Kristine Bunch
~~~~~~~~
Kristine Bunch

(Indiana)
Arson / Murder
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Mail to:
Kristine Bunch
966069
IWP Bldg. 5 2596 Girls School Rd.
Indianapolis IN 46214

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Indiana drops murder case against mother jailed 16 years


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Kristine Bunch, 38, left, with her mother Susan Hubbard, Columbus, right, at her side, steps out of the Decatur County Sheriffs office in Greensburg a free woman after being released following a court appearance on Wednesday, August 22, 2012. Bunch was convicted in 1996 of the murder of her three-year-old son and of arson, but will get a new trial thanks to new forensics evidence and help from the Center on Wrongful Convictions at the Northwestern University School of Law.




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Trenton Bunch (left), 16, greets his mother Kristine Bunch (center) -- her mother Susan Hubbard is at right -- as Bunch, 38, steps out of the Decatur County Sheriffs office in Greensburg a free woman after being released following a court appearance Aug. 22, 2012. Kristine Bunch, the Southern Indiana woman granted a new trial after 16 years in prison for the murder of her 3-year-old son, won’t be tried again — at least not for now. / Charlie Nye / The Star


Kristine Bunch, the Southern Indiana woman granted a new trial after 16 years in prison for the murder of her 3-year-old son, won’t be tried again — at least not for now.



The Decatur County prosecutor on Tuesday dismissed a murder charge against Bunch, 38, of Greensburg.



But the legal ordeal that has consumed nearly half of her life is likely to continue. The charge was dismissed “without prejudice,” which means it can be refiled. And the prosecutor’s motion makes that possibility clear, saying the state may present evidence “to a grand jury at a later date.” “We have not surrendered,” said Doug Brown, Decatur County’s chief deputy prosecutor. “We are still evaluating what (evidence) is available with the intention to go forward. Dismissing the case gives us the time we feel is appropriate to fully investigate what we need going forward.”

The latest legal maneuvers leave a cloud over Bunch nearly 17 years after her son died in a fire she was accused of setting, her attorney Ron Safer said. He said Bunch is not speaking publicly about the case at this time. “She is relieved,” Safer said of her reaction to the dismissal of the murder charge. “But she also has to live with the Sword of Damocles over her head. Hopefully, the prosecutor will rectify that in short order.”


Safer, who works in the Chicago law firm of Schiff Hardin, teamed with the Center for Wrongful Convictions at Northwestern University to champion Bunch’s fight for acquittal. They were not a part of her original defense.


He said he is confident the prosecutors will find no reason to pursue new charges. “There was no evidence of a crime,” he said, “and nothing to witness.” If new charges are filed, Safer said, he and staff from the center will continue to donate their services to the fight to clear Bunch’s name. Bunch was 22 when she was sentenced in 1996 to 60 years in prison after being convicted of intentionally setting fire to a house trailer that killed her young son in 1995.


The Indiana Court of Appeals ordered a new trial for Bunch in March, citing fire toxicology evidence that was not available at the time of her trial in 1996. In a split decision, the court ruled the new “evidence would tend to disprove the State’s theory of the case and is reasonably likely to affect the outcome of a trial on these charges.”


Prosecutors had claimed she used an accelerant to start the fire. But the new team of defense attorneys who took up her case in 2007 showed that if the fire had been set using an accelerant, her son would have died of burns rather than carbon monoxide poisoning, as an autopsy showed. After the Court of Appeals ordered a new trial, a Decatur County judge released Bunch on bond on Aug. 22.

William O. Smith, the former Decatur County prosecutor who handled the initial case against Bunch, said he remains confident about his decision to prosecute her for murder. He said there was other evidence — some that was presented in court, some that was not — that points to her guilt. Smith, who still assists in some prosecution cases, said he is prohibited from commenting about specifics of that evidence. He also questioned the ethics of the Center for Wrongful Convictions’ pursuit of publicity in its push for an acquittal, which included a segment about Bunch’s plight on the ABC television program “20/20.” Safer said he did not think Bunch was a victim of malicious prosecution.

“He didn’t do anything in bad faith,” he said of Smith. “They just got it wrong because they didn’t know at that time what we know now.” As Bunch waits to find out whether the prosecutor will file new charges, Safer said she is trying to restart her life.
Regardless of what the prosecutor decides, he said, Bunch will have to make due on her own. She isn’t due any type of assistance or restitution, Safer explained, to make up for the years she spent in prison. And then there is the loss of her son — and the stigma she still faces from being accused and convicted in his murder. “For her,” Safer said, “the nightmare will never be over because she lost her son and she lost 16 long years, in the prime of her life, in prison.”




http://truthinjustice.org/bunch.htm


By CHARLES WILSON Associated Press

July 13, 2011

INDIANAPOLIS—

A lawyer for an Indiana woman who has spent 15 years in prison after she was convicted of setting the fire that killed her 3-year-old son told a panel of judges Wednesday that new science proves the fire was an accident, not arson.

"Kristine Bunch is innocent. No arson occurred in this case," Ron Safer told three judges on the Indiana Court of Appeals. Safer, who is working pro bono with the Center on Wrongful Convictions at Northwestern University School of Law to get a new trial for Bunch, also told the judges that evidence that was withheld from her 1996 trial undermines the state's case against her.

A Decatur County jury convicted the Greensburg woman of murder and arson in 1996 and she was sentenced to 60 years in prison. The same judge who sentenced her then denied her petition for post-conviction relief based on new evidence filed in 2006.

"The world's experts came in and testified about this," Safer said in an interview earlier this week. "I don't think he opened his mind."

Prosecutors said Bunch poured kerosene in her son's bedroom and the living room of their mobile home and lit it on fire. No formal motive was ever given at the trial, court briefs say. But prosecutors said that Bunch had asked a friend to take custody of her son Tony about a year before the fire so she could "get away from it all" and made inconsistent statements about the fire.

Safer said fire investigation has changed since the mid-1990s, and investigators now have a better idea of how fires work. The burn patterns that were interpreted at the time as signs that kerosene had been poured in the mobile home are now understood to be marks left by flashover, when virtually all combustible material in an enclosed area ignites, according to court briefs.

Safer also said another point that disproves the fire began in the bedroom is the fact that Tony died of smoke inhalation. He said that if the fire had started in his room, Tony would have died of burns before inhaling enough carbon monoxide to be fatal.

"The fire could not have been intentionally set," Safer told the judges. "When the evidence shows that is not how the fire was set, you must grant a new trial," he added.

But the judges seemed more concerned about the withheld evidence.

A lab report from the Bureau of Alcohol, Tobacco and Firearms found no trace of kerosene in the boy's bedroom, despite investigators' contention that part of the fire had been set there, Safer said.

But that report was not admitted into evidence during Bunch's initial trial even though her lawyer had asked prosecutors for any evidence that might tend to clear her. Prosecutors may not have known about the report, but the ATF did, Safer said, and the state should have known about it and released it.

Deputy Attorney General Ian McLean argued largely that the scientific advances claimed by Bunch's attorneys were exaggerated and too inconclusive to change the outcome of the trial. He told judges one defense expert presented some of the same evidence at trial, but experts now were more sophisticated.

"These are ... claims piled upon evidence that can't support it," McLean said.

McLean also pointed out inconsistencies in Bunch's story, inconsistencies that Safer said likely were caused by confusion from carbon monoxide poisoning. McLean also repeated prosecutors' claims that Bunch had blocked the open doorway of her son's room with a chair, but Safer claimed photo evidence showed the chair was actually standing against a wall that had burned.

Court briefs filed by Bunch's attorneys also contend that investigators ignored key evidence, including a history of electrical problems in the home, and the fact that a previous occupant had used a kerosene heater in the living room, which could have accounted for positive test results there.

Safer said the case wouldn't stop even if the Court of Appeals sides with the state.

"We'll go to the Indiana Supreme Court. If we don't get the right ruling there, we'll take it to the federal court," Safer said in an interview. "She's innocent. We're not going to let this rest."
Appeals court to hear arguments for new trial
October 21, 2009



http://greensburgdailynews.com/local/x546189861/The-History-Behind-The-Case



The History Behind The Case

Joe Hornaday



On June 30, 1995, a quick-burning fire erupted in the trailer at 999 S. Lake McCoy Drive, lot 60 of the Creswood Resort. The home had two occupants.





Kristine M. Bunch, then 21, survived the fire but her 3-year-old son Anthony Maxwell Bunch perished.





The next day, fire investigators from the Indiana State Fire Marshal’s Office, the Greensburg Fire Department and the Decatur County Sheriff’s Department begin an investigation into the fire that killed Anthony Bunch. Suspicions begin to grow when an accelerant is found.





On July 6, 1995, a probable cause affidavit is issued that explains that an accelerant was used in the blaze and that a gas can was found about three feet from the front door of the mobile home. Investigators determined that the accelerant covered a large area of the living room and proceeded directly into Anthony Bunch’s bedroom where he was sleeping. Kristine M. Bunch was given a polygraph test and failed. When asked why she started the fire by the polygraph operator, Bunch allegedly responded “I don’t know.”



On July 7, 1995, the case moved forward. A Nov. 28, 1995 trial date is set for Kristine M. Bunch following charges of felony murder and arson. On Oct. 12, 1995, Kristine M. Bunch is released from jail on a $50,000 bond. Her bond had previously been denied by the Decatur County Circuit Court Judge John Westhafer. She was deemed not to be a flight risk and released





On Feb. 26, 1996, the jury selection process began for the murder and arson trial of Kristine M. Bunch and opening arguments took place. The defense claimed then that the investigation was done “in haste,” that potential accidental causes were not considered and that the prosecution could not prove a motive. Prosecuting attorney William O. Smith contended that a motive was not required and that Bunch attempted to mislead investigators several times.





Two days later, the state of Indiana rested its case against Kristine M. Bunch. Defense attorney Frank I. Hamilton then began calling witnesses and disputing the origins of the fire.





On March 4, 1996, both the prosecutor and the defense attorney finish their final arguments and the final verdict is left up to the jury. When the jurors made their decision, the announcement was made in the courtroom that Kristine M. Bunch had been found guilty. The 12 jurors recommended a total of 60 years in prison. The prosecuting attorney had requested life without parole that would come from a recommendation for the prison time that the two charges would create be served consecutively. A sentence of 50 years for the arson and a sentence of 60 years for the murder was examined by the jury.







On April 1, 1996, Kristine M. Bunch, now a convicted murderer, is given 60 years total for the death of her son, Anthony M. Bunch. Both convictions create a sentence that is to be served concurrently, or simultaneously. With good behavior, Bunch is expected to be available for parole in 30 years, or in 2026.








http://ftpcontent.worldnow.com/wthr/PDF/bunchstatebrief.pdf
KRISTINE BUNCH,

IN THE COURT OF APPEALS OF INDIANA

CAUSE NO. 16A05-1007-PC-439

) Appeal from the Decatur

) Circuit Court APPELLANT (PETITIONER BELOW), )

VS.

) ) Cause No. 16C01-0612-PC-225 )

STATE OF INDIANA, ) ) Hon. John A. Westhafer, Judge

APPELLEE (RESPONDENT BELOW). )

BRIEF OF APPELLEE STATEMENT OF THE ISSUES

I. Whether the PCR court clearly erred when it found that Bunch’s alleged newly-discovered evidence did not justify a new trial.

II. Whether the PCR court clearly erred when it found that Bunch’s alleged due process violation did not justify a new trial.

III. Whether the PCR court clearly erred when it found that Bunch had failed to show that she received ineffective assistance from trial counsel.

