded that
while he did not do a close inspection of the material, he did not think it was ceiling tile,
explaining the material would had to have been hot and burning.
14
concluded that the burning of the trailer was intentional: “[W]hen you have two separate
fires and you can’t connect the two, it’s considered an incendiary fire.”25
Mr. Franck, who had investigated between 400 and 500 fires,26 eliminated all
potential accidental causes for the fires, including those identified by the petitioner, i.e., a
light bulb above the kitchen stove and the furnace/thermostat. He determined that the
primary fire began in the kitchen near the toaster based on the degree of fire damage to this
area and the “V” smoke pattern above the toaster. Mr. Franck analyzed the toaster in his lab,
which revealed how it had been used to set the fire. He found that the two pieces of wire that
fell out of the toaster during his examination were suspicious because they had arced on two
ends, which was supportive of his conclusion that the toaster cord had been stuffed inside the
bottom of the toaster.27 Mr. Franck also observed that the spring to the toaster’s control lever
had been manipulated, which defeated the purpose of the lever and allowed the toaster to
25
Mr. Cruikshank testified that he looked at, but had no concerns, regarding a living
room lamp. As discussed infra, the petitioner’s trial experts opined there was a single,
accidental fire caused by a short-circuit in this lamp.
26
Mr. Franck served as the executive secretary of the West Virginia Chapter of the
International Association of Arson Investigators. He also served on that organization’s
international training and education committee, which caused him to be involved in teaching
arson investigation to firefighters.
27
Explaining further, Mr. Franck stated that when a wire short-circuits, it will do it at
one point, and that it was “hard to believe that [the wire] will short-circuit and separate at this
one point and then two inches further it will separate again, because the electricity has been
cut off to it.”
15
remain on. This, in turn, caused the insulation on the cord stuffed inside the toaster to burn
and catch fire.28 Mr. Franck found that his conclusions were further supported by a “saddle
mark” on a piece of the toaster wire, which he determined was caused by the wire resting on
a heating element inside the toaster.
The petitioner’s trial counsel cross-examined Mr. Franck regarding National
Fire Protection Association 921 (“NFPA 921”). Mr. Franck testified that he possessed all of
the NFPA standards, including NFPA 921, which he described as guidelines for fire
investigation. With regard to the tripped breakers that Lieutenant Begley manipulated, Mr.
Franck agreed with defense counsel that NFPA 921states that you should not move items that
are suspect in a fire. Mr. Franck added that things are often moved around during the fire
suppression effort, which is why fire investigators necessarily gather information from those
involved in extinguishing the fire when making a cause and origin determination.
28
Mr. Franck also examined the smoke detector, which did not activate during the fire.
He determined that it was hard-wired to the trailer’s electricity, rather than being battery-
powered; that it was in proper working order; and that it was on an electrical circuit for
which he found the breaker in the “off” position. On cross-examination, defense counsel
asked whether he was aware that the breaker had been placed in the “off” position by
Lieutenant Begley. Mr. Franck responded that he could only testify concerning what he
found in the breaker box, which he considered to be consistent with all other evidence at the
fire scene.
16
Turning to the petitioner’s evidence, his trial strategy was to attack the quality
of the State’s fire investigation and the validity of the State’s theory about the cause of the
fire. He also attempted to rebut the State’s motive evidence, i.e., the victim’s intent to
disinherit the petitioner. Regarding the towel and weather-stripping surrounding his bedroom
door, the petitioner presented testimony of various persons who expressed their understanding
that these materials had been used to subdue light and sound so as not to disturb the victim.
In addition, the petitioner presented several cause and origin witnesses,29 who
testified that there was no evidence of a fire in the victim’s bedroom; that there was a single,
accidental fire that originated in the living room; that the single fire was caused by a short
circuit in a living room lamp; and that the fire did not start in the area where the toaster was
located. During their trial testimony, each of these witnesses was handed the charred debrís
that had been found in the victim’s bedroom and asked to examine it, and each person testified
that it looked like the burned ceiling tile remains that had been observed in the burn area of
the trailer.
29
Two such witnesses were Robert Hebb, Jr., and Rodney Carney, both longtime
firefighters for the City of Beckley, West Virginia, and both trained in fire investigation. Mr.
Hebb testified that he observed a “V” smoke pattern, which showed that the fire originated
in the living and moved up and over the counter top and into the kitchen. Mr. Carney
described the beading on the living room lamp cord as supportive of his conclusion that the
fire was caused by the lamp short-circuiting and arcing. He also concluded that the damage
in the area where the toaster had been located was not nearly as extensive as the fire damage
in the living room.
17
Tim May, a professional fire investigator who had taught fire investigation at
the National Fire Academy in Maryland, and who travels the world teaching fire investigation,
testified as an expert for the defense. He visited the fire scene on April 13, 1995. Following
his investigation, he concluded this was “an accidental fire, no question whatsoever.” After
explaining the “prescribed” way to conduct a cause and origin examination, he stated that his
examination of the trailer revealed that the fire, “without doubt,” started in the living room
and not in the toaster.30 According to Mr. May, the beading on the living room lamp’s
electrical cord evidenced that the wire had shorted and arced, which caused the fire.
Regarding the charred debrís found in the victim’s bedroom, Mr. May testified it was
absolutely burned-out ceiling tile that had made its way into the victim’s bedroom in the
normal process of a fire scene, explaining that “if you walk through burning material, you
carry it with you, and that’s exactly what happened.” In conclusion, Mr. May was critical of
the State’s fire investigators, maintaining their case made no sense and that their reports and
testimony conflicted “with everything from a breaker box, to the area of origin, to the position
of a toaster[.]”
The petitioner also presented the testimony of Charles Kovarik, who was
qualified as an expert in electrical engineering. Like Mr. Franck, Mr. Kovarik examined the
30
By the time Mr. May investigated the fire scene, which was more than a year after
the fire, the toaster had already been removed from the trailer.
