Bunch v. State

• Decision Date: 21 March 2012
• Docket Number: No. 16A05–1007–PC–439.,16A05–1007–PC–439.
• Parties: Kristine BUNCH, Appellant–Petitioner, v. STATE of Indiana, Appellee–Respondent.
• Court: Indiana Appellate Court

964 N.E.2d 274

Kristine BUNCH, Appellant–Petitioner,

v.STATE of Indiana, Appellee–Respondent.

No. 16A05–1007–PC–439.

Court of Appeals of Indiana.

March 21, 2012.

Jon Laramore, Faegre Baker Daniels, LLP, Hilary Bowe Ricks, Indianapolis, IN, Jane E. Raley, Center on Wrongful Convictions, Bluhm Legal Clinic, Northwestern University School of Law, Ronald S. Safer, Kelly M. Warner, Chicago, IL, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

ROBB, Chief Judge.

Case Summary and Issues

Kristine Bunch was convicted by a jury in 1996 of felony murder for the death of her young son, Anthony (“Tony”), in a fire at their mobile home and sentenced to sixty years.¹ In 2006, Bunch began pursuing post-conviction relief, which was ultimately denied by the post-conviction court in 2010. In this appeal from the denial of post-conviction relief, Bunch raises three issues that we expand and restate as four: 1) whether the post-conviction court erred in concluding fire victim toxicology evidence offered at the post-conviction hearing was not newly-discovered evidence; 2) whether the post-conviction court erred in concluding fire investigation technique evidence offered at the post-conviction hearing was not newly-discovered evidence; 3) whether the post-conviction court erred in denying her relief on the basis of a failure by the State to turn over exculpatory evidence in contravention of the dictates of Brady v. Maryland; and 4) whether the post-conviction court erred in denying her relief because of ineffective assistance of trial counsel. We conclude the fire victim toxicology evidence does constitute newly-discovered evidence and the post-conviction court clearly erred in denying Bunch relief on this claim. We also conclude the State's failure to turn over a report from the ATF testing of floor samples violates Brady and the post-conviction court also clearly erred in denying Bunch relief on this claim. Because either of these two errors warrants a new trial, we need not address the remaining issues. We reverse and remand for a new trial.

Facts and Procedural History

As stated in the direct appeal:

In the early morning hours of June 30, 1995, a fire destroyed Bunch's manufactured home in Decatur County. Her three-year-old son died as a result of injuries suffered in the blaze. In several statements to police, Bunch asserted that she was awakened in her home by the fire and unsuccessfully tried to extinguish it and rescue the child, but ultimately fled to summon assistance. When emergency crews arrived, the south end of the home, where the boy had been sleeping, was engulfed in flames twenty to thirty feet high. Bunch was outside of the home with several onlookers. As the fire raged out of control, a firefighter entered the home and retrieved Bunch's son from the bedroom. The child was pronounced dead at the scene. Bunch sustained mild burn injuries and was taken to a hospital for medical attention. Within hours, the State's investigation focused on her as the only suspect.

Bunch, 697 N.E.2d at 1256 (footnote omitted).

At the jury trial, no witness testified to seeing Bunch set the fire or hearing her talk about doing so; there was no evidence Bunch had purchased a liquid accelerant and no evidence of flammable liquid on the clothes she was wearing; and there was no testimony regarding a motive for her setting the fire. The State's case relied largely on expert testimony describing two points of origin for the fire from visual inspection and testing of floor samples showing evidence of a liquid accelerant. Brian Frank, assistant chief investigator for the Indiana State Fire Marshall's office, testified to the existence of “V” burn patterns on horizontal surfaces that indicated to him areas of combustion. See Record of (Trial) Proceedings (“Trial Record”) at 819 (Frank explaining that “[a] V pattern ... points you back down to the area where the fire started.”). In addition, a hole was burned through the floor near the bed in the south bedroom. “[I]t's unusual for a fire to burn in a downward manner.... Something has to draw the fire down. Liquid accelerant would do that.” Id. at 829. Based upon his training, experience, and observations at the scene, Frank opined:

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.

