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North Carolina Court Upholds Investigator's Opinion That Vegetable Oil Did Not Cause Fire
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NORTH CAROLINA COURT UPHOLDS INVESTIGATOR'S OPINION THAT VEGETABLE OIL DID NOT CAUSE FIRE
In State v. Lassiter, No. COAO@-1279, the Court of Appeals of North Carolina reviewed defendant’s conviction. Defendant Allan Thomas Lassiter was tried before a jury in the Criminal Session of the Vance County Superior Court. Defendant was charged with one count of first-degree murder, one count of occupant or owner setting fire to a dwelling house, and two counts of burning personal property. The trial commenced on 17 September 2001. On 8 October 2001, the jury found the defendant guilty of voluntary manslaughter and fraudulently setting fire to and burning a dwelling house; and not guilty of the two counts of burning personal property. The State's evidence tended to show the following: Angela Griffin ("Angela"), Sharon Keeling ("Keeling"), Troy Stainback ("Stainback"), and defendant, were all friends. As of the week of 11 October 1999, the intricacies of the relationships among these four individuals were as follows: Angela and defendant had been friends since 1992, and shared a close relationship where defendant sometimes stayed overnight at Angela's house in her bedroom. Stainback and Angela had an off-and-on intimate relationship and Stainback was the father of Angela's son Logan. Angela had moved back to her parents' from Stainback's, but during the week of 11 October 1999 she was again spending some nights at his house. Keeling and defendant had been involved in an intimate relationship which ended in September of 1999, and defendant was the father of Keeling's daughter Jessica. Keeling and Angela were best friends and coworkers at a restaurant, the Wildflower Cafe. The State offered testimony setting forth the defendant's repeated tactic of winning the affections of women already involved in a relationship by telling these women that their current partner was cheating on them. Tammy Stokes ("Stokes"), a State's witness, testified that while she and defendant were both married, they engaged in an illicit affair. Stokes also testified that defendant told her that her husband was continuously cheating on her. In early October of 1999, defendant arranged for Stainback, Angela's off-and-on boyfriend, to go out with Lisa Rhodes. Stainback and Rhodes did go out together. The week of 11 October 1999, defendant made numerous phone calls to the Wildflower Cafe, Stainback's house, and Angela's parent's house. On 11 October 1999, defendant called the Wildflower Cafe twice and talked with someone other than Keeling. Keeling testified that defendant had never called her at work, nor had he ever come to visit her there. Angela received a phone call at the Wildflower Cafe on the morning of 11 October 1999. Later that day or later that week, as a result of this phone call, Angela and Keeling went to the residence of Stainback to spy on him from the woods. They were looking for a girl who was supposed to have been there with Stainback. Angela was last seen alive on the evening of 15 October 1999. She worked at the Wildflower Cafe that morning and early afternoon. While she was working, defendant and Shane Farrar ("Farrar") ate lunch at the Wildflower and talked with Angela. Later that afternoon, Angela went to Keeling's house and left her son with Keeling so that she could go out and find Stainback. Angela told Keeling that she would be back in an hour. Keeling never saw Angela again. Around 6:00 p.m., Angela called Everett Grissom's ("Grissom") house twice looking for Stainback. While Angela refused to give Grissom her location so that he could have Stainback call her back, phone records indicate that Angela was calling from defendant's mobile home phone number. The times of these calls match both Grissom's phone records and defendant's. Angela spoke to Stainback during the second call. Stainback and Grissom then went to Wilmington, North Carolina for the weekend. From 6:29 p.m. on 15 October 1999, until 12:36 a.m. on the morning of 16 October 1999, a number of people called defendant's mobile home phone number, but defendant never answered the phone. Defendant had plans to go to a party with Farrar that night, but Farrar was one of those unable to reach him. During the time defendant was unreachable as to incoming calls, defendant called Keeling's house from 7:49 p.m. on into the night, approximately eight times. Each call was a short conversation between Keeling and defendant. Keeling testified that during one of the these conversations, defendant told her he had gone to Middleburg to dine at the Middleburg Steakhouse, but that he had been unable to because the steakhouse was closed that Friday. When asked where he was the evening of 15 October 1999, defendant gave the following responses: to Investigator J.M. Cordell of the Vance County Sheriff's Department, he said he had been with Melanie Carlile ("Carlile"), Jennifer Hobgood ("Hobgood") and Mark Sizemore ("Sizemore") at Joker's Pool Room commencing between 10:00 p.m. and 12:00 