STATEMENT OF THE CASE

On July 5, 1995, the State charged Appellant, Kristine Bunch (“Bunch”) with felony murder1 and arson as class A felony2 (Trial Tr. 8-9, 31).3 On October 2, 1995, the State filed

1 Ind. Code § 35-42-1-1(2) (West PREMISE 1995). Bunch’s brief contends that she was convicted of “murder” (Brief of Appellant, 1-2). Although the charging information names corresponding count as “murder,” the allegations of the charge and the statutory cite referred to by the information allege felony murder, namely killing another while committing or attempting to commit arson (Trial Tr. 8, 31, 1387-88). See Bunch v. State, 697 N.E.2d 1255, 1256 & n.1 (Ind. 1998) (explaining offenses for which Bunch was convicted). The distinction is significant because it explains our Supreme Court’s decision to vacate Bunch’s arson conviction. Id. at 1256-57.

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an additional information alleging aggravating circumstances for felony murder and requesting the imposition of a life sentence without parole (Trial Tr. 166). Bunch was tried before a jury between February 26, 1996, and March 4, 1996, and found guilty of both charges (Trial Tr. 293-94, 1442-44). The jury recommend that Bunch not be sentenced to life imprisonment without parole and that she be sentenced to a fixed number of years subject to the possibility of parole (Trial Tr. 303, 1446). A presentence report was prepared, and on April 1, 1996, the trial court “merged” Bunch’s arson conviction into her felony murder conviction and sentenced Bunch to “merged” and concurrent sentences of sixty years for felony murder and fifty years for arson (Trial Tr. 309, 324-26, 1459-61).

Bunch appealed to the Indiana Supreme Court (Trial Tr. 1). On June 9, 1998, our Supreme Court found that Bunch’s conviction and sentence for arson could not be “merged,” but must instead be vacated because arson was the felony underlying Bunch’s felony murder conviction. Bunch v. State, 697 N.E.2d 1255, 1256-57 (Ind. 1998), reh’g. denied. Our Supreme Court affirmed Bunch’s conviction and sentence for felony murder in all respects. Id.

On December 22, 2006, Bunch filed a petition for post-conviction relief (“PCR”) (PCR App. 57). The State filed an answer on January 23, 2007 (PCR App. 67). Bunch filed an amended PCR petition on December 1, 2008 (PCR App. 76). The PCR court heard evidence on Bunch’s petition on October 20, 2009 and October 21, 2009 (PCR App. 53). The parties submitted supplemental briefs and proposed findings of fact and conclusions of

2 Ind. Code § 35-43-1-1(a)(2) (West PREMISE 1995)

3 Throughout this brief, “Trial” will refer to the record of Bunch’s original trial and “PCR” will refer to the record of Bunch’s post-conviction proceedings. Thus, for example, “Trial Tr. 3" refers to page three of the trial record, and “PCR Petitioner’s Exhibit 5”refers to Petitioner’s exhibit five in the PCR hearing. The record of Bunch’s original trial was admitted as an exhibit in the hearing on her post-conviction relief petition (PCR Tr. 6, PCR Petitioner’s Exhibit 100).

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law (PCR App. 54-55, 684, 773, 885). On June 8, 2010, the PCR court entered findings and conclusions denying Bunch’s petition (PCR App. 1, 55).

Bunch filed a notice of appeal on July 8, 2010 (PCR App. 55, 934). The notice of completion of the clerk’s record was issued on July 20, 2010 (PCR App. 55, 936). On September 23, 2010, this Court granted Bunch leave to file an oversize brief (Docket). The notice of completion of the transcript was issued on October 5, 2010 (PCR App. 55, 939). On October 15, 2010, this Court granted Bunch’s application for an extension of time until December 1, 2010, to file her brief (Docket). On November 15, 2010 and December 17, 2010, this Court granted applications for temporary admission by counsel and ordered an amicus brief filed by the Innocence Project to be filed as of December 17, 2010 (Docket). On January 5, 2011, this Court granted the State’s application for an extension of time to and including February 4, 2011 (Docket). On February 4, 2011, the State filed a second request for an extension of time due to inclement weather (Docket). On February 9, 2011, this Court granted the State until February 14, 2011 to file its brief (Docket).

STATEMENT OF FACTS

The State’s trial case relied on evidence that in June, 1995, Bunch lived with her son at the Crestwood mobile home park in Decatur County near Greensburg (Trial Tr. 571, 573, 614, 625). The mobile home belonged to Bunch’s mother, Susan Hubbard (Trial Tr. 573). Hubbard was moving to Columbus, Indiana, but returned to the mobile home almost every day during the month (Trial Tr. 572). Bunch’s brother, Michael, also lived in the mobile home until Monday, June 26, 1995, when Michael became involved in an argument with Hubbard and Bunch over a family vehicle (Trial Tr. 581, 1040). With the help of Bunch’s father, Michael began moving his things out of the mobile home that day (Trial Tr. 1040- 41). Bunch was twenty one years old (Trial Tr. 571). Bunch had a son, Tony, who was four years old (Trial Tr. 571, 775). Neighbors and relatives agreed that Tony was well-behaved, however, he was afraid of the dark and did not like to be left alone at any time (Trial Tr. 576-77, 732, 1055). Because of this Bunch or, occasionally, a friend or relative, always

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slept with Tony (Trial Tr. 574-76, 577, 705, 724, 732, 789-90). Tony was three feet, two inches tall (Trial Tr. 783).

The mobile home was a rectangle whose narrow ends faced north and south (Trial Defendant’s Exhibit M; PCR Tr. 321, 460; PCR State’s Exhibit B; PCR Petitioner’s Exhibit Demonstrative 1).4 The mobile home’s front door was on the west side and opened onto the kitchen (Trial Defendant’s Exhibit M; PCR Tr. 321, 460; PCR State’s Exhibit B; PCR Petitioner’s Exhibit Demonstrative 1). If one stood in the front doorway and looked to one’s left, one could see a wall and a hallway that led north, past a bathroom on the west side of the mobile home, to a large bedroom on the mobile home’s north side (Trial Defendant’s Exhibit M; PCR Tr. 321, 460; PCR State’s Exhibit B; PCR Petitioner’s Exhibit Demonstrative 1). From the same vantage point, one could look right and see the mobile home’s living room as well as a doorway that led to the bedroom at the south end of the mobile home (Trial Defendant’s Exhibit M; PCR Tr. 321, 460; PCR State’s Exhibit B; PCR Petitioner’s Exhibit Demonstrative 1). The south bedroom had only one exit, the doorway connecting it to the living room (Trial Defendant’s Exhibit M; PCR Tr. 321, 460; PCR State’s Exhibit B; PCR Petitioner’s Exhibit Demonstrative 1). A heavy reclining chair with a large swivel base normally sat in the living room, a short distance from the entrance to the south bedroom (Trial Tr. 1076). It was too heavy to move by accident (Trial Tr. 1078).

The kitchen floor was surfaced with linoleum tiles (Trial Tr. 574, 825). The south bedroom’s floor was also covered in linoleum (Trial Tr. 574, 825). The living room’s floor was carpeted when Hubbard originally moved into the mobile home (Trial Tr. 575). That carpet was completely replaced in 1991 or 1992 with padding and a carpet purchased from a store in Greensburg5 (Trial Tr. 575). Hubbard testified that she and her previous husband

4 Diagrams of the mobile home were admitted into evidence during Bunch’s trial, but are not in the direct appeal record (Trial Tr. 592; Trial State’s Exhibits D1-D4).

5 Susan Hubbard testified at trial that she had been married to and divorced from Roy Hubbard, Arthur Bunch and David Hanna (Trial Tr. 570-72, 573). Hubbard also stated that Arthur Bunch was the father of Kristine Bunch and Michael Bunch, who were born in 1973

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Roy Hubbard had taken up the old carpet, which was not padded, and scraped up as much of the glue holding it to the wood floor as possible before installing the new pad and carpet (Trial Tr. 584-85). In June, 1995, the mobile home was equipped with a fire extinguisher and at least two smoke detectors (Trial Tr. 575-76). Susan Hubbard recalled that a special effort was made to monitor the condition of the fire extinguisher (Trial Tr. 576). Some time before Friday, June 30, 1995, the door between the south bedroom and living room had been removed from its hinges, and the doorway was unobstructed (Trial Tr. 580, 611, 612-13). In early June, Bunch had swept and shampooed the living room carpet (Trial Tr. 577). An LP gas tank was located outside the mobile home to provide gas (Trial Tr. 787, 941)

Tom Claxton’s mobile home was next to Bunch’s mobile home (Trial Tr. 593-95). Claxton was a close friend of Bunch and Tony (Trial Tr. 593-95). Claxton recalled that he was awaked that morning by his telephone, which rang several times (Trial Tr. 598). He answered the telephone but found that no one was on the other end of the line (Trial Tr. 598). Claxton was beginning to lay down again when he heard someone shouting his name (Trial Tr. 598). He looked out a window and saw Bunch running toward his mobile home, shouting his name (Trial Tr. 598). Bunch told Claxton that her mobile home was on fire and that her son, Tony was inside (Trial Tr. 599).

Bunch and Claxton went to Bunch’s mobile home (Trial Tr. 606-07). Claxton saw another of Bunch’s neighbors, Rob Parkinson, on the incline of a hill that separated Parkinson’s mobile home from Bunch’s (Trial Tr. 606-07). Claxton also saw a third

and 1977, respectively (Trial Tr. 571). Hubbard stated that after her divorce from Bunch, she married David Hannah, whom she also divorced in 1987 (Trial Tr. 588). From that divorce Hubbard acquired the mobile home and continued to make payments on it (Trial Tr. 572). Susan married Roy Hubbard in 1988 and acquired the mobile home again during their 1995 divorce (Trial Tr. 572-74, 588). Hubbard was asked when the carpet had been replaced and she answered, “Four years” (Trial Tr. 575). Hubbard did not date this period and the State can find no reference that would date it (Trial Tr. 575). If Hubbard meant four years after her marriage to Roy Hubbard, or four years before Bunch’s 1996 trial, the carpet was replaced in 1992. If Hubbard meant four years before she acquired the mobile home in her divorce from Hubbard, the carpet was replaced in 1991 (Trial Tr. 575).

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neighbor, Alice Shafer, standing nearby (Trial Tr. 606-07). Claxton shouted at Parkinson to call 911 (Trial Tr. 606-07). Claxton saw Parkinson move down the hill toward Bunch’s mobile home (Trial Tr. 606-07). Claxton and Bunch attempted to drag hoses to the burning mobile home and then tried to break windows on the west side of the mobile home (Trial Tr. 599-600, 603).

Parkinson had awakened to the sound of breaking glass and a scream (Trial Tr. 615). Parkinson looked out the window of his mobile home and saw Bunch and Claxton striking at windows on Bunch’s mobile home (Trial Tr. 615). Parkinson testified that he also saw “smoke and a small amount of flames coming out of that back corner of [Bunch’s] mobile home” (Trial Tr. 615). Parkinson told his wife to call 911 and ran to the front door of Bunch’s mobile home (Trial Tr. 616, 1092). Parkinson found Bunch standing by the mobile home’s open front door and, when he asked Bunch if anyone else was in the mobile home, “She told me that there as a door, that the door was locked,” and that “her boy was inside, he was locked in. That she couldn’t get to him” (Trial Tr. 616-17). Parkinson looked inside the open front door to his right, into the mobile home’s living room, and saw “a large amount of black smoke” and flames that were “about six or seven inches, or maybe a foot tall . . . just barely circling around the room” (Trial Tr. 616; Trial State’s Exhibits D1, D2, D3 & D4). Parkinson explained that, because Bunch had told him her son was locked behind a door, “I assumed that there was a doorway there in my mind or whatever there was something that I seen, I considered it a door. I didn’t go back in the house because I felt if I opened that door the smoke would blow out and the flames would get too high” (Trial Tr. 616-17). Parkinson left Bunch’s mobile home and returned to his own mobile home, where he dressed (Trial Tr. 617). Parkinson recalled that when he next looked at Bunch’s mobile home, “they had busted the windows out in the front and on the side and it [the fire] had taken off in a . . . rush. You could hear it roaring” (Trial Tr. 617). Claxton also recalled that the fire accelerated when the windows were broken (Trial Tr. 599-600).