18
toaster. Unlike Mr. Franck, he determined that the toaster was not the source of the fire; that
he was certain it was not on at the time of the fire; and that the interior of the toaster was
“quite clean,” whereas its exterior looked like it was the “victim” of a fire. He also found “no
physical evidence that confirmed that it was rigged,”31 and he attributed the beading on the
toaster’s electrical cord as being caused by the fire, rather than having caused the fire. He also
disagreed with Mr. Franck’s conclusions regarding “saddle marks” on the toaster cord.32
Like Mr. May, Mr. Kovarik agreed that the conductors shorted in the living
room lamp’s wiring, which created an arc that produced enough energy to create a fire.33 He
further testified that once the short circuit welded the lamp’s wiring together, it would have
caused the breaker to trip34 which, in turn, would have cut off power to the smoke detector,
rendering it inoperable.
31
In criticizing Mr. Franck’s analysis of the toaster, Mr. Kovarik stated that had he
been allowed to retain the toaster for a longer period of time, he would have obtained an
exemplar toaster for comparison.
32
Expressing his unfamiliarity with the term “saddle mark,” Mr. Kovarik stated he did
not think those particular words were in “the dictionary of electrical terms that [] [he] kn[e]w
of.”
33
When asked on cross-examination whether the short-circuit he found could have
been caused by the fire, rather than causing it, Mr. Kovarik responded that “[i]t’s always
ambiguous when you find electrical activity that’s abnormal in the area of the point of
origin.”
34
Mr. Kovarik testified that he could not examine the breaker because it was no longer
in the trailer at the time of his investigation.
19
With regard to the victim’s financial activities, the defense maintained during
closing argument that the evidence showed that the eighty-one-year-old victim in declining
health wanted to transfer control of her money to her designated heir, the petitioner, through
the creation of joint accounts and the POA. As further support for the victim’s intentions, the
defense stressed that she had further allowed a trust to be created for the petitioner’s benefit.
The defense also maintained that the victim was simply confused when she thought the
petitioner had stolen some of her money from the safety deposit box because those funds had
merely been forwarded to the trust account.35
In rebuttal, the State recalled Mr. Franck, who testified that the living room
lamp did not cause the fire. He described in some detail how the shape of the beading on the
lamp’s cord showed that it was caused by the fire, rather than causing the fire, which he
contrasted with the shape of the beading on the toaster cord, which showed that it had caused
35
Part of the petitioner’s trial strategy was to show that the victim was suffering from
dementia in rebuttal to the testimony of the bank employees who perceived no indication of
mental illness in their interactions with the victim. To that end, he presented the testimony
of a neurologist who testified that his examination of the victim’s brain led him to opine that
she suffered from Alzheimer’s disease, which can cause paranoia. He further testified that
persons with breathing issues often sleep with their window open. The victim’s longtime
friend, Kenneth Elder, testified he was aware of the victim’s breathing problems and that she
slept with her bedroom window slightly open. During the State’s cross-examination of Mr.
Elder, he confirmed that he told an investigator that the victim said she was “scared to death”
of the petitioner.
20
the fire. He further described the evidence showing that the lamp had not short circuited
internally, but was externally attacked by the fire.
On September 8, 1995, after an eleven-day trial, the jury found the petitioner
guilty of first degree murder without a recommendation of mercy. The circuit court entered
an order on the verdict and sentenced the petitioner to the penitentiary for life without the
possibility of parole. In December 1996, this Court refused the petitioner’s direct appeal. See
State v. Samuel R. Anstey, Docket No. 960855.36
B. The Current Habeas Proceeding
On May 12, 2014, the petitioner filed a petition for a writ of habeas corpus in
the Circuit Court of Fayette County challenging his murder conviction.37 He demanded a new
trial or, in the alternative, an omnibus habeas corpus hearing.38
36
The petitioner raised nineteen issues in his direct appeal, which generally fell into
the following areas: (1) insufficient evidence to support the conviction, (2) prosecutorial
misconduct, (3) ineffective assistance of counsel, (4) denial of a fair trial, (5) denial of the
right of confrontation, (6) judicial bias, and (7) improper sanctions.
37
See W.Va. Code, §§ 53-4A-1 to -11 (2008) (West Virginia Post-Conviction Habeas
Corpus Act).
38
The petitioner has challenged his murder conviction on prior occasions through other
habeas petitions. On February 6, 1998, the petitioner filed a pro se petition for a writ of
habeas corpus in the Circuit Court of Fayette County styled State ex rel. Anstey v. Trent, 98
C-46 (1998). The circuit court dismissed that petition without a hearing on February 11,
1998. The petitioner appealed the dismissal to this Court, which was refused on December
(continued...)
21
The petitioner asserted in the habeas petition that the advancement of fire
science and arson investigation since his 1995 conviction constitutes newly discovered
evidence and demonstrates that his trial was fundamentally unfair in violation of his right to
due process of law. According to the petitioner, the advancement is represented by NFPA
921. Although first published in 1992, the petitioner contends that NFPA 921 became the
national authority for standards in fire investigation in 2000 upon its endorsement by the
United States Department of Justice.
According to the petitioner, prior to 2000, the scientific method which forms
the basis of NFPA 921 was not widely accepted and was disregarded by the State’s witnesses
in investigating the trailer fire. He further notes that the only mention of NFPA 921 at trial
was during his counsel’s cross-examination of the State’s expert, Harold Franck, concerning
the tripped breakers. The petitioner maintained that, even as first written, the application of
38
(...continued)
16, 1998. His motion to reconsider this Court’s refusal was denied on January 21, 1999.
The petitioner was also denied habeas relief by this Court in a separate matter. See Syl. Pt.
3, State ex rel. Anstey v. Davis, 203 W.Va. 538, 509 S.E.2d 579 (1998) (“Prison inmates have
no constitutional right to possess personal computers in their cells.”). Finally, in February
1999, the petitioner filed a petition for a writ of habeas corpus in the United States District
Court for the Southern District of West Virginia in which he challenged his Fayette County
murder conviction. The District Court rejected the petition as untimely filed. See Anstey v.
Painter, 2000 WL 34012352 (S.D. W.Va. Mar. 16, 2000). The petitioner’s appeal from that
decision was dismissed by the United States Court of Appeals for the Fourth Circuit in
Anstey v. Painter, 20 F.App’x. 171 (4th Cir. 2001).
