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Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


EXECUTIVE SUMMARY:      This weekly newsletter covers:

  1. Nebraska Supreme Court Upholds Arson/Murder Conviction


In State v. Davlin (Mar. 1, 2002)(No.S-00-958), the Nebraska Supreme Court reviewed the defendant's challenge to his arson and murder convictions. He specifically challenged the testimony of the experts who testified.

The State presented testimony from Ken Scurto, a fire investigator for the State Fire Marshal's office, and Brian Nehe, who was then a fire inspector for the city of Lincoln. Both opined that the fire in this case started on the mattress in the bedroom and was intentionally set. Scurto had been trained in fire investigation, including several classes at the National Fire Academy in Emmitsburg, Maryland. Scurto testified that he was an expert in fire investigation and postblast scene investigation. Nehe testified that he had been trained as a fire investigator by the National Fire Academy and at seminars provided by the International Association of Arson Investigators; the Bureau of Alcohol, Tobacco, and Firearms; and the Omaha Fire Department.

Scurto stated that he arrived at the scene of this fire before any debris had been removed from the room. Scurto testified that based on the heat lines visible throughout the bedroom, he determined that the fire centered on the bed. Scurto observed that the carpet was generally intact and that nothing was wrong with the building's furnace. He noted the absence of reactive chemicals, the lack of explosives or explosive devices, and the lack of evidence of any electrical source of ignition. The mattress, however, was almost completely consumed except for the springs and metal frame.

Scurto testified that after a 3- or 4-hour observation of the room, he and Nehe obtained a search warrant because they felt they had eliminated accidental sources of ignition for the fire. Scurto concluded, because the mattress was too fully consumed and because the fire had burned too hot for an accidental fire given the available fuel, that the fire had started on the bed and had been intentionally set.

Scurto specifically testified that there was no smoke damage in the room that was consistent with the smoldering fire that would have been expected from an accident such as smoking in bed. Scurto stated that because of the severe fire damage to the mattress and body, the fire must have been quick and hot and could not have been a smoldering fire.

Scurto further testified that the pattern of heat concentration around the center of the mattress meant something had concentrated the heat and that the pattern indicated an ignitable liquid. The State also presented evidence that accelerant traces were found on samples of material taken from the mattress and bedroom and that the traces were chemically very similar to the container of charcoal lighter fluid found in the building entranceway.

Nehe testified that it was evident from the burn damage in the room that the fire had started on the bed. Nehe confirmed Scurto's testimony that there was not evidence of the soot and smoke that would be expected from a fire started by a cigarette. Nehe stated that the damage and fire patterns pointed to the bed as the area of origin and that the fire had burned too quickly for an ordinary mattress fire; thus, in his opinion, the fire had been started intentionally.

Davlin argued primarily that Scurto and Nehe formed their opinions without considering certain evidence that was found at the scene of the fire, particularly a cigarette lighter, aerosol can, and foam that may have come from a polyurethane mattress. Davlin also argued that Scurto and Nehe did not properly consider the fact that Ligenza was a smoker.

The fact that there is evidence in the record that could lead to a different conclusion does not render the opinions inadmissible; rather, it provided Davlin with a basis for cross-examination of the expert witnesses and argument to the jury regarding the weight to be given to their opinions. Davlin presented no expert testimony to either contradict the conclusions reached by Scurto and Nehe or criticize the way in which Scurto and Nehe reached those conclusions.

Considering all of the circumstances, the court could not say the district court abused its discretion in overruling Davlin's general objections to the foundation for the testimony of Scurto and Nehe. Davlin's attacks on that foundation were properly directed at the weight to be given the testimony by the trier of fact, and not the admissibility of the evidence.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), (e-mail), Follow us on Twitter at @firesandrain.

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