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Shafer called the Greensburg Fire Department (“GFD”) at 6:30 a.m. to report the fire (Trial Tr. 614, 626; State’s Exhibit JM1). At 6:31 a.m., two GFD fire trucks and four firefighters were dispatched to the fire (Trial Tr. 626; State’s Trial Exhibit JM1). While they were en route, the firefighters received another report that a child was inside the mobile home (Trial Tr. 626; State’s Trial Exhibit JM1). GFD Captain Kenneth Ramer, who was among the responders, testified that he saw flames before the trucks arrived at the mobile home (Trial Tr. 627). The fire engines arrived at the mobile home at 6:41 a.m. (State’s Trial Exhibit JM1). When they arrived, flames were rising thirty feet into the air from the south end of the mobile home, (Trial Tr. 628). The firefighters made a visual inspection of the mobile home, and Captain Ramer noted that the front door was open and several windows appeared to have been broken out (Trial Tr. 628, 630-31).

Ramer, Gommell and GFD firefighter Ron Clark deployed hoses from the trucks and began to place water on the south end of the mobile home where they believed the child was located (Trial Tr. 644-46, 655-56). As Clark began to don rescue gear that would allow him to enter the burning mobile home, he saw a woman wearing a nightgown standing in the vicinity of the mobile home (Trial Tr. 656). Clark shouted at her, and she told him the child was in the south end of the mobile home (Trial Tr. 656). Although normal practice was to wait for backup before entering a burning structure, Clark told the other firefighters that he was entering the mobile home immediately (Trial Tr. 644, 656, 658). The other men used their hoses to put water on the south end of the mobile home to help Clark (Trial Tr. 644- 46). Slinging a hose over his shoulder, Clark entered the mobile home’s open front door on his hands and knees (Trial Tr. 658-59).

Clark used his hose to suppress the fire in front of him and cool his path toward the south end of the mobile home (Trial Tr. 659, 660). He noticed that the spray from his hose barely seemed to put out the flames before they reappeared (Trial Tr. 660). After some time, Clark bumped into an object which he later determined to be a loveseat (Trial Tr. 659).

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Clark changed direction and bypassed it (Trial Tr. 659). Clark encountered an obstacle that blocked his progress into the south bedroom (Trial Tr. 660-61). He recalled:

[T]here was some kind of an obstruction. At that time, I wasn’t sure, I couldn’t tell. I felt around trying to remove it. And it didn’t move easily, I, as I was down, I got up and tried to rear up on one foot to help maybe push it over or get on top of it. And go ahead and crawl over and when I did my right foot went through the floor. Once I went through the floor, I yanked it back out real quick, patted it down, and it seemed to quit. I then proceeded over the obstruction.

(Trial Tr. 661). Clark climbed over the obstacle, which appeared to be recliner or swivel chair, and entered the mobile home’s south bedroom (Trial Tr. 661, 669). He searched through debris and pulled back bed springs to find what appeared to be a small, stiff body between a wall and the bed (Trial Tr. 663). Clark thought it might be a doll until he felt for genitalia and realized that he had found the body of small boy (Trial Tr. 663-64).

Clark clutched the boy’s body to his chest and retraced his path, using his hose as a guide to the front door (Trial Tr. 663-64). Firefighter Gommell had donned his own rescue gear and gone to the front door when Clark emerged and told Gommell to get a blanket (Trial Tr. 647, 664). When Gommell returned, Clark wrapped the boy’s body in the blanket and gave it to emergency medical personnel who had responded to the fire (Trial Tr. 647). Clark and Gommell then re-entered the mobile home and continued to extinguish the fire (Trial Tr. 647-49, 664-65).

Tony’s body was transported to Indiana University Medical Center in Indianapolis, where an autopsy was performed (Trial Tr. 775; Trial State’s Exhibit JM1). The autopsy determined that Tony died from smoke inhalation (Trial Tr. 779-80). His body had been “completely charred” and a forensic pathologist found, “soot inside [his] mouth and nose and very dense, black, articulate soot down inside the larynx, the trachea, and the lungs. The soot was mixed with a very thick, tenacious mucous and was obstructing the airway” (Trial

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Tr. 780). Dr. Dean Hawley, the forensic pathologist described tests performed on Tony’s blood:

The blood carbon monoxide content is a measurement that we do on a laboratory instrument that analyzes the oxygen carrying capability of the blood. Carbon monoxide binds with hemoglobin in your red blood cells. It displaces oxygen so that the hemoglobin cannot carry oxygen. In making a carbon monoxide measurement, what we measure is the total hemoglobin and the fraction of the hemoglobin which is bound to the carbon monoxide . . . in other words, we are measuring how much decrease there has been in the oxygen carrying capacity in the blood. Anthony Bunch’s blood measured a carbon monoxide or carboxy hemoglobin saturation of eighty percent. Meaning eighty percent of the hemoglobin in the body is bound to carbon monoxide. Only twenty percent being available to carry oxygen in the blood.

(Trial Tr. 781-82). These tests did not determine the speed with which Tony’s blood acquired its saturation of carboxy hemoglobin, which depended on a number of external variables including the concentration of carbon monoxide in the air he breathed and his breathing rate (Trial Tr. 782). The forensic pathologist concluded, “We’re probably looking at an event that happened over a period of minutes, in terms of the absorption of carbon monoxide” (Trial Tr. 782).

Bunch was transported to the Decatur County Memorial Hospital (Trial Tr. 768). Dr. Michael Arnett examined Bunch (Trial Tr. 768). He noticed that Bunch had “some singing [sic] of the hairs around her forehead” and “a little blister burn, what we call a second degree burn” on the tip of her nose (Trial Tr. 768). Bunch’s face and forearms also displayed a redness equivalent to a sunburn (Trial Tr. 772). Bunch’s lungs sounded normal “for a smoker her age,” however Bunch produced sooty sputum at Arnett’s request (Trial Tr. 769). Dr. Arnett found that the small blister on the tip of Bunch’s noise was consistent with contact with flame for “[j]ust an instant” (Trial Tr. 772). Bunch was kept at the hospital for several hours and then released (Trial Tr. 700, 1073, 1075).

Later on the morning of Friday, June 30, 1995, after the fire had been extinguished, the scene was visited by Jim Skaggs and Brian Frank, field investigators for the Indiana

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State Fire Marshal (Trial Tr. 814-15). They employed a device that detected the presence of hydrocarbons in the fire scene and received an indication that hydrocarbons were present (Trial Tr. 836). A canine was also shown into the fire scene and alerted to the presence of hydrocarbons (Trial Tr. 837-838). Frank saw what he called “V patterns” along the west side of the mobile home towards the south bedroom (Trial Tr. 821; State’s Trial Exhibit P3). Similar “V” patterns were seen inside the remains of the south bedroom (Trial Tr. 825). Because “V” patterns appeared on horizontal surfaces, Frank believed the patterns indicated sources and areas of combustion because, as he said, “fire burns upward and outward, not down” (Trial Tr. 829).

Frank also found what he considered to be a burn pattern “across the living room floor toward the doorway and actually into the doorway of the south bedroom” (Trial Tr. 823-25, 830-31). Frank stated that the pattern was a characteristic of the use of a liquid accelerant because, “Fire burns up and out unless something draws it down into the flooring” (Trial Tr. 834-35). Because of these observations and forensic testing, Frank said that he believed:

There were two separate fires. One was in the south bedroom, along the south wall. That was caused by the liquid accelerant being present. The second fire originated at the doorway, the area of the doorway of the south bedroom into the living room. And there was a liquid accelerant poured across the floor of the living room that went to the front door of the mobile home.

(Trial Tr. 831, 847). Two pieces of aluminum or aluminum alloy were recovered from the mobile home, the foot plate of the front door and a tack strip running along the border between the south bedroom’s linoleum and the living room’s carpet (Trial Tr. 803, 1349-50; Trial State’s Exhibits R1 & R2). After examining melted areas on the pieces, Frank came to believe that they had been caused by higher temperatures or longer fire exposure, or both, also indicating that a liquid accelerant had been poured over or around them (Trial Tr. 1349- 50). Frank also found a protected area in the doorway to the south bedroom (Trial Tr. 974).

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He explained that during a fire a protected area forms when an object, such as the base of a chair, impedes burning of a surface or another object (Tr. 819).

On the morning of the fire, Frank took eight samples from the mobile home’s floor in areas indicated by the investigator’s device and the canine as positive for hydrocarbons (Tr. 831, 837, 870). These included pieces of wood, a piece of wood, material from the bed in the south bedroom, and carpet and carpet padding from the living room (Trial Tr. 837, 870, 899; Trial State’s Exhibit ATF1). Frank placed these samples into sealed cans itemized as C2 through C10 (Trial Tr. 831, 837, 870, 898). Frank also obtained the night gown Bunch had worn outside the mobile home during the fire from police (Trial Tr. 744, 831, 833, 937). Police recovered the nightgown at the local hospital (Trial Tr. 700, 744, 937). Frank placed the nightgown into a sealed can itemized as C1 (Trial Tr. 831, 833). Witnesses who saw the nightgown on the day of the fire noted that it appeared to have been exposed to smoke, but that it had not been burned (Trial Tr. 787-88, 927). The floor samples and the nightgown were sent to the Department of Justice, Bureau of Alcohol, Tobacco and Firearms (“ATF”) for analysis (Trial Tr. 832, 891).

Bunch was interviewed at Decatur County Memorial Hospital at 1:50 p.m. on the afternoon of the fire by Indiana State Police Trooper Peter Tressler (Trial Tr. 698-700; State’s Trial Exhibit TR-1). Tressler asked Bunch to relate what had happened (Trial Tr. 700). Bunch said that she and Tony had gone to sleep on the couch in the living room and that she was awakened when she heard Tony say “Mommy” (Trial Tr. 701, 705). Bunch said that she went to the south bedroom and saw flames at the bedroom doorway (Trial State’s Exhibit TR-1). Bunch said that she was unable to see Tony because of the smoke, but she returned to the living room and retrieved a blanket, which she threw over the fire (Trial State’s Exhibit TR-1). The blanket caught fire, and so Bunch began to beat the flames with a pillow, which caused them to increase (Trial State’s Exhibit TR-1). By that time, Bunch said, the flames were high enough that she could not enter the south bedroom (Trial State’s Exhibit TR-1).

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Later in the interview, Tressler asked Bunch to go over what had happened again (Trial Tr. 700). Bunch told Tressler that when she awoke she did not see any smoke, and she walked to the south bedroom (Trial State’s Exhibit TR-2). She saw flames in front of one of the windows, and Tony was on the opposite side of the bed saying that it was hot (Trial State’s Exhibit TR-2). Bunch said she replied, “Yeah, it’s hot” and threw a blanket on the flames (Trial State’s Exhibit TR-2). Bunch then said she was hitting the flames, but was eventually unable to return to the bedroom (Trial State’s Exhibit TR-2). Bunch said that at that point she left the mobile home, went to the window and broke it, shouting for Tony (Trial State’s Exhibit TR-2).

Tressler asked Bunch to go over what had happened a third time (Trial Tr. 700). Bunch told Tressler that she saw no smoke when she woke up and went into the south bedroom where she saw a flame on the floor beside the bed (Trial State’s Exhibit TR-3). Bunch said that she saw flames on the linoleum floor and that, “I ran over here; grabbed the blanket; and brought it back and laid it across that flame” (Trial State’s Exhibit TR-3, TR-4). Bunch said that she left the bedroom a second time to retrieve a pillow, which she used to beat at the flame (Trial State’s Exhibit TR-4). Bunch claimed that she thought the room had filled with gas (Trial State’s Exhibit TR-3). She told Tressler that she left the bedroom a third time to retrieve the fire extinguisher, “And by that time the flames were already out the door” (Trial State’s Exhibit TR-3).

On the same day, June 30, 1995, Bunch was interviewed a second time at 10:00 p.m. at the Decatur County Sheriff’s Department (Trial Tr. 700). Bunch said that she and Tony had gone to sleep in the south bedroom, and that she heard Tony laugh and say “Mommy” (Trial Tr. 732; Trial State’s Exhibit TR-5). Bunch explained that the linoleum was burning (Trial State’s Exhibit TR-5). Bunch said she left the bedroom to retrieve a blanket, which she put on top of the fire she saw on the linoleum floor (Trial State’s Exhibit TR-5). She said the blanket “[m]elted” and so she left the south bedroom again to retrieve a pillow, which she used to beat the fire (Trial State’s Exhibit TR-5). At this point, Bunch claimed,

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the fire grew throughout the room and she ran to retrieve the fire extinguisher (Trial State’s Exhibit TR-5). Bunch said that the fire prevented her from getting to Tony (Trial State’s Exhibit TR-5).