22
NFPA 921 to the investigation would have put the case in a different light and would have
exposed the conclusions of the State’s witnesses as being objectively unreliable.39
In response, the State argued that because NFPA 921 was published in 1992,
well in advance of the petitioner’s 1995 trial, it does not qualify as newly-discovered
evidence. Arguing that NFPA 921 has never been compulsory, the State contends the
provisions of NFPA 921 demonstrate that deviations from the procedures set forth therein do
not automatically invalidate an expert’s opinion. The State maintained that the use of NFPA
921 in a new trial would only constitute impeachment evidence and, therefore, could not serve
as a basis for habeas relief. The petitioner replied that, while NFPA 921 is not compulsory,
it goes beyond impeachment evidence and is of significance in the challenge to his conviction.
The petitioner reasons that, at a minimum, he is entitled to an omnibus hearing to explore
more thoroughly the change in science as it relates to the reliability of the evidence used to
convict him.
39
For example, the petitioner stated in his petition that one of the State’s investigators
(Lt. Begley), who noticed the toaster on the counter top with its plunger or lever in the down
position, “raised the plunger until it released” and then pushed it back down. He also moved
the toaster to examine it and then placed it back “in what he believed was its original
position.” It was only after all of these actions that Begley photographed the toaster, which
led to the petitioner’s assertion that “[t]he mishandling of the toaster, on which the State
hinged its arson theory, is in direct contravention to the procedures that NFPA 921 requires
for the preservation of evidence.” In addition, the petitioner asserted the State’s
determination that a separate fire occurred in the victim’s bedroom was conclusory and
contravened NFPA 921’s requirement that all data pertaining to the determination of a fire’s
origin be analyzed.
23
On December 24, 2014, the circuit judge, who presided over the petitioner’s
criminal trial, denied habeas relief. The circuit court found that an omnibus hearing was
unnecessary because the petition and its attached affidavits thoroughly described the claimed
advancements in scientific fire investigation, which was at the heart of the petitioner’s
argument, and that no testimony or other evidence was necessary for the court to rule.
In denying habeas relief, the circuit court agreed with the State that NFPA 921
is not newly-discovered evidence since it was in existence prior to the petitioner’s trial.
Moreover, noting that NFPA 921 has never been compulsory, the circuit court agreed with
the State that its use in a new trial would be cumulative and constitute nothing more than
impeachment evidence. Finally, the circuit court found that the criticisms set forth in the
affidavits of the petitioner’s new fire experts were not dissimilar to those offered by the
petitioner’s trial experts who testified that the State’s investigative techniques and methods
were flawed and their conclusions erroneous.
The petitioner appeals to this Court from the circuit court’s December 24, 2014,
order. See W.Va. Code § 53-4A-9 (2008) (providing for appeal to this Court from judgment
under Post-Conviction Habeas Corpus Act).
24
II. Standard of Review
Although several issues were raised below, in this appeal, the petitioner only
assigns as error the circuit court’s application of the rule governing newly discovered
evidence, specifically as it relates to fire investigation science, and its denial of an evidentiary
hearing. Our review of the circuit court’s final order denying habeas corpus relief is
threefold:
In reviewing challenges to the findings and conclusions of
the circuit court in a habeas corpus action, we apply a three-
prong standard of review. We review the final order and the
ultimate disposition under an abuse of discretion standard; the
underlying factual findings under a clearly erroneous standard;
and questions of law are subject to a de novo review.
Syl. Pt. 1, Mathena v. Haines, 219 W.Va. 417, 633 S.E.2d 771 (2006); see also Syl. Pt. 2,
State ex rel. Thompson v. Ballard, 229 W.Va. 263, 728 S.E.2d 147 (2012) (“‘Findings of fact
made by a trial court in a post-conviction habeas corpus proceeding will not be set aside or
reversed on appeal by this Court unless such findings are clearly wrong.’ State ex rel.
Postelwaite v. Bechtold, 158 W.Va. 479, 212 S.E.2d 69 (1975).”). Further, “[o]n an appeal
to this Court the appellant bears the burden of showing that there was error in the proceedings
below resulting in the judgment of which he complains, all presumptions being in favor of the
correctness of the proceedings and judgment in and of the trial court.” Syl. Pt. 2, Perdue v.
Coiner, 156 W.Va. 467, 194 S.E.2d 657 (1973). With these standards in mind, we proceed
to determine whether the circuit court erred in denying habeas corpus relief to the petitioner.
25
III. Discussion
The petitioner sets forth two assignments of error. First, he contends that his
right to due process of law was violated because the habeas court failed to recognize, as
newly-discovered evidence, the scientific advancement in fire investigation since his 1995
conviction. According to the petitioner, this newly-discovered evidence is represented by
NFPA 921, which reflects the standard of care in fire investigation and demonstrates that his
trial and conviction were fundamentally unfair. Second, the petitioner contends that the
newly-discovered evidence is of a scientific and complicated nature such that the habeas court
should have permitted him to develop the record through an omnibus habeas corpus hearing.
A. Newly-discovered Evidence
1. The Frazier factors
In determining whether newly-discovered evidence warrants a new trial, this
Court considers the following factors:
“A new trial will not be granted on the ground of newly-
discovered evidence unless the case comes within the following
rules: (1) The evidence must appear to have been discovered
since the trial, and, from the affidavit of the new witness, what
such evidence will be, or its absence satisfactorily explained. (2)
It must appear from facts stated in his affidavit that plaintiff was
diligent in ascertaining and securing his evidence, and that the
new evidence is such that due diligence would not have secured
it before the verdict. (3) Such evidence must be new and
material, and not merely cumulative; and cumulative evidence is
additional evidence of the same kind to the same point. (4) The
evidence must be such as ought to produce an opposite result at
26
a second trial on the merits. (5) And the new trial will generally
be refused when the sole object of the new evidence is to
discredit or impeach a witness on the opposite side.” Syllabus
Point 1, Halstead v. Horton[,] 38 W.Va. 727, 18 S.E. 953 (1894).
Syllabus, State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979); accord Syl. Pt. 1, State v.