Id. at 831. Frank also testified that a hydrocarbon sniffer and a canine both indicated the presence of hydrocarbons ² at the fire scene and samples were taken of those areas. The samples were primarily of the flooring throughout the mobile home, but also included mattress ticking, tack strips and paneling, and the nightgown Bunch was wearing at the time of the fire.

William Kinard of the federal Bureau of Alcohol, Tobacco, and Firearms testified that he received ten samples taken from the fire scene and was asked to determine whether there was evidence of an accelerating material present in those samples. Kinard testified that his analysis by gas chromatography found evidence of a heavy petroleum distillate, such as diesel fuel or kerosene, in five of the flooring samples, although two of the samples tested with different carbon number readings putting them “on the ... downhill side or the tailend of a heavy petroleum distillate....” Id. at 907. Four of the samples testing positive came from the living room and one from the bedroom. A written report summarizing these findings was also entered into evidence.

The forensic pathologist who conducted the autopsy on Tony testified that “within reasonable medical certainty,” id. at 779, Tony died from smoke inhalation. He further testified that Tony's blood had a carbon monoxide saturation reading of eighty percent, which indicated “we're probably looking at an event that happened over a period of minutes, in terms of the absorption of carbon monoxide.” Id. at 782.

In addition to the expert testimony, the State presented evidence that firefighter Ron Clark entered the mobile home to attempt to rescue Tony and encountered an obstacle in the path he took between the living room and south bedroom. After the fire had been put out and the investigation began, a recliner or swiveling chair was identified as partially obstructing the doorway between the living room and the bedroom. Bunch's mother testified that the chair had always been in that location so as not to obstruct a nearby heating vent and it “stuck out a little bit, but not really.” See id. at 1077–78. Clark testified that he had climbed over both ceiling tiles and furniture in entering the bedroom, id. at 669, but also gave a statement after the fire about his entry into the bedroom in which he stated “that wall was already destroyed by fire.... There was some structural members that were weak that I know that I had knocked down going through at that time[,]” id. at 679. A neighbor who arrived to help testified that Bunch told him Tony was behind a locked door, although the door between the living room and the south bedroom had been removed some time prior to the fire. Connie Land, manager of the mobile home park, testified that when Bunch and her mother returned to the mobile home a couple of days after the fire to thank people who had helped, Bunch gave an account of how the fire started in which she recounted that someone else had been in the trailer with her and Tony and had “sprinkled her with, I'm not sure if she said it was either kerosene or gasoline.” Id. at 789. Bunch's mother testified, however, that she was with Bunch the entire time they were at the mobile home and Bunch did not relate that version of the fire to Land. Id. at 1058. Bunch's mother also testified that following the fire, she and Land were engaged in litigation over the disposition of the mobile home, and there were hard feelings between the families. Id. at 1059–60.

The State also presented evidence that Bunch's injuries were minor and consistent with a brief but direct exposure to flame. Finally, the State presented evidence of the various accounts Bunch gave of the time leading up to the fire and her actions upon discovering it. She variously recounted that she and Tony had gone to sleep on the couch in the living room or in the bedroom; that she did or did not see smoke when she woke up; and that she saw flames in the bedroom doorway or on the floor by the bed. She also recounted Tony speaking to her as she tried to put the fire out.

Bunch offered evidence of past electrical problems in the mobile home, and Tom Hulse, Bunch's expert witness and an arson investigator, testified that in his opinion, the origin of the fire “should be classified as undetermined, with an explanation that there is a probability that it is an accidental fire and not an intentional fire.” Id. at 1130. Hulse testified the fire did not reach a stage in fire development known as “flashover.” Id. at 1151. The jury found Bunch guilty of both felony murder and arson. The trial court entered judgment of conviction on both counts, and despite stating the arson conviction was merged into the felony murder conviction, ordered a fifty-year sentence for the arson conviction to be served concurrently with a sixty-year sentence for the felony murder conviction.

On direct appeal, our supreme court remanded the case to the trial court with directions to vacate the arson conviction because although the trial court “may have intended to vacate the arson conviction, ... the record remains susceptible to the conclusion that Bunch stands convicted of arson and was given a concurrent fifty year sentence[,]” which would violate double...