On Sunday, July 2, 1995, Bunch and Hubbard were at the mobile home park to talk with neighbors and thank them for their support (Trial Tr. 789). Among the people they spoke to was Connie Land (Trial Tr. 789). Land recalled that Bunch gave an account of how the fire had started, as follows:

We were, we were just standing there talking and she started to say how the fire, how the fire started, that she was, she was asleep. She was asleep on the couch and she went to say that her baby had always slept with her from the day that he was born and somebody had come into the trailer, had sprinkled her with, I’m not sure if she said it was either kerosene or gasoline, I’m not really sure, but had sprinkled her with this, had sprinkled the baby and whoever that it was had to . . . . had to have known Tony because Tony wouldn’t have just got up off the couch and just went with anybody. And then she said there at one point, at one point that she knows that Tony wasn’t on the couch with her and that she could hear Tony in his bedroom, the door was shut, she could hear Tony in his bedroom laughing.

(Trial Tr. 789-90). Land also recalled another, subsequent conversation with Bunch during which Bunch said she had awoken to find that “the bedroom door was locked” and that she had managed to open the door and tried to put out the fire with a blanket (Trial Tr. 790). Bunch said that when she found she could not extinguish the fire, she ran to Claxton’s mobile home (Trial Tr. 790).

Bunch was interviewed for a third time on July 4, 1995, by Trooper Tressler and the Decatur County Sheriff (Trial Tr. 700, 942). Bunch was asked why she did not retrieve Tony while she was in the south bedroom (Trial Tr. 945; Trial State’s Exhibit TR-6). Bunch claimed that her nightgown had caught fire (Trial Tr. 945; Trial State’s Exhibit TR-6). Bunch was shown a diagram of the fire scene prepared by the State Fire Marshall’s Office showing the location of items inside the mobile home after the fire had been extinguished (Trial Tr. 756). The diagram showed that a chair was placed in the doorway to the south

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bedroom (Trial Tr. 757). Bunch, who was accompanied during the interview by Hubbard, claimed that the chair should not have been there and marked the diagram accordingly (Trial Tr. 756-57).

The samples taken by Frank were analyzed by William Kinnard, a forensic chemist with the ATF (Trial Tr. 889, 189-93). Kinnard extracted samples from the items and tested them in a gas chromatograph (Trial Tr. 892-93). The chromatograph revealed the carbon numbers of compounds in the samples which allowed a determination of the substance in the sample (Trial Tr. 981-93). Samples C2 and C3, which had been taken from the floor near the front door entrance and the carpet at the threshold of the living room, produced inconclusive results when tested for petroleum-based substance (Trial Tr. 901; Trial State’s Exhibit ATF 1). Samples C4, C5, C6, and C10, which were taken from the living room floor, tested positive for the presence of heavy petroleum distillates (“HPD”) (Trial Tr. 901; Trial State’s Exhibit ATF 1). Samples C7 and C9, which had been taken from the living room floor at the entrance to the south bedroom and from the bed in the bedroom, were inconclusive for the presence of HPD (Trial Tr. 901; Trial State’s Exhibit ATF 1). Sample C8, which had been taken from the living room, tested positive for the presence of petroleum distillates (Trial Tr. 901; Trial State’s Exhibit ATF 1).6

Kinnard explained that HPD is distinguished from medium petroleum distillates (“MPD”) and light petroleum distillates (“LPD”) by the range of their boiling temperatures (Trial Tr. 895). Kinnard explained that, “Examples of a heavy petroleum distillate includes kerosene, number one fuel oil, jet [and] aviation fuel, solvents or some insecticides, diesel

6 The State relies, in part, on the diagram admitted during the PCR hearing as Petitioner’s Demonstrative Exhibit 1, attached as Addendum 2 to the Brief of Appellant, to confirm the location of these samples. It should be noted, however, that the diagram appears to indicate that item C7 is from the linoleum-surfaced floor of the south bedroom (PCR Petitioner’s Demonstrative Exhibit 1, Addendum 2). Item C7 was identified at trial as a “[q]uart can containing wood, carpet, and carpet padding (Trial State’s Exhibit ATF 1). As noted, the living room, and not the south bedroom, had carpet and padding (Trial Tr. 575, 585).

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fuel, number two fuel oil and home heating oil, and some charcoal starters” (Trial Tr. 895). Kinnard was cross-examined by Bunch’s counsel regarding the carbon-number readings obtained for samples C6 and C8, which were not the same as the carbon-number readings obtained for the other samples which tested positive for HPD (Trial Tr. 905-06).7 Kinnard replied that the carbon numbers for samples C6 and C8 were on the low end for an acceptable identification as HPD, and it was possible that evaporation had affected those two samples or that they were not the same substance as the other positive samples (Trial Tr. 906-07).

Also on cross-examination, Kinnard testified that he was familiar with ASTME 1387, a publication setting forth practices for testing extracts for flammable residue using a gas chromatograph (Trial Tr. 914). Bunch admitted a copy of ASTME 1387 into evidence (Trial Tr. 914-15; Trial Defendant’s Exhibit I). Bunch’s counsel directed Kinnard’s attention to a table in the publication listing the “peak spread” based on N-Alkane carbon numbers for various classes of petroleum distillates (Trial Tr. 919). The table classifies kerosene with a “peak spread” of carbon numbers nine through sixteen, separately from HPD, which is listed as having a “peak spread” of carbon numbers ten through twenty three (TrialTr. 919).

Bunch’s counsel asked Kinnard if he agreed with this classification (Trial Tr. 919). Kinnard said that he did not agree with it, because, “I lump kerosene into a heavy petroleum distillate” due to variables which may appear in samples due to evaporation or other causes (Trial Tr. 919). Kinnard admitted that the “peak spread” of carbon numbers given for kerosene in ASTME 1387 are consistent with the positive results Kinnard obtained for

7 Kinnard’s results showed that the carbon numbers for samples C4, C5, and C10 were 10, 11, 12, 13, 15, 16 and 17 (Trial Tr. 905). The carbon numbers for sample C6, however, were 12, 13, 14, 15, 16 and 17 (Trial Tr. 905). The carbon numbers for sample C8 were 12, 13, 14, 15, 16 and 17 (Trial Tr. 905).

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samples C4, C5, C6, C8 and C10, and that his statements regarding the presence of HPD in all samples were made because Kinnard considered kerosene an HPD (Trial Tr. 919).

Testimony given before Kinnard’s indicated that a kerosene heater had been used in the mobile home’s living room prior to 1988 (Trial Tr. 577, 583). The heater was kept filled with kerosene taken by a siphon from a five-gallon drum, and sometimes the heater was filled inside the mobile home (Trial Tr. 583). Hubbard testified that it was very likely that kerosene had spilled on the living room floor (Trial Tr. 583). Kinnard also testified that kerosene which had been spilled on the carpet four or five weeks before the fire would not have produced the test results he found (Trial Tr. 924). During cross-examination, Kinnard agreed that if a flammable liquid had passed through the carpet and padding and into the wood subfloor, traces would remain in the floor for a longer period of time (Trial Tr. 925).

Bunch’s case relied on Bradley Thatcher, an investigator with Investigative Technologies in Indianapolis, and Tom Hulse, a fire and explosion expert who had worked for insurance agencies and attorneys at approximately 3,500 fire scenes (Trial Tr. 1100-01). Hulse was board certified as a fire investigator by the National Association of Fire Investigators Board, and also certified by the American College of Forensic Examiners (Trial Tr. 1103). Hulse had published in the field, and used ASTME 1387 and guidelines published by the National Fire Protection Association (“NFPA”) in his work; he was a member of ASTME and the NFPA (Trial Tr. 1105). Thatcher and Hulse made two trips to the mobile home, which had been kept in place after the fire, during August, 1995 (Trial Tr. 1106-08). They took samples of materials, including electrical wiring, interviewed Skaggs, and examined the materials and reports of the State Fire Marshal and the GFD (Trial Tr. 984, 1113).

Hulse testified that accepted practices spelled out in NFPA guidelines required investigators to examine all innocent explanations for a fire, and to examine the possibility of arson only after innocent causes could be eliminated by the evidence (Trial Tr. 1131). Bunch had called her brother, Michael, to testify that the mobile home experienced electrical

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problems that included a burned-out electrical outlet in the south bedroom, brightening and dimming of lights during normal electricity use, accelerated burning-out of light bulbs, and thrown circuit breakers (Trial Tr. 1042-44). Hulse testified that defective wiring may produce improper grounding and “single phasing” of current within an electrical system (Trial Tr. 1146).

Hulse tried to trace and recreate the mobile home’s electrical system without complete success, but he had located wiring in the south bedroom which he believed showed signs that its insulation had been broken and that it had produced an exposed electrical arc (Trial Tr. 1131-33, 1134-36, 1143-44; Trial Defendant’s Exhibit YY, ZZ & EEE). Hulse also gave his opinion that the heaviest burning in the mobile home had occurred in or near the ceiling, causing ceiling tiles to burn and drop onto the floor, perhaps causing Bunch to state that the fire had begun on the floor (Trial Tr. 1118-20, 1122-23, 1127, 1138, 1148; Trial Defendant’s Exhibit JJ). Hulse concluded that a reliable investigation could not exclude an accidental fire due to an electrical mishap and that the fire’s cause must be classified as undetermined (Trial Tr. 1220).

Hulse also sponsored the playing of a video presentation entitled “Countdown to Disaster,” which was played for the jury (Trial Tr. 1150, 1156). In his testimony and narration of the video, Hulse explained that a fire in a room sends heated gas to collect near the ceiling, producing radiant heat, which in turn ignites other substances in the room (Trial Tr. 1156-57). The process continues, adding more heated gas until a condition known as “flashover” occurs, producing temperatures of 1200 to 1400 degrees (Trial Tr. 1264, 1153, 1156-58).8 Hulse testified that “flashover” was a function of the pressure of accumulated gases in a room, and that did not occur in this fire because it was ventilated through the open front door and broken windows (Trial Tr. 1121, 1124, 1152). Rather, he explained, the

8 Unless otherwise stated, all temperatures are given in Fahrenheit. 17

ventilation increased the production of heated gas in the mobile home and produced temperatures of 1800 degrees (Trial Tr. 1153).

Hulse concluded that such conditions, and the myriad unknown variables attendant on any fire of this kind, should cause the jury to dismiss Frank’s estimation that burn patterns showed the presence of a liquid accelerant (Trial Tr. 1161, 1166, 1168). One such effect is the recent prevalence of synthetic carpet and padding material that, combined with other variable aspects of a fire, produces irregular burning that can resemble a pattern of pouring to the untrained eye (Trial Tr. 1168, 1171). Likewise, Hulse said, the effects of radiant heat and high temperatures include the ignition of various fuel sources which were not originally involved in the fire, producing “V” patterns after the fire had already begun (Trial Tr. 1191). Hulse also testified that the temperatures and conditions of the fire may have been sufficient to produce the melting on the aluminum or aluminum-alloy strips found in the mobile home (Trial Tr. 1264, 1274-76). Hulse testified that he knows from experiments he performed that it is very difficult to light HPDs such as kerosene (Trial Tr. 1178, 1285-86).

Defense counsel reviewed the testimony of witnesses to the fire, and criticized Clark’s claim to have identified the obstacle he met in the doorway to the south bedroom (Trial Tr. 1392-94, 1396-97, 1399). Counsel noted that the State was unable to identify the HPD allegedly used in the mobile home, and that there was no evidence that Bunch had been in possession of any HPD close in time to the fire (Trial Tr. 1403, 1415). He contended that the State had committed itself to a hasty decision that the fire was arson, and reviewed Hulse’s testimony and aspects of the fire damage to urge the jury to find that the cause of the fire had not been proven beyond a reasonable doubt (Trial Tr. 1413-15, 1417- 19, 1422-24).