O’Donnell, 189 W.Va. 628, 433 S.E.2d 566 (1993); see generally W.Va. R. Crim. P. 33
(addressing motion for new trial based on newly-discovered evidence). All five factors must
be proven before a new trial will be awarded.
We begin our analysis by observing that the petitioner has not cited any
controlling appellate authority in this state to the effect that an expert opinion based on a
methodology other than NFPA 921 is inadmissible as inherently unreliable. Nor does the
petitioner assert that NFPA 921 has been generally accepted as authoritative or compulsory
in West Virginia, either at the time of the petitioner’s trial in 1995, or today. Although the
National Fire Protection Association, or NFPA, generally, has been cited in statutory40 and
regulatory laws in this state,41 we cannot find, nor do the parties cite, any statute or regulation
40
See W.Va. Code § 29-3-5(b) (2013) (stating, in part, that “the State Fire Commission
shall propose and promulgate comprehensive rules for the safeguarding of life and property
from the hazards of fire and explosion to be known as the State Fire Code. . . . Whenever
any new or revised code or standard is adopted by the fire codes published by the National
Fire Protection Association, the State Fire Commission may propose and promulgate revised
rules reflecting such updated codes and standards”); Teller v. McCoy, 162 W.Va. 367, 375,
253 S.E.2d 114, 120 (1978) (noting that State Fire Commissioner’s regulations include
National Fire Code published by the National Fire Protection Association).
41
See also W.Va. C.S.R. § 87-1-2 (2014) (adopting NFPA 1 Fire Code (2012) which
(continued...)
27
where the State Fire Commission has expressly adopted NFPA 921 as either a compulsory or
mandatory standard to be followed in fire investigations in this state.42 In fact, the statute
41
(...continued)
expressly states that its purpose is “to prescribe minimum requirements necessary to establish
a reasonable level of fire and life safety and property protection from the hazards created by
fire, explosion, and dangerous conditions” and which incorporates by reference other NFPA
standards but not NFPA 921); W.Va. C.S.R. § 87-4-4 (2013) (adopting certain NFPA
provisions with respect to the State Building Code); W.Va. C.S.R. §§ 87-8-1 to -8 (2015)
(referencing NFPA provisions concerning training levels, curriculum approval, and
equipment standards in relation to volunteer firefighters).
42
We observe that some jurisdictions have recognized NFPA 921 as either an accepted
reference or standard for fire investigators. See, e.g., McCoy v. Whirlpool Corp., 214 F.R.D.
646, 653 (D. Kan. 2003) (“The ‘gold standard’ for fire investigations is codified in NFPA
921, and its testing methodologies are well known in the fire investigation community and
familiar to the courts.”); Tunnell v. Ford Motor Co., 330 F.Supp.2d 707, 725 (W.D. Va.
2004) (noting that many courts have recognized NFPA 921 as peer reviewed and generally
accepted standard). However, even when courts recognize NFPA 921 as the standard for fire
investigation, they often qualify that recognition.
For example, in Fireman’s Fund Insurance Co. v. Canon U.S.A., Inc., 394 F.3d
th
1054 (8 Cir. 2005), the Court of Appeals concluded that “[b]ecause the experts did not
apply the principles and methods of NFPA 921 reliably to the facts of the case, the district
court did not abuse its discretion in concluding that [the] . . . expert opinions were
unreliable.” Id. at 1060. One year later, however, the same court upheld the admissibility
of a fire expert’s opinion testimony without reference to NFPA 921. See Hickerson v. Pride
Mobility Prods. Corp., 470 F.3d 1252, 1257 (8th Cir. 2006) (addressing defendants’
contention that plaintiff’s fire cause and origin expert’s opinions were unsupported by
“reliable methodology” and concluding that expert’s methodology was sound, noting his
examination of burn patterns and heat, fire, and smoke damage, and his consideration and
elimination of other possible causes of fire in area of origin). Two years later, the Eighth
Circuit rejected a litigant’s attempt to rely upon Fireman’s Fund for the proposition that “all
expert testimony on fire causation must be supported by appropriate testing.” Shuck v. CNH
America, LLC, 498 F.3d 868, 875 n.3 (8th Cir. 2007). As the Court of Appeals explained,
Fireman’s Fund does not stand for a bright line rule that expert
opinions in fire cases always must be supported by testing to be
admissible. Rather, Fireman’s Fund stands for the more general
(continued...)
28
pertaining to the State Fire Marshal’s fire investigations does not mention NFPA 921. See
W.Va. Code § 29-3-12(f) (stating, in part: “The State Fire Marshal may, at any time,
investigate as to the origin or circumstances of any fire or explosion or attempt to cause fire
or explosion occurring in the state.”).43 Although the petitioner’s trial counsel relied upon
NFPA 921 to criticize aspects of the investigations conducted by the State’s fire investigators,
the petitioner has failed to supply any authority that the State’s cause and origin investigation
had to follow the method outlined in the NFPA 921 to be admissible at the time of his trial.
Moreover, even after the U.S. Department of Justice described NFPA 921 as having “become
a benchmark for the training and expertise of everyone who purports to be an expert in the
origin and cause determination of fires[,]”44 NFPA 921 continues to be described in terms of
42
(...continued)
propositions that testing, if performed, must be appropriate in
the circumstances and must actually prove what the experts
claim it proves.
Id.
43
The petitioner states in his brief that some state legislatures have passed resolutions
stating that NFPA 921 is the standard of care in fire investigations. In that regard, whether
NFPA 921 is adopted as the compulsory or mandated standard to be followed in fire
investigations in West Virginia is a matter of fire policy that is best left to the State Fire
Commission and/or the state legislature.
44
See Fire and Arson Scene Evidence: A Guide for Public Safety Personnel, Research
Report, U.S. Department of Justice, Office of Justice Programs, Technical Working Group
on Fire/Arson Scene Investigation, p. 6 (June 2000), https://www.ncjrs.gov/pdffiles1/nij/181
584.pdf.
29
constituting “guidelines.”45 In fact, NFPA 921 itself provides that its procedures are not
compulsory, expressly stating in § 1.3 that “[d]eviations from these procedures, however, are
not necessarily wrong or inferior but need to be justified.”