a.m. until 2:00 a.m. on 16 October 1999. To his landlady, defendant said that he was hanging drywall. To Angela's mother, defendant said that he had planned on spending the night with Angela, Keeling, and their kids at Stainback's house. Evidence was also presented that defendant offered to pay a friend any amount of money to verify that he was with defendant the night that Angela disappeared. Defendant had known Carlile for three months, and their relationship had turned intimate about a week before 15 October 1999. At 1:12 a.m. on 16 October 1999, Carlile called and spoke with defendant from Joker's Pool Room. Carlile had tried reaching defendant thirteen times at his mobile home, but defendant was unreachable until the 1:12 a.m. call. Carlile testified that defendant was hesitant to come to the Joker, stating that he said he "was dirty and didn't feel like going nowhere." At about 1:30 a.m., defendant met up with Carlile, Hobgood, and Sizemore. Carlile first made a statement that defendant arrived in ragged clothing, but then later testified that he was wearing a new outfit. Hobgood testified that defendant arrived at Joker's in worn clothing with dirt on his pants. They stayed at the bar shooting pool until closing, 2:00 a.m., and then all returned to Carlile's father's house. Defendant stayed at Carlile's house until approximately 7:30 a.m. on 16 October 1999. It was the first night he had spent with Carlile. On the morning of 16 October 1999, shortly after defendant had returned to his mobile home, there was a fire in the home's interior. Defendant claimed the cause was hot grease used in preparation of Tater Tots. He claims he went to the door of the mobile home to throw them out, but the wind blew it back in on him and that was how the fire started. Defendant had no observable injuries or burns from the fire, and made no complaint of injuries or burns on the day of the fire. Based solely on what defendant told the firefighters the day of the fire, the Vance County Fire Lieutenant's report of the fire listed its source as a pan of grease. The State's arson and fire expert witness, Agent David Campbell ("Agent Campbell"), testified that it was physically impossible for defendant's mobile home fire to have been caused by ignited vegetable oil/grease being spilled on the carpet. Agent Campbell testified that in his opinion the fire was intentionally set by someone pouring a large quantity of an ignitable liquid in the living room area and setting it on fire. This was based in part on Agent Campbell's finding of hydrocarbon sooting on the inside of the mobile home windows suggesting a hydrocarbon fuel was the source of the fire. Vegetable oil, alleged by defendant to be the source of the fire, is not a hydrocarbon and would not leave a hydrocarbon sooting. Also on the morning of 16 October 1999, a hole that looked like a bullet hole was observed in the front side of the mobile home under the front windows in the area where the most intensive burning had occurred. The owners of the mobile home testified that this "bullet" hole was not in the mobile home when they rented it to defendant, nor did they believe it to have been present until the morning of the fire on 16 October 1999. S.B.I. agent and crime scene specialist Al Langley ("Agent Langley") examined the mobile home and determined that the hole in the front of the mobile home was a .22 caliber bullet hole fired from the inside of the mobile home. At about 8:00 a.m. on the morning of 16 October 1999, Keeling called Angela's mother Diane Griffin ("Diane"), and told her that Angela had not returned to pick up Logan. During the day of 16 October 1999, Diane tried to locate Angela, but could not. Around 5:00 p.m. on that same day, Diane called the Vance County Sheriff's Department and reported Angela missing. Later that day, Angela's car was found parked at the Middleburg Variety Store in Middleburg. The driver's seat was pushed back against the backseat, indicating that the person who had driven the car to the Middleburg Variety Store was a person much taller than Angela. Angela was about five feet two inches while defendant is about six feet four inches. In early February 2000, Angela's skull and other skeletal remains were found in a field and wooded area just off Brookstone Road and Currin Road. A "shallow grave" near Angela's remains had been dug some several months prior to the discovery of the remains. Defendant lived nine-tenths of a mile from the "shallow grave" and the location of Angela's remains. The condition of Angela's remains were consistent with her having been dead since October of 1999. Angela's skull showed numerous fractures on the left, right, and back sides. The State's medical expert witness determined that these fractures were blunt force injuries that were the likely cause of Angela's death. The interior of the mobile home, the carpeting, and other furnishings that had been in the mobile home at the time of the fire, were tested for traces of blood. These tests were inconclusive. Agent Susan Barker ("Agent Barker") confirmed that extreme heat can destroy blood, and a fire can prevent detectives from finding evidence of