During its closing argument, the State claimed Hulse was “not really an expert” but “a professional witness” who offered “junk science” and who was not as reliable as Frank, a full-time employee of the State Fire Marshal (Trial Tr. 1383-85). The State noted that Frank

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had not claimed to know how the fire started; he claimed that the physical evidence showed two sources of fire that spread throughout the mobile home (Trial Tr. 1426). The State discussed the physical evidence which it believed showed that the fire had been intentionally set, and also noted that Kinnard had identified HPD in the living room (Trial Tr. 1432-33, 1436-38). The State also noted that Bunch’s behavior and statements were inconsistent with Tony’s behavior and with the behavior and statements of someone who had been involved in an accidental fire (Trial Tr. 1427, 1430-31)

SUMMARY OF THE ARGUMENT

I. The PCR court did not clearly err when it found that Bunch’s alleged newly-

discovered evidence did not justify a new trial. Bunch’s characterization of this case as one in which “science” dispels “myth” overstates the effect of her evidence, which is merely impeaching, cumulative, or unlikely to produce a different result at retrial.

II. The PCR court did not clearly err when it found that Bunch’s alleged newly-

discovered evidence did not justify a new trial. Bunch’s Brady arguments rely on pejorative assumptions which are not supported by evidence. If the supplemental ATF material had been introduced at trial, it would not have had an effect on the verdict.

III. The PCR court did not clearly err when it found that Bunch had failed to show that

shereceivedineffectiveassistancefromtrialcounsel. Trialcounselproperlypreparedand conducted the presentation of her case before the jury. Bunch was not prejudiced by any act or omission of counsel.

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ARGUMENT

I. The PCR court did not clearly err when it found that Bunch’s alleged newly-discovered evidence did not justify a new trial.

Bunch faces a “rigorous standard of review” on appeal. Dewitt v. State, 755 N.E.2d 167, 170 (Ind. 2001). Below, Bunch had the burden of establishing the grounds for relief by a preponderance of the evidence. Ind. Post-Conviction Rule 1(5); Ben-Yisrayl v. State, 738 N.E.2d 253, 258 (Ind. 2000). Bunch is therefore appealing from a negative judgment. Id. at 258. The post-conviction court’s findings of fact are accepted unless “clearly erroneous.” Davidson v. State, 763 N.E.2d 441, 443-44 (Ind. 2001). This Court will only consider the probative evidence and all reasonable inferences therefrom that support the PCR court’s determination and will not reweigh the evidence. Bigler v. State, 732 N.E.2d 191, 194 (Ind. Ct. App. 2000). The PCR court’s denial will not be disturbed unless “the evidence is without conflict and leads to but one conclusion, and the post-conviction court has reached the opposite conclusion.” McCary v. State, 761 N.E.2d 389, 392 (Ind. 2002). “In other words, the defendant must convince this Court that there is no way within the law that the court below could have reached the decision it did.” Stevens v. State, 770 N.E.2d 739, 745 (Ind. 2002) (emphasis original).

With respect to Bunch’s claims of newly-discovered evidence, such claims should be received with great caution and carefully scrutinized. Taylor v. State, 840 N.E.2d 324, 329- 30 (Ind. 2006). A defendant who claims that such evidence warrants a new trial must show: (1) the evidence has been discovered since the trial; (2) it is material and relevant; (3) it is not cumulative; (4) it is not merely impeaching; (5) it is not privileged or incompetent; (6) due diligence was used to discover it in time for trial; (7) the evidence is worthy of credit; (8) it can be produced upon retrial of the case; and (9) it will probably produce a different result at retrial. Id. That Bunch’s offered facts are presented as “newly-discovered evidence of scientific research “does not excuse her from these requirements. Pruitt v. State,

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903 N.E.2d 899, 932 (Ind. 2009). The PCR court did not clearly err when it found that Bunch had failed to show that her newly-discovered evidence was not merely impeaching, cumulative, was worthy of credit, or that it will probably produce a different result at another trial. (App. 14-16, 17-19, 20-21, 22-24, 25-27).

A). Bunch’s “fire victim toxicology evidence” does not entitle her to a new trial.

Jamie McAllister testified, as did Hulse, that she believed the fire began in the ceiling in the area of the south bedroom (Trial Tr. 1118-20, 1122-23, 1127, 1138, 1148; Trial Defendant’s Exhibit JJ; PCR Tr. 277). Like Hulse, McAllister developed this opinion using evidence admitted at Bunch’s trial (PCR Tr. 278). This evidence included the results of Tony’s autopsy, which were admitted at Bunch’s trial, that showed Tony’s blood contained 80% carboxyhemoglobin (Trial Tr. 775; PCR Tr. 278-80). McAllister’s addition to Bunch’s case is her contention that Tony’s carboxyhemoglobin level proves that a fire smoldered or burned in the ceiling, producing significant amounts of carbon monoxide, before the fire and carbon monoxide were released into the south bedroom (PCR Tr. 277-78, 282-84). McAllister contended that if the fire had begun on the floor of the south bedroom, Tony would have died of “thermal damage” long before his carboxyhemoglobin level reached eighty percent (PCR Tr. 363).

As the PCR court found, McAllister’s testimony did not reliably demonstrate that carboxyhemoglobin levels alone can determine the ignition or source of a fire (App. 21, 24). But in order to influence any determination of Bunch’s guilt, McAllister’s conclusions require proof that a concentration of carbon monoxide sufficient to produce Tony’s level of carboxyhemoglobin could not have been generated by a fire originating on the floor of the south bedroom. McAllister contended that if kerosene had been ignited on the floor of the south bedroom, and if the fire produced a constant output of 1,000 parts per million of carbon monoxide, it would have taken ninety minutes to generate a sufficient amount of the

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gas, during which time that Tony would have died of temperatures approaching 392 degrees (PCR Tr. 287, 293).

However, Dr. Hawley testified at Bunch’s trial that Tony’s blood could have reached this level “over a period of minutes” (Trial Tr. 782). While McAllister testified that using carboxyhemoglobin as a tool of fire investigation was not included in NFPA standards until 2001, she pointed to no improvements in research that would contradict Dr. Hawley’s judgment (Trial Tr. 296-97). At the PCR hearing, McAllister was confronted by the facts that she had claimed physical incapacitation and death frequently occurs at 50% carboxyhemoglobin, but that Bunch had claimed several times that Tony was talking and moving before the flames on the floor blocked her access to him (Trial State’s Exhibits TR-1 through TR-5; PCR Tr. 280, 369; PCR Petitioner’s Demonstrative Exhibit 6). McAllister’s solution to the dilemma was to state that carboxyhemoglobin levels may rise very rapidly depending on how “rich” the fuel source of the fire was (PCR Tr. 367-68, 369-70). McAllister’s testimony is cumulative, not likely to produce a different result, and does not warrant a new trial. Taylor, 840 N.E.2d at 329-30.

Further, from Bunch’s standpoint McAllister’s contentions can be beneficially distinguished from Hawley’s only by evidence showing a scientific likelihood that a fire was only set on the south bedroom’s floor and would behave according to the parameters she set for her original contention. See Shafer & Freeman Lakes, Etc. v. Stichnoth, 877 N.E.2d 475, 484 (Ind. Ct. App. 2007), trans. denied (holding, “[T]he trial court must make a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and whether that reasoning or methodology properly can be applied to the facts in issue.”); accord Taylor, 840 N.E.2d at 329-30 (holding that newly-discovered evidence must be competent and available for a retrial).9 McAllister, however, provided

9 Bunch’s argument that questions about the reliability of McAllister’s testimony have been waived is inapt. Bunch had the burden showing that evidence would be admissible at retrial. Taylor, 840 N.E.2d at 329-30. The PCR court’s conclusion that she did not do so is not

22

virtually no explanation of the reasoning or methodology by which she concluded that no fire set in the south bedroom and/or the living room could have produced an amount of carbon monoxide gas at a rate which consistent with Bunch’s descriptions of Tony’s actions (PCR Tr. 286-87, 292).

B). Bunch’s “advances in the field of fire investigation science” do not warrant a new trial.

Bunch and Amicus overstate the evidence when they characterize the State’s technical evidence as “myths” which have been utterly repudiated by “science” (Brief of Appellant, 34, 36; Brief of Amicus, 4-6). 10 Frank testified that fires should be considered

clear error and further shows that McAllister’s testimony does not warrant a new trial (App. 21).

10 Error! Main Document Only.The State must also disagree with amicus’ reliance on an affidavit by John Lentini, which Bunch did not offer into evidence during the PCR hearing, as a factual basis for this Court’s ruling (Brief of Amicus 4-6) (PCR Tr. 255). As this Court has noted frequently, it does not reweigh evidence or determine witness credbility, let alone admit new evidence during an appeal. Bigler, 732 N.E.2d at 194; cf. Dinsmore v. Fleetwood Homes, Inc., 906 N.E.2d 186, 189 (Ind. Ct. App. 2009), trans. not sought (holding this Court will not consider evidence which was not properly brought into the record below). While Amicus attempts to rely on Lentini’s affidavit as “other authority” mentioned in Indiana Appellate Rule 46(2), the State submits that a party’s reliance on evidentiary materials that were filed, but not placed into evidence, during proceedings in a trial court does not make those materials “authority” within the Rule.

With respect to Amicus’ remaining arguments, the State notes that United States v. Hebshie, -- F.Supp.2d --, 2010 WL 4722040 (D. Mass. 2010), illustrates the difficulties of Bunch’s paradigm of “science vs. myth.” In that case, the defendant called John Lentini to interpret “V” patterns, other burn patterns, as well as the extent of fire damage, as evidence supporting defendant’s claim for habeas corpus relief. Hebshie, slip op. at 14-16. This is the same type of evidence that Amicus says is invalid under “the new science” (Brief of Appellant, 3) (Trial Tr. 547-48, 620, 819, 821). In the context of a Strickland claim, the Hebshie court found this evidence persuasive enough to have alerted counsel to a contrary theory of fire origin. The District Court did not, as Bunch and amicus suggest, set aside Hebshie’s convictions because the examination and interpretation of arson evidence in 2001, when Hebshie was convicted, has been rendered unworthy of credit by “the new science” (Brief of Appellant, 3).

Indeed, the most critical flaw found by the District Court in Hebshire was the government’s failure to exclude the presence of LPDs (the alleged accelerant) from other areas of the burned premises; the fact that LPDs can be produced by fires such as the one in that case; and the government’s excessive reliance on a dog alert and testimony about the

23

accidental unless and until accidental causes can be eliminated (Trial Tr. 835). Two of Bunch’s experts, John DeHaan and Richard Hansen, testified that this is the proper approach to a fire investigation (PCR Tr. 104, 222). Frank testified that “V” patterns reflect the ignition of a fuel source and provide a guide to the origin of a fire (Trial Tr. 829). DeHaan also testified that “V” patterns can be a useful tool in detecting arson (PCR Tr. 403, 446-47). Frank also testified that a heavy pattern of scorching on a floor shows the use of an accelerant (Trial Tr. 834-35). DeHaan testified such patterns may indicate the use of a liquid accelerant (PCR Tr. 105). Indeed, another of Bunch’s experts, John Malooly, testified that Frank’s conclusions may well be correct if it had not been for what he believed to be the occurrence of “flashover” (PCR Tr. 447).11

Malooly described this phenomenon in terms which are virtually identical to the description of “flashover” given by Hulse at Bunch’s trial (Trial Tr. 1121, 1124, 1152-153, 1156-58, 1264; PCR Tr. 382-83).12 Indeed, the video from the London fire research center that Malooly narrated at Bunch’s PCR hearing contains the same description of flashover as “Countdown to Disaster,” the video Hulse narrated at Bunch’s original trial (Trial Tr. 1150, 1156; Trial Defendant’s Exhibit, “Countdown to Disaster”; PCR Petitioner’s Video Exhibit

dog’s “unique prowess” in detecting arson which “effectively turned [the dog’s] alert into substantive evidence of guilt” Id. slip op at 16-18. Bunch’s case does not involve such flaws (Trial Tr. 641, 895). Indeed, unlike Hebshie, Bunch admitted that an accelerant was used to start the fire (Trial Tr. 789-90). As another court, addressing evidentiary claims identical to Bunch’s, has held, the net result of these arguments it to develop alternative interpretations of old evidence and are not proper grounds for granting a new trial. State v. Green, 283 Kan. 531, 153 P.2d 1216, 1222-24 (2007). .