When analyzed under the Frazier factors, it becomes abundantly clear that
periodic amendments to NFPA 921 do not constitute newly-discovered evidence that would
warrant a new trial in the case at bar. See also Green v. Koerner, 312 F.App’x. 105, 110 (10th
Cir. 2009) (affirming denial of habeas petition where petitioner cited developments in fire
science since her conviction in 1995, and finding that state developed case based on best
forensic techniques available at that time, “even if later scientific developments put those
techniques into question”). In addition, we agree with the circuit court’s conclusion that the
affidavits of the petitioner’s new fire experts– Gerald Hurst, a consulting chemist and expert
on fire analysis, and Mark Goodson, an electrical engineer and expert in fire investigation and
45
See Barr v. Farm Bureau Gen. Ins. Co., 806 N.W.2d 531, 533 (Mich. Ct. App. 2011)
(addressing plaintiff’s criticism of state fire marshal investigator’s methodology as allegedly
deviating from “set of guidelines” referred to as NFPA 921 and observing that “deviations
from its procedures are not necessarily wrong, but need to be justified.”); Sanders v.
Nationwide Mut. Ins. Co., No. 99954, 2014 WL 2565770, at *3 (Ohio Ct. App. June 5, 2014)
(noting that fire expert, who was member of National Fire Protection Association, testified
that “NFPA publishes a recommended guideline called NFPA 921”) (emphasis added);
Stremke v. Fisher & Paykel Appliances, Inc., No. 71424-4-I, 2015 WL 5345399, *3 n.4
(Wash. Ct. App. Sept.14, 2015) (observing that defendant offered no authority for argument
that NFPA 921 is “tantamount to a legally enforceable duty.”).
30
causation–reflect they would merely offer cumulative evidence directed towards impeaching
the State’s fire experts, making the third and fifth Frazier factors unavailing.46
Mr. Hurst states in his affidavit that NFPA 921 is updated every three or four
years and describes the fire investigation procedures that are to be followed in any fire
investigation. He concludes the only scientifically supportable conclusion is that the cause
and origin of the trailer fire remains “undetermined.” Mr. Hurst also avers “to a reasonable
degree of scientific certainty” that the State’s fire investigation, under current NFPA 921
standards, “did not conform to recommended fire investigative protocol, was not conducted
in a methodical and reliable fashion, and did not utilize the scientific method to determine
origin and causation.” Specifically, he determined that the State’s hypothesis–that a fire
originated with the toaster in the kitchen and in the victim’s bedroom–was not scientifically
valid and was the product of “expectation bias,” rather than validation through the scientific
method.47
46
Frazier, 162 W.Va. at 935-36, 253 S.E.2d at 535, syl., in part (new evidence must
not be merely cumulative, i.e., of same kind to same point, and new trial will generally be
refused when sole object of new evidence is to discredit or impeach witness on opposite
side).
47
Assistant State Fire Marshal York testified that he was called to the fire scene the
day of the fire to investigate because there was a possible fatality; that he did not know at that
time whether the fire was accidental; and that the petitioner was not a suspect at that time.
31
Significantly, Mr. Hurst’s criticisms, at their essence, echo those addressed by
defense counsel during his cross-examination of the State’s fire experts, as well as those
voiced by the petitioner’s experts at trial. For example, although Mr. Hurst contends the
State’s expert (Harold Franck) formed a hypothesis and then set out to prove its validity, Mr.
Franck’s trial testimony reflects that he took possession of the toaster for a closer examination
in his lab because it was the sole potential cause of the fire in what he had determined to be
the area of fire origin. Mr. Franck also examined the electrical outlet into which the toaster
had been plugged to determine whether it was involved in causing the fire. The fact that the
results of his analyses pointed to an incendiary fire does not indicate that he set out to prove
arson.
Mr. Hurst also criticizes the State’s investigators’ conclusion that there was a
second incendiary fire, as well as their failure to seize the purportedly discolored linoleum
surrounding the vent in the victim’s bedroom,48 and the failure to consider the possibility that
the charred debrís recovered from the purported second fire could have been carried into the
room during fire suppression and investigation. He further criticizes their reliance on “V”
burn patterns in the trailer;49 their photographing the circuit breaker to the smoke detector in
48
Although the State’s investigators did not seize the linoleum, they did photograph
it as it was found.
49
While Mr. Hurst states that Mr. Franck’s use of the “V” pattern near the toaster to
conclude that the fire origin was at the toaster is contrary to empirical studies, Mr. Franck’s
(continued...)
32
the “off” position without recognizing that the breaker had been turned to that position after
the fire; and their failure to consider locations other than the kitchen counter top as possible
points of origin. Mr. Hurst was also critical of Mr. Franck’s analysis regarding a “saddle
mark” on a section of the toaster cord, the beading on the toaster wire, and his reliance on the
“patterns” inside the toaster as a basis to conclude that the cord had been stuffed inside the
toaster. Again, as discussed above, each of these areas of criticism was fully explored either
in defense counsel’s vigorous cross-examination of the State’s experts, or through the trial
testimony of the petitioner’s fire experts, or both.50
The petitioner’s other new expert is equally critical of the State’s investigation.
In his affidavit, Mark Goodson describes how NFPA 921 incorporates the scientific method
into the field of fire investigation and has become the standard for assessing the reliability of
expert testimony.51 Following his review of those portions of the trial transcript and exhibits
49
(...continued)
trial testimony reveals that the “V” pattern was but one factor that he considered. As
Lieutenant Begley testified, a “V” pattern, while not conclusive, is one indicator of a fire’s
point of origin.
50
The circuit court noted in its habeas order that the petitioner’s defense team was
comprised of two “smart, aggressive, well-known and well-respected lawyers,” one of whom
previously served as a justice of this Court and is currently a sitting circuit court judge in
West Virginia.
51
Mr. Goodson sets forth in his affidavit the six steps in NFPA 921 for fire
investigation. In summary, those steps are directed to: (1) recognizing that a fire or explosion
has occurred; (2) defining the problem by examining the scene and reviewing previously
(continued...)
