Landry v. State

• Decision Date: 29 July 2016
• Docket Number: No. 20140638–CA,20140638–CA
• Citation: 2016 UT App 164,380 P.3d 25
• Court: Utah Court of Appeals
• Parties: Herbert Landry, Appellant, v. State of Utah, Appellee.

380 P.3d 25

2016 UT App 164

Herbert Landry, Appellant,

v.State of Utah, Appellee.

No. 20140638–CA

Court of Appeals of Utah.

Filed July 29, 2016

Cory A. Talbot and M. Benjamin Machlis, Salt Lake City, Attorneys for Appellant

Sean D. Reyes and Erin Riley, Salt Lake City, Attorneys for Appellee

Judge Gregory K. Orme authored this Opinion, in which Judge Michele M. Christiansen and Senior Judge Pamela T. Greenwood concurred.¹

Opinion

ORME, Judge:

¶1 Herbert Landry appeals the district court's order dismissing his petition for postconviction relief from his conviction for one count of aggravated arson. Landry's theory is one of layered ineffective assistance of counsel. He alleges that he received ineffective assistance from his appellate counsel in his direct appeal when appellate counsel failed to raise the issue of ineffective assistance rendered by his trial counsel. Landry asserts that trial counsel rendered ineffective assistance by failing to object to the State's use of testimony about an accelerant-detection canine's alerts at the scene of the fire and on items of his clothing and by failing to consult with an arson expert or to call an expert witness to refute the State's arson experts. We conclude that such failings, taken together, constitute prejudicial ineffective assistance. Thus, we reverse the district court's contrary disposition and remand for a new trial or the fashioning of such relief as is appropriate under the circumstances. See Utah Code Ann. § 78B–9–108(1)(b) (LexisNexis 2012).

BACKGROUND

¶2 The salient facts were developed in an evidentiary hearing on Landry's postconviction petition, and we take the district court's findings of fact as our starting point. We also rely on our prior decisions in Landry's unsuccessful direct appeal, State v. Landry , 2008 UT App. 461U, and his successful appeal from the district court's denial of an evidentiary hearing on his postconviction petition, Landry v. State , 2012 UT App 350, 293 P.3d 1092, as well as the record from Landry's original trial.

¶3 Landry moved into an apartment complex in Provo, Utah, in September 2005. From September 2005 until he was evicted from his apartment in February 2006, he split his time between Provo and Texas, where his family lived. Landry arranged to vacate his apartment on February 26, 2006, and to conduct a final walk-through inspection with the apartment complex manager at 9:00 p.m. that evening.

¶4 On the day of the scheduled inspection, Landry and his girlfriend were in his bedroom, packing. While there, his girlfriend sat on the edge of the bed and smoked a cigarette. In the afternoon, the two left, apparently intending to return. Some of Landry's belongings remained behind, including clothes, some small furniture items, a mattress, floor coverings, and a suitcase that contained clothes, prescription medications, and financial documents. Neighbors saw the pair leave in a hurry. Some five to ten minutes later, around 4:30 p.m., the same neighbors observed smoke coming from Landry's apartment and called 911 to report a fire. Around this same time, another neighbor observed an unidentified man outside Landry's apartment. Fire investigators were unable to locate that individual, but they did find a discarded lighter nearby.

¶5 During their investigation of the fire, police used a certified accelerant-detection canine named Oscar. Oscar alerted his handler to possible ignitable substances on the floorboards in three places in Landry's bedroom, and investigators determined the bedroom to be the point of the fire's origin. Investigators then sent samples from each of those three locations to the crime lab. The crime lab concluded that heptane was the only ignitable substance that could be present on the floorboard samples. According to the district court's findings, heptane is an ingredient in “a common construction adhesive that is often used to glue carpet down and to glue the components of a subfloor,” and at trial the State conceded that heptane was not the cause of the fire. Oscar was also taken to the motel room where Landry had moved many of his belongings. Oscar alerted to one of Landry's socks and one of his shoes. The crime lab subsequently tested Landry's clothing, including the shoe and sock, and found no ignitable substances.