11 Although Bunch decries the myth that accelerants make a fire burn “hotter,” John Malooly referred to an accelerant fire as burning “a little hotter” as a colloquial reference to the fact that such a fire grows more quickly (PCR Tr. 421).

12 Bunch selects a single phrase in Hulse’s testimony that employs the word “pressure” to wrongly contend that Hulse knew nothing of the phenomenon (Brief of Appellant, 6; PCR Tr. 395). While Hulse said, “the reason you have flash over is because of the pressure build up in a confined area,” a review of his entire testimony shows that he attributed flashover to the increase in gases and radiant heating, just as Malooly did (Trial Tr. 1121, 1124, 1152- 153, 1156-58, 1264; PCR Tr. 382-83).

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1).13 Malooly and DeHaan’s testimony differs from Hulse’s because they devoted their testimony largely to contending that flashover occurred in Bunch’s trailer and that the variable effects of flashover rendered the State’s evidence -- the “V” patterns, burn/pour patterns, and the melted aluminum strips -- variable indicators that must be supplemented by additional investigation before concluding that a fire was intentionally set (PCR Tr. 105, 107, 110-11, 129-30, 138-39, 148, 382-83, 403).

Hulse testified that he believed venting caused by the open front door and, eventually, shattered windows on the south end of the trailer prevented flashover from occurring (Trial Tr. 1121, 1124, 1152-53). DeHaan disagreed, noting that flashover can be triggered by venting and its supply of oxygen to the hot gases inside an enclosed area (PCR Tr. 135). However, DeHaan agreed with Hulse’s basic conclusion, namely that this fire was driven by ventilation (Trial Tr. 1121-22; PCR Tr. 135). Like Malooly, Hulse stated that flashover produced temperatures in the range of 1200 degrees (Trial Tr. 1264; PCR Tr. 382- 83). Hulse also noted, as Malooly did thirteen years later, the influence of the increasing use of synthetic fibers on the progress of fires (Trial Tr. 1168, 1171; PCR Tr. 388).

More to the point, however, is that Hulse told the jury that what occurred in Bunch’s mobile home was even more damaging to the State’s case than flashover, because the venting drove temperatures inside the mobile home to the area of 1800 degrees (Trial Tr. 1153). Consequently Hulse believed -- as DeHaan and Malooly believed -- that the variable behavior of the fire deprived the State’s “V” patterns, aluminum-melting, and pour patterns of their persuasive force (Trial Tr. 1168, 1171, 119, 1264, 1274-76). With respect to this most basic, and only significant, point of Bunch’s defense, DeHaan’s and Malooly’s testimony is merely cumulative of Hulse’s trial testimony and not capable of producing another result on retrial. Schafer v. State, 750 N.E.2d 787, 792 (Ind. Ct. App. 2001) (holding

13 Although the trial record indicates that “Countdown to Disaster” was played for the jury without formal admission as an exhibit, the video was included in the record materials previously viewed by the State in preparation for this brief (Trial Tr. 1156).

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that evidence is cumulative if it goes to prove what has already been established by other evidence) (citing Davis v. State, 456 N.E.2d 405, 409 (Ind. 1983)). The PCR court did not clearly err when it found that Bunch was not entitled to a new trial on this ground (App. 16- 18, 22-24).

Even assuming that DeHaan’s and Malooly’s testimony were not cumulative, the PCR court did not clearly err when it found that evidence merely impeaching (App. 24). Bunch mischaracterizes Indiana law when she contends that evidence cannot be impeaching if it “obliterates the testimony upon which a conviction was obtained” (Brief of Appellant, 26). If this were the test, however, any new claims that attack the State’s case or provide new avenues of defense would warrant a new trial. Indiana’s courts have routinely given a contrary interpretation of the rule. Abbott v. State, 535 N.E.2d 1169, 1171-72 (Ind. 1989); Watkins v. State, 528 N.E.2d 456, 457, 460-61 (Ind. 1988); Bell v. State, 626 N.E.2d 570, 573 (Ind. Ct. App. 1993); Walker v. State, 454 N.E.2d 425, 429-31 (Ind. Ct. App. 1983); Goodwin v. State, 439 N.E.2d 595, 600-601 (Ind. 1982). Bunch draws her incorrect interpretation by misreading cases in which the primary source of incriminating evidence admitted to perjury or otherwise withdrew his or her claims; in those cases, the evidence was “obliterated” at its source by its source, and not simply disregarded as the result of a credibility determination. State v. McCraney, 719 N.E.2d 1187, 1189-91 (Ind. 1999); Moredock v. State, 441 N.E.2d 1372, 1374 (Ind. 1982); Key v. State, 235 Ind. 172, 132 N.E.2d 143, 146-47 (1956); Wilson v. State, 677 N.E.2d 586, 588 (Ind. Ct. App. 1997). None of those cited cases stand for the proposition Bunch advances, that any claim or evidence which, if accepted over contrary claims and evidence, could result in a different outcome entitles a defendant to a new trial. To the contrary, evidence or claims which would leave a jury facing the questions presented at the original trial is merely impeaching. Taylor, 840 N.E.2d at 329-30; Abbott, 535 N.E.2d at 1171-72; Walker, 454 N.E.2d at 429- 31; Goodwin, 439 N.E.2d at 600-601. Malooly and DeHaan’s evidence does no more for Bunch than Hulse’s and the PCR court did not clearly err.

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In this regard Bunch also incorrectly argues that the credentials of DeHaan and Malooly and their use of up-to-date versions of ASTME 1387 and NFPA 921 entitle her to a new trial (Brief of Appellant, 41). Bunch incorrectly states that Hulse’s opinions were not based on accepted scientific texts; Hulse used an older version of NFPA 921 in performing his review and evaluation of the evidence (Trial Tr. 1296). For that matter, Hulse’s defense also relied on research conducted by DeHaan to impeach Frank (Trial Tr. 841). As demonstrated above, DeHaan’s and Malooly’s expertise, and their use of more recent versions of industry publications, has produced a case that is, in all significant respects, indistinguishable from the one Hulse presented to the jury.14

II. The PCR court did not clearly err when it found that Bunch’s alleged due process violation did not justify a new trial.

The PCR court’s decisions on this issue are reviewed for clear error, and so the State would rely on is discussion of the standard of review in Part I of this Brief, supra. “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963). The rule applies in situations involving the alleged “discovery[ ] after trial of information which had been known to the prosecution but unknown to the defense.” United States v. Agurs, 427 U.S. 97, 103 (1976). The State notes that the PCR court found that the prosecuting attorney complied with all discovery orders and that Bunch has not suggested

14 Bunch does not develop a significant argument that Richard Hansen’s evidence entitles her to a new trial. Even if she had done so, however, Hansen testified that a proper examination of the mobile home’s electrical system had not been performed and that he could not rule out the possibility that a fire had started in the ceiling in the area of the south bedroom (PCR TR. 211-12, 205-06, 215). Hulse put on a much better case for Bunch by examining wiring and concluding that a fire caused by grounding problems had started in the ceiling (Trial Tr. 1118-20, 1122-23, 1127, 1131-33, 1134-36, 1143-44; Trial Defendant’s Exhibit YY, ZZ & EEE). Hansen’s testimony is also cumulative, not capable of producing a different result at retrial, and merely impeaching. Taylor, 840 N.E.2d at 329-30.

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that her Brady claim involves malfeasance or improper conduct on the part of the State’s trial attorneys (App. 34-36; Brief of Appellant, 47). The State does not, for purposes of Bunch’s appeal only, argue that the supplemental ATF material she obtained through a non- party request for discovery during the pendency of her PCR case is privileged (App. 71, 75; PCR Tr. 30-31). To prevail on a Brady claim, Bunch must have adduced uncontradicted evidence that leads unerringly to the conclusions that the supplemental ATF information: 1) is favorable to her because it is either exculpatory or impeaching; 2) was not provided to her in discovery by the State, whether willfully or inadvertently; and 3) was material to an issue at trial. Stephenson v. State, 864 N.E.2d 1022, 1056-57 (Ind. 2007). Evidence is material only if it is reasonably shown “to put the whole case in such a different light as to undermine confidence in the verdict.” Kyles v. Whitley, 514 U.S. 419, 435 (1995); accord Minnick v. State, 698 N.E.2d 745, 757 (Ind. 1998). The PCR did not clearly err when it held that Bunch had failed to prove these elements (App. 34-36).

The State must disagree with Bunch’s unsupported characterization of the supplemental ATF material in terms of fraud, such as calling them “altered,” “original,” “revealing,” etc. (Brief of Appellant, 44). As the PCR court properly found, Bunch provided no evidence regarding the sequence of the documents, their author(s) or their significance, if any, in formulating or reporting the ATF’s actual analysis of the samples taken from the arson scene (App. 34). One of the documents is clearly marked “DRAFT” while another bears handwritten corrections (PCR Petitioner’s Exhibit ATF1, ATF2 & ATF3). The documents are more indicative of a bureaucratic drafting process through which a final, accurate report was drafted than they are about any aspect of the evidence in Bunch’s mobile home. While Bunch’s argument assumes and asserts the contrary, in order for her to have shown that the documents could have been used to impeach Kinnard, she must adduce evidence that the documents would show that he was negligent or that his testimony was given with reckless disregard for the truth. Kyles, 514 U.S. at 435. As the PCR court held,

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Bunch did not do so (App. 14, 24). It is worth noting that Bunch’s own expert, DeHaan, agreed with Kinnard’s conclusions about eight of the ten samples (PCR Tr. 128-29).

Bunch devotes a good deal of her argument to incorrectly claiming that because two of the non-final versions of the ATF report numbered samples C6 and C8 among the list of samples which did not test positive for HPD, the reports “reveal” that their the ATF report and Kinnard’s trial testimony, which included C6 and C8 in the list of positive samples, was false (Brief of Appellant, 44-45). Bunch relies on the testimony of DeHaan, who examined chromatograph printouts in the supplemental ATF material and opined that an insufficient number of peaks existed for him to identify the presence of HPDs in those samples (PCR Tr. 71-73, 81-82, 83-84). DeHaan based this opinion, in part, on his assertion that other chemicals may have been at the fire scene which might have influenced the chromatograph’s results (PCR Tr. 82).

However, DeHaan acknowledged that some analysts did not follow ASTM 1387's distinction between kerosene and other heavy petroleum distillates, and Kinnard testified at Bunch’s trial that he was one of these analysts because he considered kerosene an HPD even though ASTM 1387 contained a specific reference line for that substance (Trial Tr. 919; PCR Tr. 76). Combining the criteria for kerosene contained in the 1990 version of ASTM 1387 as the low end of HPD analysis shows that Kinnard’s results for sample C6 and sample C8 were within the (modified) parameters of ASTM 1387 (Trial Tr. 905, 916, 919; Trial Defendant’s Exhibit I). DeHaan’s other disagreements with Kinnard’s conclusions amount to disputing whether peaks on the chromatograph are “really significant” in DeHaan’s judgment (PCR Tr. 83-85). The supplemental ATF material does not “reveal” hidden proof that samples C6 and C8 did not contain HPD; it proves what Kinnard testified to at Bunch’s trial, namely, that he considered samples testing at or above the minimum limit for kerosene in ASTM 1387 to contain HPD (Trial Tr. 919).

As the PCR court correctly found, DeHaan’s commentary on Kinnard’s methods created a “battle of the experts” as to whether Kinnard’s judgment in any way detracted

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from the weight a jury might or might not assign to his results (App. 40). While DeHaan opined that Kinnard’s method deviated from ASTM 1387, DeHaan did not opine that this result would have had any great weight or benefit to Bunch’s defense (PCR Tr. 76). In this regard it should be noted that Bunch’s counsel vigorously cross-examined Kinnard about the fact that Kinnard’s alleged matches for C6 and C8 differed from his alleged matches for the remaining positive samples (Trial Tr. 904-06). Counsel also argued that Kinnard was unable to identify the positive samples in closing (Trial Tr. 1403, 1415). Kinnard’s method of analysis, which was placed into evidence at Bunch’s trial, is not exculpatory or impeaching. Kyles, 514 U.S. at 435.