33
specifically related to the fire, Mr. Goodson concludes that the State’s cause and origin
witnesses did not follow the scientific method in connection with their investigation of the
trailer fire, and they used methods that are not currently accepted within the fire investigation
community today. He found Mr. Franck’s analyses and opinions to be so flawed as to compel
improper conclusions, particularly with regard to Mr. Franck’s analysis of the toaster and its
cord. These criticisms are not unlike those expressed by the petitioner’s trial expert, Charles
Kovarik, as discussed above. Further, although Mr. Goodson states that Mr. Franck should
have microscopically documented the contact between the toaster cord and the heating
element, the record shows that during Mr. Franck’s trial testimony, he specifically references
his “microscopic examination of these wires[.]” Mr. Goodson also cites Mr. Franck’s failure
to consider that Lieutenant Begley found the circuit breaker connected to the smoke detector
was tripped and moved it to the “off” position. Again, this criticism was developed during
the cross-examination of Mr. Franck and the other witnesses for the State, and in the direct
testimony of the petitioner’s fire experts.52
51
(...continued)
conducted investigations of the incident, interviewing of witnesses, etc.; (3) collecting data
based on observation or experience; (4) analyzing the data in the light of the investigator’s
knowledge, training, and experience; (5) developing a hypothesis based on the data analysis
of the data collected; and (6) testing the hypothesis by eliminating all other reasonable origins
and causes and comparing hypothesis to all known facts. Even if we were to assume that the
fire experts who investigated the subject fire were required to follow NFPA 921, we cannot
say that their respective investigations, at their essence, drastically deviated from these six
steps.
52
Mr. Goodson also criticizes Mr. Franck’s testimony regarding the smoke detector,
(continued...)
34
Based on all of the foregoing, it is clear that the attack advanced by the
petitioner’s current experts, while framed as deviations from NFPA 921 and “scientific”
methodology, is, at is essence, simply rebuttal and impeachment evidence.53 Furthermore, the
evidence the petitioner seeks to rely upon is cumulative of the petitioner’s trial experts who
thoroughly criticized the State’s investigation as being faulty and inaccurate. As the circuit
court correctly observed:
[o]f great importance and significance is the fact that
indeed two (2) expert witnesses did testify at trial on behalf of the
Petitioner. Both of said expert witnesses were unequivocally and
clearly critical and contradictory of the State’s expert witnesses,
and both of the defense trial experts testified that the fire in the
trailer was accidental in origin and that it was not started
intentionally. The Petitioner’s new expert witnesses may have
had the benefit of approximately twenty (20) years of
advancement in fire science, but the bedrock of their proposed
testimony would certainly be the same as was the testimony of the
Petitioner’s two (2) experts who testified at trial, i.e. that the
State’s experts’ investigative techniques and methods were
flawed, and their conclusions wrong.
52
(...continued)
noting that Mr. Franck thought it was “probably a carbon monoxide detector,” when it was
not. Mr. Goodson fails to mention, however, that Mr. Franck later testified during cross-
examination he was not saying that it was a carbon monoxide detector.
53
Under the fifth Frazier factor, while new impeachment evidence will not normally
mandate a new trial, we have also stated that a new trial should be granted where the first
four factors are met and the new impeachment evidence concerns the key prosecution
witness. State v. Stewart, 161 W.Va. 127, 136, 239 S.E.2d 777, 783 (1977). Because we
find that the other Frazier factors are not met here, a new trial not required.
35
The opinions of Mr. Franck and Mr. York were the result of a reliable process.
Both collected data; took photographs; noted the extent of damage in the various areas of the
trailer; and eliminated potential accidental causes for the fire by examining appliances and
electrical circuitry and outlets. Mr. Franck took the toaster and other materials to his lab where
they were subjected to further examination. Accordingly, we agree with the circuit court’s
conclusion that NFPA 921, the advancement of scientific method in the field of fire
investigations, and the criticism expressed by the petitioner’s new experts goes to the weight
to be attributed to the testimony of Mr. Franck and Mr. York–not to its admissibility at trial.
See Schlesinger v. United States, 898 F.Supp.2d 489, 504-05 (E.D. N.Y. 2012) (observing that
“no court in this circuit . . . has refused to admit expert testimony in an arson case because his
or her opinion was based on a methodology other than that prescribed in NFPA 921”; finding
that fire investigator’s conclusion that fire was incendiary was based on his years of experience
and his physical inspection of fire premises; and concluding that “[t]he decision not to follow
the methodology set forth in NFPA 921, as well as other purported flaws in the [investigator’s]
[] methodology . . . goes to the weight of the evidence, not its admissibility.”). Indeed, once
all of the expert testimony was received into evidence, “it was left to the jury to evaluate that
testimony and give it the weight to which it was entitled.” State v. Shingleton, No. 12-1445,
__ W.Va. __, __ S.E.2d __, at *10 (Mar. 24, 2016) (citation omitted); see also People v.
Jackson, No. 272776, 2008 WL 2037805, at *1 (Ct. App. Mich. May 13, 2008) (addressing
defendant’s challenge to opinions of state’s fire expert based on NFPA 921 and concluding
36
that deviations from those procedures are not necessarily wrong or inferior and did not render
expert’s opinion inadmissible since “[s]uch criticisms go to the weight rather than the
admissibility of the testimony.”).
The fourth Frazier factor is perhaps most problematic for the petitioner—that
his purported newly-discovered evidence ought to produce an opposite result at a second trial
on the merits. Although we have found no legal authority demonstrating that NFPA 921 is
either a compulsory or mandated standard for fire investigations in this state, the fact remains
that the criticisms being offered by the petitioner’s new experts are not new and their
conclusions are less favorable than those offered by the petitioner’s trial experts, who were
confident in their respective opinions that there was a single, accidental fire. In other words,
if the jury reached its unanimous verdict54 based on the substantial circumstantial evidence
presented against the petitioner, coupled with the State’s expert testimony that was subjected
to thorough cross-examination, we cannot find that similar criticisms offered by the petitioner’s
54
Following an eleven-day trial, the jury returned its verdict in less than three hours,
finding the defendant guilty of first degree murder without a recommendation of mercy.