blood. The jury found the defendant guilty of (1) voluntary manslaughter of Angela Griffin and (2) fraudulently setting fire to and burning a dwelling house; and not guilty of the two counts of burning personal property. The trial court determined defendant had a prior record level of II. He was therefore sentenced to consecutive terms of 77 to 102 months for the offense of voluntary manslaughter, and 8 to 10 months for the offense of fraudulently setting fire to and burning a dwelling house. Defendant entered notice of appeal of the judgment against him on 8 October 2001. On appeal, defendant argued the trial court erred by (I) allowing the introduction of testimony regarding an alleged .22 caliber bullet hole in the front side of defendant's mobile home; (II) allowing expert testimony that it was physically impossible for grease to have caused the fire in the mobile home; (III) denying defendant's motion to dismiss on grounds of sufficiency of the evidence; (IV) instructing the jury that premeditation and deliberation can be inferred from evidence of how a defendant handles a victim's body; and (V) instructing the jury that concealing evidence relating to the death of Angela Griffin was a fraudulent purpose pursuant to N.C. Gen. Stat. § 14-65 (2001). The court was not persuaded by defendant's arguments and concluded he received a trial free from reversible error. Expert Testimony Regarding Fire Causation Defendant alleged error contending the trial court erred in allowing expert witness Agent Campbell to testify regarding the impossibility that grease could have caused the fire of 16 October 1999. Defendant argued that Agent Campbell's expert opinion was merely speculation. The court did not agree. Generally, "a witness as an expert may give testimony in the form of an opinion if his or her specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." State v. Blakeney, 352 N.C. 287, 311-12, 531 S.E.2d 799, 816-17 (2000), cert. denied, 531 U.S. 1117, 148 L. Ed. 2d 780, 121 S. Ct. 868 (2001); State v. Eason, 328 N.C. 409, 421-22, 402 S.E.2d 809, 815 (1991); see N.C. Gen. Stat. § 8C-1, Rule 702 (2001). "The expert may base such an opinion on information not otherwise admissible, so long as it is the type of information reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Eason, 328 N.C. at 421, 402 S.E.2d at 815. The Supreme Court has also held that a properly qualified arson expert may offer opinion testimony that fire was set intentionally. State v. Hales, 344 N.C. 419, 424-25, 474 S.E.2d 328, 330-31 (1996). Agent Campbell testified that he has 40 years of experience with firefighting. His experience is comprised of over 3000 hours of fire department training and fire investigation training. Agent Campbell received his training from a large number of institutions and organizations recognized in the field of fire training and fire investigation, including the International Association of Arson Investigators, the North Carolina Fire Institute, and the North Carolina State Bureau of Investigation. This training includes learning fire chemistry behavior, fire cause and origin, and arson. Agent Campbell is also a level-three instructor in the field of fire and arson investigation who teaches numerous courses each year for institutes such as the International Association of Arson Investigators and the United States Bureau of Alcohol, Tobacco, and Firearms. Agent Campbell was accepted without objection as an expert in the field of fire chemistry and behavior, fire cause and origin, and arson and fire investigation. Defendant objected to Agent Campbell's testimony that the fire was caused by a hydrocarbon source, and that it was physically impossible for grease to have started the fire because, as tested, the fire would go out when it hit the floor. Defendant believed that the jury could be trusted to form its own common sense conclusions about cooking fires and no assistance from an expert is permissible. The court disagreed. Agent Campbell was a qualified expert whose testimony assisted the trier of fact as to the potential origin and cause of the fire in defendant's mobile home. His testimony was not limited to enlightening the jury as to how an everyday grease fire occurs, but expanded on why this was not an ordinary grease fire. Agent Campbell's testimony revealed that the fire moved rapidly, and was fueled by a hydrocarbon, also know as a Class B fuel or material, which produced hydrocarbon soot inside the mobile home. A hydrocarbon is anything that comes from a fractional distillation process, such as gasoline, kerosene, paint thinner, and lighter fluid. Vegetable oil is not such a hydrocarbon, and would not leave any hydrocarbon soot on the interior windows of the mobile home. Furthermore, Agent Campbell testified as to the burn pattern of the fire. In the living room, there was no fire burned V-pattern. However, such a V-pattern was found on the hallway walls and the kitchen. Additionally, he testified that he found hydrocarbon soot patterns under the bottom of the trailer, which was also the location of the deepest burn areas. This reinforced all of the other findings that established that the fire did