Further, by the time Kinnard testified, other witnesses had introduced the innocent presence of kerosene in the trailer. Susan Hubbard testified that a kerosene heater had been used in the mobile home’s living room prior to 1988 (Trial Tr. 577, 583). During her cross- examination, Bunch’s counsel elicited evidence that this heater was kept filled with kerosene taken by a siphon from a five-gallon drum, and sometimes the heater was filled inside the mobile home (Trial Tr. 583). He also elicited Hubbard’s statement that it was very likely that kerosene had spilled on the living room floor (Trial Tr. 583). Perhaps reacting to this evidence, the State asked Kinnard whether kerosene which had been spilled on the carpet four or five weeks before the fire would have produced the test results he found (Trial Tr. 924). During Bunch’s cross-examination, however, Kinnard agreed that if a flammable liquid had passed through the carpet and padding and into the wood subfloor, traces would remain in the floor for a longer period of time (Trial Tr. 925).

However, as DeHaan admitted at the PCR hearing, the possibility that spilled kerosene had remained in the floor for eight years was remote (PCR Tr. 156-57, 165-67). The presence of three HPD samples in the pour pattern observed by Frank is undeniable and uncontradicted (Trial Tr. 823; PCR Tr. 128). Bunch tacitly admitted to Connie Land that Bunch had used liquid petroleum to start the fire, although Bunch attempted to blame Susan Hubbard’s ex-husband for the crime (Trial Tr. 789-90). A year before the fire, Bunch had

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asked a friend to take custody of Tony because Bunch “needed to get away from it all” (Trial Tr. 760-62). Bunch was the only adult in the trailer when the fire began, and none of her conflicting statements accounted for the smoke detectors in the mobile home (Trial Tr. 574; Trial State’s Exhibits TR-1 through TR-5). She warded off Ron Parkinson’s rescue attempt by telling him that Tony was behind a locked door (Trial Tr. 616-17, 623). Knowing that the door had actually been removed, Bunch placed a large, heavy chair in the doorway to keep her three-foot-tall son from escaping the fire (Tr. 661, 669, 819, 974, 1076, 1078). A debate between experts about whether it was proper form to consider kerosene the baseline for HPD analysis would not have changed the outcome of the trial (App. 40). Kyles, 514 U.S. at 435.

III. The PCR court did not clearly err when it found that Bunch had failed to show that she received ineffective assistance from trial counsel.

The PCR court’s decisions on this issue are reviewed for clear error, and the State would rely on its discussion of that standard in Part I, supra, of this Brief. With respect to the evaluation of trial counsel’s effectiveness, Bunch was required to carry a heavy burden in the PCR court. There is a strong presumption that Bunch’s trial counsel rendered adequate assistance and made all significant decisions in the exercise of his reasonable professional judgment; Bunch could only have rebutted this presumption with “strong and convincing evidence” to the contrary. Carr v. State, 728 N.E.2d 125, 132 (Ind. 2000). Such evidence must have shown that trial counsel’s representation fell below an objective standard of reasonableness and that there is a reasonable probability that the result of the proceeding would have been different but for defense counsel’s unreasonable actions or omissions. Troutman v. State, 730 N.E.2d 149, 154 (Ind. 2000) (citing Strickland v. Washington, 466 U.S. 668 (1984)). Isolated poor strategy, bad tactics, a mistake, carelessness, or inexperience does not amount to ineffective counsel unless, taken as a whole, the defense was inadequate. Carr, 728 N.E.2d at 131. Counsel’s conduct is assessed

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by facts known at the time and not by later information or hindsight. State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997). Our Supreme Court has held that “[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.” Wentz v. State, 766 N.E.2d 351, 360 (Ind. 2002); Williams v. State, 706 N.E.2d 149, 154 (Ind. 1999).

A). Bunch has failed to show that counsel was ineffective in engaging experts and challenging the State’s expert case.

Bunch incorrectly claims that her trial counsel was obliged, not only to find an expert to challenge the State’s evidence, but to find ones who would testify as her experts did at the PCR hearing (Brief of Appellant, 57-58). To the contrary, as our Supreme Court has recognized, a decision to provide no expert defense, and to instead put the State to its proof, would have been acceptable under Strickland. Ritchie v. State, 875 N.E.2d 706, 716-17 (Ind. 2007). Bunch presented no evidence at the PCR hearing that would suggest that a chemist was available who could dispute Kinnard’s decision to use kerosene as the baseline for HPD analysis (PCR Tr. 75-76). Bunch incorrectly claims that the State exploited this alleged gap in Bunch’s defense by remarking in closing argument that Hulse never addressed the presence of HPD (Brief of Appellant). It was for the jury to weigh that claim against Hulse’s actual testimony about the presence of HPD and the other evidence presented at trial (Trial Tr. 1170, 1174, 1180). As the discussion in Part II of this Brief shows, moreover, the availability of such an expert would not have provided Bunch with any greater hope of acquittal.

While Hansen testified that a good fire investigation would have gathered as much information as possible regarding the mobile home’s electrical system, Bunch’s counsel used Hulse to make the same point (Trial Tr. 1131-32). Bunch’s counsel was appointed on July 6, 1995 (Trial Tr. 11). He requested funds to engage experts on July 24, 1995 (Trial Tr. 22). When permission was granted on August 3, 1995, Bunch’s counsel consulted with the

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Indiana Public Defender, through whom he located Thatcher and then Hulse (Trial Tr. 28; PCR Tr. 34-35). Thatcher and Hulse had begun their work by August 18, 1995 (Trial Tr. 983). Because the trailer had remained exposed to the elements, Hulse reviewed the State’s investigative material and even interviewed Skaggs, who was “very forthcoming” in describing the State’s investigation (Trial Tr. 984, 1107-08). Hulse testified to the same faults in the mobile home as Hansen (Trial Tr. 1146; PCR Tr. 193). Bunch has not shown that her counsel could have gathered more information about the trailer’s electrical system to make the engagement of an electrical engineer worthwhile.

Bunch’s contention that trial counsel was ineffective in allowing Dr. Arnett to suggest to the jury that she had sustained burns in a “flash fire” without having engaged a “trauma expert” is unsupported by the record (Brief of Appellant, 58). Dr. Arnett testified that the burn on the tip of Bunch’s nose was caused by an instant of contact with flame; he did not refer to a “flash fire” or express any opinion about the properties of burning kerosene or the manner of Bunch’s contact with flame or radiant heat (Trial Tr. 771). Bunch’s assertion that counsel failed to engage a “qualified” fire expert to rebut Arnett’s non-existent testimony is repudiated by the record (Trial Tr. 771).

Likewise, Bunch’s claim that her trial counsel failed to suggest that the HPD found in her living room had an “innocent” explanation is not supported by the record. In the PCR court, Bunch presented an affidavit from Hulse that he had told Bunch’s trial counsel that a “prior owner” had used kerosene in the mobile home (App. 362; PCR Tr. 255). Hubbard testified that she and her former husband David Hanna used kerosene in the mobile home and that she was sure that spills occurred there (Trial Tr. 575, 584). At the PCR hearing, Bunch presented testimony to the same effect by David Hanna’s brother (PCR Tr. 259). Hanna claimed that before the trial he was contacted by an unknown person who asked him if he used flammable liquid in the trailer; Hanna did not know who the person was, and an unsupported claim that Hanna is the “prior owner” in Hulse’s affidavit is unpersuasive in view of the number of prior owners and forms of ownership of the trailer (App. 362; Trial

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Tr. 572, 575, 578). At the PCR hearing Bunch produced an affidavit from Bradley Thatcher stating that he transcribed his conversations with people he spoke to and provided the transcripts to trial counsel (App. 365; PCR Tr. 255). Bunch provided no evidence indicating that a transcript of a conversation with Hanna was prepared or given to her trial counsel, and trial counsel testified that he was aware of prior kerosene spills only through Hubbard’s testimony, which he elicited at trial (App. 362; PCR Tr. 30-32, 33-35, 36-38; Trial Tr. 575, 584). Bunch has failed to demonstrate ineffectiveness in this matter (Trial Tr. 575, 584).

In a related argument, Bunch labors under the misapprehension that this Court cannot sustain the PCR court’s findings with respect to her alleged newly-discovered evidence without concluding that her counsel was ineffective in failing to present that evidence at her trial (Brief of Appellant, 59-60). As demonstrated above, Bunch’s newly- discovered evidence has little, if any, bearing on the merits and persuasive effect of her case. That evidence is either cumulative, inadmissible, or incapable of overcoming the presence of HPD and Bunch’s own guilty conduct. To the extent that Bunch believes her present experts are more appealing to a trial strategist, it should be remembered that Bunch was not entitled to a perfect trial, perfect counsel, or perfect experts. Ritchie, 875 N.E.2d at 716-17; Oliver v. State, 843 N.E.2d 581, 586 (Ind. Ct. App. 2006), trans. denied. Bunch has not shown that her counsel could have hired a better expert, let alone proved that an error occurred in her trial or that such an expert would have cured it. The PCR court did not clearly err when it denied her claims that trial counsel was ineffective.

B). Bunch has failed to demonstrate that the PCR court clearly erred with respect to any other alleged instance of ineffectiveness.

Bunch has failed to demonstrate any other instance of ineffectiveness in trial counsel’s representation (Brief of Appellant, 61-36). An examination of the record on which Bunch relies to claim that her counsel was grossly ineffective when he elicited testimony from Tressler shows that counsel forced Tressler to admit that Tressler had not

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looked for charcoal lighter fluid during his investigation even though he believed it could be a significant piece of evidence; Tressler did not attempt to see if inconsistencies in Bunch’s statements could be reconciled; that his suspicions about the fire were not formed from specialized knowledge of arson or the scientific investigations of any expert; and that his suspicion would not be removed even if that such knowledge or investigation contradicted his opinion (Trial Tr. 735-36, 741-42, 752). Counsel asked Tressler about Bunch’s request to Kim Hubbard, that Hubbard take custody of Tony because he planned to, and did, produce Kim Hubbard to claim that Bunch had not made the request (Trial Tr. 760, 1083- 84).15

An examination of the record on which Bunch relies to claim ineffectiveness during the testimony of the Decatur County Sheriff shows that, contrary to the suggestion of Bunch’s brief, the Sheriff had already testified during his first direct examination by the State, about his belief that a chair had been placed in the doorway to the south bedroom (Trial Tr. 794). During cross-examination, defense counsel forced the Sheriff to admit that a gasoline can had been located on the property and that Bunch’s fingerprints were not found on the can, all in the course of inviting the Sheriff to testify to his suspicions about containers being use to carry the accelerant (Trial Tr. 953-55, 956-58, 959-60). Counsel also forced the Sheriff to repudiate Tressler’s statements about Bunch’s motive by testifying that the Sheriff had not determined a motive for the arson (Trial Tr. 956). Counsel obtained the Sheriff’s admission that his suspicions were not formed from specialized knowledge of arson or the determinations of any expert, and counsel vigorously cross examined the Sheriff about Clark’s claim that he had encountered a chair in the south doorway (Trial Tr. 953-55, 956-58, 959-60).

15 Bunch asserts this testimony “would have been objectionable had the prosecution elicited it” (Brief of Appellant, 61). Bunch is incorrect. Ind. Evidence Rules 801(d)(2), 805.

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Counsel also invited the jury to compare the tone and tenor of Bunch’s recorded statements, which were played for the jury, with Oldham’s claim that Bunch displayed “some phoniness” when she was interviewed on June 30, 1995 (Trial Tr. 718-20, 721-23, 951, 952). Even then, counsel forced the Sheriff to admit, “it was hard to determine . . . . Kristy’s real mood . . . . There’s no doubt there was an emotion coming from that tape. Whether or not it was genuine emotion I do not know to this day” (Trial Tr. 952). Counsel also took the Sheriff on a tour of other witness’s statements, and inferences from those statements, which might have been accepted by the jury as evidence that the investigation was not adequately conducted (Trial Tr. 960-62, 963-64).

After eliciting testimony that the use of gasoline was considered by police, who had developed no evidence linking Bunch to the empty gasoline can or the purchase of gasoline at times relevant to the fire and after obtaining, on cross-examination, Kinnard’s testimony that the samples taken from Bunch’s home did not indicate the presence of gasoline, counsel did not object when the State argued in closing that gasoline may have been present with HPD as an accelerant used by Bunch (Trial Tr. 908, 1426). In effect, counsel let the State walk into the trap that had already been set through the cross-examinations of Tressler, Kinnard and Oldham (Trial Tr. 735-36, 741-42, 752, 908, 953-55, 956-58, 959-60).