37
new fire experts are likely to produce an opposite result at a second trial.55 As the circuit court
aptly summarized:
The Court, having presided over the Petitioner’s eleven (11) day
jury trial and having reviewed the transcript thereof, finds that
there was, beyond any doubt, overwhelming evidence clearly
supporting the jury’s unanimous guilty verdict. The Petitioner
was the only person, other than the victim, who lived in the trailer
and was in the trailer the night of the fire; the State’s physical
evidence concerning the conditions of the aforementioned electric
bread toaster following the fire was and clearly would be
suspicious to any reasonable person without any further
interpretation or opinion by any expert witness; the Petitioner’s
use of weather stripping to seal the area around his bedroom door,
despite his very weak argument that securing towels and other
materials with weather stripping around his bedroom door was to
suppress or prevent noise made by the Petitioner from disturbing
the victim in her bedroom, would clearly be considered, by any
reasonable person, to be highly suspicious conduct and
circumstances; the Petitioner’s gaining sole control of the victim’s
CDs, totaling in excess of found [sic] hundred thousand dollars
($400,000.00) following her death; and the victim’s revocation of
the aforementioned power of attorney within six (6) days and
victim’s desire to disinherit the Petitioner, expressed to Mr. Tissue
55
In State v. Davis, 217 W.Va. 93, 616 S.E.2d 89 (2004), the petitioner asserted that
she should have been granted a second trial based on new genetic testing that had been
performed on her son. We concluded that
[a]lthough it may be argued that the genetic test allegedly
proving that Seth had the condition was not available at trial, in
this Court’s view, the results of the test were merely cumulative
of what was presented at trial. . . . Overall, the evidence was not
such “as ought to produce a second trial on the merits,” and
consequently, it cannot be said that the circuit court abused its
discretion in denying a new trial on the new genetic test results.
Id. at 100, 616 S.E.2d at 96.
38
a mere six (6) days prior to the fatal fire, which clearly is strong
direct and circumstantial evidence, strongly supports the jury’s
unanimous guilty verdict, which was reached after two (2) hours
and forty-nine (49) minutes of deliberations.
Having considered this evidence, as well as the evidence given by neighbors and longtime
friends who testified the victim told them the petitioner was verbally and physically abusive
towards her and that all he wanted was her money,56 we concur in the circuit court’s
inescapable conclusion that
the expert testimony which the Petitioner now seeks to use as
“newly discovered evidence” is clearly not “such as ought to
produce an opposite result at a second trial on the merits” as
required by Frazier. The Court concludes, having heard all the
evidence at trial, that had the Petitioners “new” experts testified
at trial, the jury’s verdict would have been the same.
Accordingly, we uphold the circuit court’s denial of habeas relief on the basis that the
petitioner cannot meet the Frazier factors for newly discovered evidence.
56
At first blush, Bunch v. State, 964 N.E.2d 274 (Ct. App. Ind. 2012), seemingly
supports the petitioner’s argument herein. In Bunch, the petitioner appealed the denial of her
habeas petition wherein she sought to overturn her felony murder conviction based on newly-
discovered evidence. The appellate court reversed, determining that advances in the field of
fire victim toxicology analysis constituted newly-discovered evidence that warranted a new
trial. However, in reaching its decision, the court repeatedly noted that the prosecution had
offered no motive evidence for Bunch to have intentionally set the fire that killed her son.
In clear contrast to Bunch, here, the State presented a tremendous amount of motive evidence
against the petitioner, including testimony that the petitioner was abusive of the victim and
repeatedly sought money from her, and that the victim planned to disinherit the petitioner of
hundreds of thousands of dollars.
39
2. Due Process Violation and
Inadmissibility of Expert Testimony
In further support of his newly discovered evidence argument, the petitioner also
asserts that his due process rights were violated because the investigative techniques used
during the investigation of the subject fire would not be admissible at trial today, under a
Daubert/Wilt analysis, since fire investigations have become “scientific.” See Daubert v.
Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993); Wilt v. Buracker, 191 W.Va. 39, 443
S.E.2d 196 (1993). In Wilt and Gentry v. Mangum, 195 W.Va. 512, 466 S.E.2d 171 (1995),
we adopted a Daubert analysis which imposes a “gatekeeper” duty upon trial courts to screen
scientific expert opinions to ensure relevancy and reliability.
We first note that the petitioner’s argument on appeal is somewhat different from
the argument he raised before the circuit court, which was ineffective assistance of trial
counsel for their failure to raise a Daubert challenge to the State’s experts’ testimony at trial.
The circuit court disagreed, finding that Daubert “does not and did not apply to the State’s
expert witnesses.” As the State points out, if the methods employed by the State’s experts were
non-scientific, as the petitioner asserts, then Daubert/Wilt does not apply. See Watson v. Inco
Alloys Intern., Inc., 209 W.Va. 234, 545 S.E.2d 294 (2001) (finding expert engineer’s opinion
testimony was technical, not scientific, thus Daubert/Gentry gatekeeper analysis did not apply).
40
Even today, the admissibility of the State’s expert testimony would be assessed
under Rule 702 of the West Virginia Rules of Evidence57 as evidence based on technical or
specialized knowledge—and not under Daubert/Wilt.58 See, e.g., State v. McCracken, 218
57
Rule 702 (2014) provides:
(a) If scientific, technical, or other specialized knowledge
will assist the trier of fact to understand the evidence or to
determine a fact in issue, a witness qualified as an expert by
knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise.
(b) In addition to the requirements in subsection (a),
expert testimony based on a novel scientific theory, principle,
methodology, or procedure is admissible only if:
(1) the testimony is based on sufficient facts or data;
(2) the testimony is the product of reliable principles and
methods; and
(3) the expert has reliably applied the principles and
methods to the facts of the case.
58
In this regard, we decline the petitioner’s invitation to adopt Kumho Tire Co. Ltd.
v. Carmichael, 526 U.S.137 (1999), wherein the Supreme Court “ultimately concluded that
the gatekeeper function of Daubert also applied to expert testimony based on technical or
other specialized knowledge.” Watson, 209 W.Va. at 241 n.11, 545 S.E.2d at 301 n.11.