¶6 In addition to Oscar's alerts, investigators identified a distinct v-pattern on the floor of Landry's bedroom, which indicated, as one investigator testified at trial, that this was “an intentionally set fire from the ignition of ignitable poured liquid.” Police interviewed Landry, who did not attempt to explain the cause of the fire or express concern about the possessions left in his bedroom. Landry agreed during the interview that the fire was likely not due to accidental electrical or chemical causes. He denied smelling smoke or other odors consistent with fire at the time he left the apartment with his girlfriend. He also said there were no tobacco products or other smoking materials in his bedroom. Following its investigation, the State charged Landry with aggravated arson, a first degree felony. See Utah Code Ann. § 76–6–103(2) (LexisNexis 2012).

¶7 During the ensuing two-day jury trial, the State's case included testimony regarding Oscar's training and the meaning of his alerts as well as expert testimony regarding the cause and origin of the fire. First, Oscar's handler, himself a fire investigator, testified that Oscar was trained to “find [ ] ignitable liquids, the typical type of liquid that you'd find in ... a hardware store, for instance, kerosene, Coleman fuel, lighter fluid, charcoal lighter gasoline is the most common type of accelerant[ ] that he's trained on, kerosene.” But Oscar was not trained to alert to alcohol. On direct examination, when asked if “the fact that Oscar [alerted] on an odor necessarily means that there's an ignitable liquid there,” the handler replied that “[t]here are times when he's alerted and it comes back not identifiable hydrocarbon.”² But on cross-examination the handler testified that when the lab determines a sample contains no identifiable hydrocarbon, “[i]t doesn't necessarily mean there is nothing there, there may ... have been but they couldn't identify what it was.” And according to the district court on remand, Landry's trial counsel “elicited testimony” from the handler “that a general rule of thumb is that the error rate is probably in the range of 10%.” During his trial testimony, the Provo City fire marshal stated, “[T]he dog is much more sensitive than some of the scientific equipment that we use.” The district court later found that “[f]ar from accepting the Crime Lab's findings, the State used them instead to bolster the evidence regarding Oscar's alerts,” pointing to the Provo fire marshal's testimony in particular.

¶8 At trial, the State also put on expert testimony from the Orem City and Provo fire marshals regarding the origin and cause of the fire. The Orem fire marshal testified that the fire “beg[a]n at the floor level” and that the burn marks created a v-pattern, which he explained occurs when combustion materials separate from the air around them and which directed the investigators to what they believed was the point of origin. He testified that “the patterns on the floor were indicative of a poured or flowing liquid that had been on the floor and ignited[,] causing increased damage in the specific areas on the floor consistent with ignitable poured liquid.” Despite conceding that he found no accelerants or ignitable liquids in Landry's bedroom, the Orem fire marshal persisted in testifying that “this was an intentionally set fire that occurred from the ignition of ignitable poured liquid.” He also refuted a defense theory advanced by trial counsel—that a lit cigarette that inadvertently came into contact with spilled alcohol could have caused the fire—by pointing to Landry's denial that smoking materials were in his bedroom and his failure to mention spilled alcohol during his initial interview with investigators and by saying that he believed there would have been an explosion that was visible to witnesses if that had been the cause. The Provo fire marshal also testified that the patterns on a piece of subfloor introduced into evidence resulted from “an ignitable liquid that was poured or otherwise distributed” on Landry's bedroom floor.

¶9 Landry's trial counsel called no witnesses to refute the State's experts' testimony regarding the investigation methods and the cause and origin of the fire. Trial counsel instead defended Landry by suggesting that Landry did not set the fire—at least not intentionally. In support of the theory that the fire was an accident, Landry testified that he hosted a party in his apartment the night before the fire and that alcohol was spilled in the general area where the experts testified that the fire had started. This was the first time that Landry mentioned anything about a party or spilled alcohol. He further testified, contradicting his pretrial statements to investigators, that his girlfriend was smoking on the bed shortly before the fire started. Again, this was the first time Landry had mentioned this fact. And when asked on cross-examination for specific details about the party and his girlfriend, Landry could provide none—not even his girlfriend's last name. But apparently hoping to plant the seed of reasonable doubt, trial counsel suggested in her closing argument that the cigarette could have fallen into the alcohol or onto the bed and started the fire.

¶10 In support of the defense theory that whatever the cause of the fire, Landry was not it, trial counsel also called a neighbor who testified that around four o'clock on the afternoon of the fire he heard a knock, apparently on Landry's door, and then saw a man who was “[k]ind of tall, narrow, had glasses, goatee, shaggy beard” and wearing “dark clothes, dark hat,” and whom the neighbor previously had seen “around.” Ten minutes...