Bunch’s Strickland argument is merely a claim that counsel was ineffective because cross-examination always poses the risk that, in the course of providing information helpful to the defense, witnesses will also repeat damaging information or give explanations of alleged contradictions in the evidence. Our Supreme Court has repeatedly noted that Strickland arguments cannot be based on quibbles over the most advantageous trial strategy. Bivins v. State, 735 N.E.2d 1116, 1134-35 (Ind. 2000); Olson v. State, 563 N.E.2d 565, 568 (Ind. 1990). The fact that counsel’s strategy was unsuccessful does not prove that he was ineffective. Fugate v. State, 608 N.E.2d 1370, 1373 (Ind. 1993).

Bunch claims that “[b]y his own admission,” counsel’s actions “were not strategic” (Brief of Appellant, 64). To the contrary, counsel testified at the PCR hearing that he was

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aware of Tressler’s and Oldham’s biases (PCR Tr. 42-44). Counsel’s decisions regarding these matters were not unreasonable or prejudicial. Indeed, the matters pursued by Bunch’s trial counsel (alleged unclarity about the accelerant and progress of the fire, Bunch’s alleged lack of motive and the nature of her statements to law enforcement) are matters urged by Bunch’s present counsel as arguments in Bunch’s defense (Brief of Appellant, 33-34). Bunch’s evidence and arguments fail to overcome the strong presumption of effective representation. Carr, 728 N.E.2d at 132. The PCR court did not clearly err when it held that counsel’s actions were reasonable and did not prejudice Bunch (App. 44-46).

CONCLUSION

For the foregoing reasons, the State respectfully urges that the PCR court be affirmed.

Respectfully submitted:

GREGORY F. ZOELLER ATTORNEY GENERAL OF INDIANA Atty. No. 1958-98

Ian McLean DEPUTY ATTORNEY GENERAL Atty. No. 14443-54

WORD COUNT CERTIFICATE

I verify that this brief contains no more than 14,000 words. This brief contains 12,561 words. The word count was conducted by selecting all portions of the brief not excluded by Indiana Appellate Rule 44(C) and selecting File / Document Info in Word Perfect 6.1, the word-processing program used to prepare this Brief.

________________________ Ian McLean

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CERTIFICATE OF SERVICE

I swear under the penalties for perjury that on February 14, 2011, I caused to be served upon the opposing counsel in the above-entitled cause two copies of the Brief of Appellee by depositing the same in the United States mail first-class postage prepaid, addressed as follows:

Jon Bosworth Laramore, Esq. Baker & Daniels LLP 300 N. Meridian St., Suite 2700 Indianapolis, in 46204-0000

Jane E. Raley, Esq. Center on Wrongful Convictions Bluhm Legal Clinic Northwestern University School of Law 357 East Chicago Ave. Chicago, Il 60611-0000

Hilary Bowe Ricks, Esq. 120 East Market Street, Suite 715 Indianapolis, in 46204-00000

Ronald S. Safer, Esq. Kelly M. Warner, Esq. Schiff Hardin LLP 233 South Wacker Drive, Suite 60606 Chicago, Il 60606-0000

OFFICE OF ATTORNEY GENERAL Indiana Government Center South, Fifth Floor 302 W. Washington St. Indianapolis, IN 46204 Voice: (317) 233-2041 Fax: (317) 232-7979 Email: ian.mclean@atg.in.gov

Grayson D. Stratton, Esq. 1000 Louisiana Street, Suite 2800 Houston, Tx 77002-0000

Kelly M. Warner, Esq. 233 South Wacker Drive, Ste. 6600 Chicago, Il 60606-0000

Frances Lee Watson, Esq. 530 W. New York Street Indianapolis, in 46202-0000

Mark A. White, Esq. 1000 Louisiana, Suite 2800 Houston, Tx 77002-0000

________________________ Ian McLean DEPUTY ATTORNEY GENERAL

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http://www.law.northwestern.edu/news/article_full.cfm?eventid=4395



  • www.wishtv.com/.../Mother_seeks_new_murder_trial_...20 Oct 2009
  • ...
    GREENSBURG, Ind. (WISH) - More than 13 years after being convicted and sent to prison for killing her son in

  • [PDF] 

    Bunch, Kristine -- PCR IAC Brady New Evidence 
    ftpcontent.worldnow.com/wthr/PDF/bunchstatebrief.pdf
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  • On July 5, 1995, the State charged Appellant, Kristine Bunch (“Bunch”) with felony murder1 and arson as class A felony2 (Trial Tr. 8-9, 31).3 On October 2, 1995, ...





  • KRISTINE BUNCH Other stories in this book involve confessions, denials, obvious instances of insanity, and that gray area where imprisonment comes as the ...




http://abcnews.go.com/2020/arson-investigation-evidence-science/story?id=10550837#.TsqMFGDQWLA
Mom Served 14 Years for Arson Now Called 'Impossible'

By JAY SCHADLER and THOMAS BERMAN
May 5, 2010


People who escape fatal fires with their lives may face a tangle of emotions: fear, regret, relief.
In many cases, they also
face criminal charges.
"If you
survive a fatal fire, you've got a very good chance of being charged with setting it," said John Lentini, one of the nation's leading fire experts.
If just 5 percent of the nation's half-a-million yearly structure fires are suspicious, Lentini said, then that means 25,000 chances to mistakenly
charge someone with arson.
"And if they [prove a crime took place]
with bad evidence, and the jury believes that it's a set fire, many times there is no doubt about who did it," he said.
Kristine Bunch was convicted by a jury in 1996 of setting a fire in her Indiana trailer that killed her 3-year-old son. She received concurrent sentences of 50 years for arson and 60 years for murder.
"This is a woman who has no prior criminal history ... no arrest record ... no psychiatric history," said Jane Raley, senior staff attorney at the Center on Wrongful Convictions at Northwestern University School of Law. "There was nothing here."
ht_kristine_bunch_2_100504_mn

Courtesy Kristine Bunch

Kristine Bunch poses with one of her sons before her 1996 conviction and imprisonment on charges of setting fire to her trailer, killing another son, Tony, 3.


Raley is working to get Bunch, 36, a new trial. "There is no motive," Raley said. "Why would someone like Kristine do this?"
Lentini questioned the evidence against Bunch.
"I can turn just about any fire into an arson fire if that's what I want to do," he said.

Arson: Conducting a Fire Test
We brought Lentini to the Fire Science Program at Eastern Kentucky University, where technicians conduct fire tests in a bunker set up with rooms of ordinary furniture.
Fires are set in the bunker not with gasoline or other flammable liquids but with just a spark, as if from a burning cigarette.
"We are hoping to generate some of the artifacts that people in the past have called evidence of arson," Lentini said.
Among those whom Lentini counts as having believed misguided arson evidence in the past is ... John Lentini.
Twenty years ago, Lentini got a life-changing lesson in arson fires. Back then, he was convinced that a man named Gerald Lewis had killed his pregnant wife and four children by setting a fire with gasoline in Jacksonville, Fla.
"I was scheduled to be deposed the next morning for the prosecution," he recalled. "I was going to help them send Gerald Lewis to Old Sparky [the electric chair]."
But before he testified, Lentini had a chance to test Lewis' claim that the blaze began by accident when his couch caught on fire.

Arson: The 'Lime Street Fire Test'
Lentini's test is now commonly called the "Lime Street Fire Test." To Lentini's surprise, the fire in the test left behind the exact same signs as if it had been started with gasoline, even though none was used.
"It was an awakening," Lentini said.
Which is why Lentini is now driven to bring hard science into what traditionally has been seen as the "art" of fire investigation.
"I think when they said ... 'art,' I think what they meant was luck," Lentini said.
Back at Eastern Kentucky University, investigators began their fire experiments, with cameras and thermal imaging sensors recording every moment.
The tiny couch fire grew steadily as a layer of hot dense smoke formed on the ceiling. The sensors showed how hot it was. Temperatures reached about 1,200 degrees. Soon, blazing hot gas started to descend.
Just minutes after the fire was started, the hot gases suddenly ignited, and the room exploded.
This is a phenomenon known as "flashover."
Page 2 of 3
May 5, 2010


"Flashover is a transition point where you go from having a fire in a room to a room on fire," Lentini said.
Arson: Burn Patterns and Points of Origin
But what you see after a fire has exploded into flashover is even more important to our story. Lentini guided us through the ruins after the fire was out.
"If you see a pattern on the couch, that looks like it's where it started," Lentini said. "'Cause there's a 'V' [a V-shaped burn pattern] over there, and there's a 'V' over here. You say, 'Well, that could be two points of origin.'"
The appearance of multiple points of origin in a fire has traditionally been regarded as "slam-dunk" evidence of arson, Lentini said.
It was such a slam-dunk that helped put Bunch in the slammer. During Bunch's trial, the prosecution used photos showing burn patterns as evidence of multiple places of origin.
"That is 100 percent inaccurate," said Raley, who is working for a new trial. "One hundred percent wrong. One hundred percent fiction."
When Bunch was convicted in 1996, Raley said, flashover and the science of arson were not well understood. Bunch has now served 14 years in prison and has no hope of parole for at least 12 years.


The prosecutor in Bunch's case declined our request for an on-camera interview, but he maintained that the jury made the right decision. He said that Bunch's behavior was questionable and that she made many contradictory statements during numerous police interviews. The jury made its decision on matters that go beyond the science alone, he said.
There wasn't much left of Bunch's trailer after fire swept through it, killing her son, Tony, 3, in June 1995. What was left, according to fire investigators at the time, was unmistakable evidence of arson.
"The arson conclusion was made within two hours of the investigators arriving at the trailer," Raley said. "The first investigators arrived around 8 o'clock in the morning. By 10 o'clock in the morning, there had already been a conclusion."
That conclusion was that Bunch had poured accelerant in her son's bedroom, touched off the fire and let him die. "I am never going to stop fighting, never going to stop trying to prove that I didn't do this," Bunch said.

Arson: 'Their Theory Is Impossible'
Prospects for a new trial for Bunch may depend on one woman, Jaime McAllister, an expert in the emerging field of combustion science. McAllister's opinion about the prosecution's original arson case can be summed up in four words.
"Their theory is impossible," she said.
An autopsy report on the little boy's body showed he died with 80 percent carbon monoxide in his blood. That's an impossibly high number, McCallister said, if the fire had been set in his room.
"You couldn't breathe in that amount of carbon monoxide and get to that level of 80 percent before you would die from the heat," McAllister said.
Tony Bunch was dead, she said, long before the flames got to him.
Basic science suggested the fire started in an unventilated place, like in the space between the ceiling and the roof, where there were electrical wires and a malfunctioning light, McAllister said.
A short in the wires could have overheated the ceiling tiles.
"As that smoldering occurs, it produces a lot of products, like soot and carbon monoxide," McAllister said. "And they would start to leak out in the room."


Page 3 of 3
May 5, 2010


Arson: Wrongful Conviction?
In her theory, little Tony passed out from breathing carbon monoxide. The fire grew. Ceiling tiles broke down and fell. Fed by more oxygen, much thicker, hotter smoke billowed into the room.
"Very quickly, he is going to inhale those products, and he is going to die very quickly from those products," McAllister said.
For Bunch's lawyer, the new toxicology evidence leads to only one conclusion.

"The fire could not have started in the living room, it could not have started in the bedroom," Raley said. "So we know that the fire could not have happened the way the state claims. ... It just can't happen."
But if the fire did not happen as the prosecution claimed it happened, why wouldn't a new trial be guaranteed?
"Well," Raley said with a sigh, "it's always difficult to unravel a wrongful conviction."
Decatur County, Ind., prosecutor William Smith said he believes the "new" science was already rejected by the jury.
He said Raley just wants to substitute her expert's opinions for that of the jury.
The court ruling could come at any time. This first appeal is the least likely to succeed, said Raley, who vows that she is prepared to keep going to higher courts in an effort to get Bunch a new trial.
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