Further, even if the methodology employed by the fire investigators in 1994 had been
scientific, rather than technical, the petitioner does not cite any decision of this Court where
we have applied Daubert/Gentry retroactively in a habeas proceeding. Indeed, an alleged
error in the admission of scientific evidence that did not meet the Daubert standard is not
cognizable in a habeas corpus proceeding. See State ex rel. Thompson v. Ballard, 229 W.Va.
263, 728 S.E.2d 147 (2012) (affirming denial of habeas relief and noting that alleged error
in admission of scientific evidence that did not meet Daubert standard was not cognizable
in habeas corpus where such rulings did not rise to constitutional level); Syl. Pt. 4, State ex
rel. McMannis v. Mohn, 163 W.Va. 129, 254 S.E.2d 805 (1979) (“A habeas corpus
proceeding is not a substitute for a writ of error in that ordinary trial error not involving
constitutional violations will not be reviewed.”); see also Romano v. State, 909 P.2d 92, 112
(Okla. Crim. App. 1995) (“[W]e will not apply the Daubert analysis retroactively to scientific
subjects previously accepted as valid for expert testimony.”).
41
W.Va. 190, 624 S.E.2d 537 (2005) (finding no abuse of discretion in trial court’s admission
of testimony of fire investigator under Rule 702, noting that expert was firefighter for more
than forty years, was retired lead fire investigator, and served as consultant in fire and arson
investigations, and observing that defense had opportunity to cross-examine witness regarding
any issues raised).
Given the absence of any authority demonstrating that NFPA 921 is a
compulsory or mandatory standard for fire investigators in West Virginia, either today, or in
1995, we find that the petitioner was not denied his right to a fair trial and due process of law
through the admission of the testimony of the State’s experts. See Jackson v. McQuiggin, No.
10-12426, 2012 WL 5410993, at *6 (E.D. Mich. Nov. 6, 2012), aff’d, Jackson v. McQuiggin,
553 F.App’x. 575 (6th Cir. 2014) (finding habeas petitioner’s state court trial was not
fundamentally unfair nor were his due process rights violated by trial court’s decision to admit
testimony of state’s fire expert, citing with approval state appellate court’s conclusion that
“NFPA 921 expressly provides that it contains only nonmandatory provisions; it merely sets
guidelines and recommendations for fire investigations, not requirements.”). For these reasons,
we find no abuse of discretion in the circuit court’s habeas ruling.
42
B. Denial of Evidentiary Habeas Hearing
The petitioner argues that the circuit court abused its discretion in denying his
request for an evidentiary hearing because it has prevented him from demonstrating the
substantial impact of the new fire investigation science on the expert testimony presented at
his trial. The State asserts that the circuit court did take evidence on the petitioner’s newly
discovered evidence through the affidavits of his new experts, and contends that the petitioner
has failed to explain what additional evidence the circuit court needed to address his claim.
As provided in West Virginia Code § 53-4A-7(a) (2008), the decision to hold an
evidentiary hearing is at the discretion of the circuit court:
If the petition, affidavits, exhibits, records and other
documentary evidence attached thereto, or the return or other
pleadings, or the record in the proceedings which resulted in the
conviction and sentence . . . show to the satisfaction of the court
that the petitioner is entitled to no relief, or that the contention or
contentions and grounds (in fact or law) advanced have been
previously and finally adjudicated or waived, the court shall enter
an order denying the relief sought.
Further, we have previously held that
“[a] court having jurisdiction over habeas corpus proceedings may
deny a petition for a writ of habeas corpus without a hearing and
without appointing counsel for the petitioner if the petition,
exhibits, affidavits or other documentary evidence filed therewith
show to such court’s satisfaction that the petitioner is entitled to
no relief.” Syllabus Point 1, Perdue v. Coiner, 156 W.Va. 467,
194 S.E.2d 657 (1973).
Syl. Pt. 2, White v. Haines, 215 W.Va. 698, 601 S.E.2d 18 (2004).
43
The circuit court judge was in the unique position of having also presided over
the petitioner’s eleven-day murder trial. Consequently, he was intimately familiar with the trial
evidence59 when assessing the affidavits of the petitioner’s new experts, which he found had
“thoroughly set forth the nature of the claimed advancements in scientific fire investigation
which constitutes the crux of the Petitioner’s argument,” and which led to the court’s
conclusion that “no testimony or other evidence [was] [] necessary for the Court to rule upon
the application of the relevant law[.]” The circuit court’s decision in this regard is adequately
supported by its thirty-six-page order that recounts the evidence from the petitioner’s criminal
trial, as well as its “careful review” of the parties’ briefs and the new expert affidavits, which
led it to conclude that “the relevant facts of the case . . . have been sufficiently and adequately
developed” for the court to rule as a matter of law. The circuit court’s factual findings and
legal conclusions are certainly sufficient to meet Rule 9(a) of the Rules Governing Post-
Conviction Habeas Corpus Proceedings in West Virginia, which provides that “[i]f the court
determines that an evidentiary hearing is not required, the court shall include in its final order
specific findings of fact and conclusions of law as to why an evidentiary hearing was not
required.”
59
The circuit court expressly stated in its order that it had engaged in a “full, careful,
[and] thorough consideration and review” of the “complete contents of the court file in the
Petitioner’s underlying criminal case[,]” as well as the complete habeas file.
44
Based on our review of the trial and habeas proceedings, and for the reasons set
forth above, we agree that the nature of the claimed advancements in scientific fire
investigation were sufficiently addressed in the parties’ briefs and expert affidavits filed below,
and we find no abuse of discretion in the circuit court’s decision to rule without first holding
an evidentiary hearing.
IV. Conclusion
For the foregoing reasons, we find no reversible error in the circuit court’s
December 24, 2014, order denying the petitioner’s request for habeas corpus relief.
Affirmed.
45
Samuel Anstey v. David Ballard, Warden
Court: West Virginia Supreme Court
Date filed: 2016-06-02
Citations: 237 W. Va. 411, 787 S.E.2d 864
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