not start in a specific place, such as the stove, but rather over a large area. This was consistent with the pouring of a quantity of easily ignitable liquid over an area of the living room floor. Agent Campbell testified further that in his opinion it was physically impossible for the 16 October 1999 fire in defendant's mobile home to have been caused by grease. His testimony was based on an experiment he ran attempting to ignite Food Lion Vegetable Oil. After several failed attempts at igniting the hot oil, he finally did so using a plumber's (benzomatic) torch. He then poured the ignited oil onto the floor where the fire went out, leaving grease patterns on the floor. No traces of grease where found on defendant's living room carpet. Agent Campbell was a qualified expert who testified as to the source and cause of the fire of 16 October 1999 in defendant's mobile home. His expert opinion that the source of this fire was a hydrocarbon fuel, that it was impossible for ignited vegetable oil to have been the source of the fire, and that the fuel was poured in a large quantity on the living room floor of the mobile home was properly admitted. This assignment of error was overruled. Burning of a Dwelling for Fraudulent Purposes The elements for the charge of fraudulently burning a dwelling under N.C. Gen. Stat. § 14-65 are that the accused was the owner or occupier of a building that was used as a dwelling house and that the accused either set fire to, burned, or caused the dwelling to be burned wantonly and willfully or for fraudulent purposes. State v. Payne, 149 N.C. App. 421, 424, 561 S.E.2d 507, 509 (2002). It is undisputed that defendant occupied the mobile home, used it as a dwelling, and was alone in the home at the time the fire commenced. Furthermore, the State has established substantial evidence that the fire was not caused accidentally, but started in the living room of the home from a hydrocarbon source. Defendant claimed that the facts of this case, under existing case law, precluded the Court from finding defendant set fire to the mobile home for a fraudulent purpose when that alleged purpose is to burn evidence of guilt of another crime. The court disagreed and held that there was substantial evidence from which a reasonable jury could infer defendant's setting fire to his mobile home was for a fraudulent purpose pursuant to N.C. Gen. Stat. § 14-65. Defendant relied on State v. White, 288 N.C. 44, 215 S.E.2d 557 (1975), arguing that the burning of a dwelling house to conceal evidence is not a "fraudulent purpose" as intended by N.C. Gen. Stat. § 14-65. The court disagreed with defendant's preclusive reading of White. At issue in White was common law arson, where the defendant in that case attempted to burn the dwelling of another for purposes of intimidating the occupant, a State's witness. In his jury instruction, the trial judge had supplanted the "fraudulent purpose" terminology of N.C. Gen. Stat. § 14-65 for the language of the charged crime of common law arson, "willful and malicious." The Supreme Court stated: We do not decide whether the precise use of the term made here by the able trial judge constituted legal error. It might be argued that he defined "fraudulent purpose" to be in this case burning of the dwelling for the purpose of intimidating its occupant, a State's witness. This act would also be a willful and malicious burning. Since, the argument goes, two or more things equal to the same thing are equal to each other the charge is saved from error. Be that as it may, and without considering all the factual circumstances which may be embraced by the term "fraudulent purpose," we believe that the concept has no place in a common law arson case. The better practice is to maintain a clear distinction between this ancient crime and burning for a fraudulent purpose as defined by G.S. 14-65. White, 288 N.C. at 50, 215 S.E.2d at 561. The court believed that destroying evidence in one's dwelling by setting fire to that dwelling fits within N.C. Gen. Stat. § 14-65 and is not precluded by the Supreme Court's restraint in White to assign a more narrow definition of "fraudulent purpose." Fraud is defined as "[a] knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment. Fraud is usually a tort, but in some cases (esp[ecially] when the conduct is willful) it may be a crime." Black's Law Dictionary 660 (7th ed. 1999). There is substantial evidence that defendant intentionally burned the mobile home where he lived. As set out above in this opinion, there is substantial evidence of defendant's guilt of the voluntary manslaughter of Angela. Taking the evidence in a light most favorable to the State, a jury could reasonably infer that defendant sought to suppress the truth and deliberately deceive law enforcement in the investigation of Angela's death by setting fire to his dwelling. The court held this to be a fraudulent purpose under N.C. Gen. Stat. § 14-65. The court affirmed the convictions.
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),
palynch@cozen.com (e-mail), http://www.cozen.com. Follow us on Twitter at @firesandrain.
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