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Following NFPA guidelines establishes expertise
The defendant, Todd N. Perkins, appealed twenty-eight felony convictions stemming from a jury verdict that found he intentionally caused a building explosion. He challenged the district court’s denial of a hearing to determine the reliability of the basis for the arson investigators’ opinions. IN The People of the State of Colorado v. Todd N. Perkins, No. 20CA0882, 2023 COA 38, Court of Appeals of Colorado, Division A (May 4, 2023), the appellate court addressed claims by incompetent fire causation experts.
BACKGROUND
The prosecution’s evidence at trial established the following relevant facts: In August 2018, an apartment building in Denver exploded and caught fire. Law enforcement personnel, including two fire investigators from the Denver Fire Department, responded to the scene and found Perkins, badly injured and burned, in the rubble of an apartment unit belonging to tenant Matthew Brady. A few months after the explosion, police interviewed Perkins at the hospital. He admitted to being in the basement of Brady’s apartment on the day of the explosion.
During their investigation, the police learned the following:
- In the months before the explosion, Perkins worked as a handyman for the building owner and had been carrying out repairs in Brady’s apartment.
- The building owner had recently fired Perkins.
- Brady had not given Perkins permission to be inside his apartment on the day of the explosion.
- After he was fired, Perkins had sent a series of strange and no doubt threatening text messages to the building owner.
- There was a smell of natural gas in the building before the explosion.
- There were no gas leaks outside the building on the day of the explosion.
- Just before the explosion, Perkins was seen either on the roof of the building or in Brady’s backyard.
A certified K-9, trained to detect accelerants, identified several potential areas of accelerants in the basement. On the first floor of the apartment, police found the gas stove turned on and the thermostat set to “heat.” Subsequent tests confirmed that Perkins’ DNA was on both the thermostat and the crescent key.
Based on their examination of the scene, fire investigators concluded that the disconnected natural gas lines in the basement of Brady’s apartment created a flammable mixture of natural gas and air that ignited and caused the explosion.
A jury convicted Perkins as stated and the court sentenced him to 195 years in the custody of the Department of Corrections.
HEARING
The prosecution authorized Denver Fire Department investigators Don Patterson and Jonathan Riggenbach to testify as fact witnesses and as experts in fire investigations and origin and cause investigations. Fire investigators believed the explosion originated in the basement of Brady’s apartment and that Perkins intentionally caused the explosion by disconnecting natural gas lines and igniting the gas.
The court denied Perkins’ motion to refuse to allow expert testimony from the investigators. The standards set forth by the National Fire Protection Association (NFPA) in its NFPA 921, Guide for Fire and Explosion Investigations, are generally considered the gold standard for fire investigation techniques. The court found that the prosecutor’s experts were either NFPA certified or otherwise met the NFPA standards for fire investigators.
APPLICABLE LAW
Perkins questioned the reliability of arson science. Failure to strictly follow NFPA guidelines does not automatically render the method unreliable. It was not designed to cover all the necessary components of a complete investigation or analysis of any case, nor is it intended as a comprehensive scientific or technical text. Because each fire incident is unique, NFPA 921 recognizes that not all techniques will apply to a particular incident and that it is up to the discretion of the investigator “to apply the appropriate recommended procedures in this guide to a particular incident.”
The Court of Appeals concluded that the fire investigators’ method was reliable because they used NFPA 921 to guide their investigation even though they did not strictly adhere to every step of NFPA 921.
Because the fire investigators’ testimony reveals that their conclusions were based on deductive reasoning, based on their personal observations at the scene of the explosion (ie, the substantial amount of physical evidence of the explosion), as well as their review of related investigation. reports and other documentary materials – including NFPA 921.
Therefore, the trial court did not abuse its discretion in determining that it had sufficient information to make reliability findings.
CONCLUSION
The standards established by NFPA and specifically NFPA 921, the Fire and Explosion Investigation Guide, provide a reliable basis for an expert’s opinion. Strict compliance with NFPA 921 is not required for an expert’s testimony to be admissible under CRE 702, and deviations from NFPA 921 go to the weight of the expert’s opinion and not the admissibility of the opinion.
Arson is a crime of violence. Arson investigation is partly a scientific exercise based on gathering facts. NFPA sets standards for fire cause investigation. The standards are not restrictions on the investigators’ work. They are guidelines that are not set in stone. The fire cause investigators complied with NFPA 921 sufficiently to allow their expert testimony and the verdict was affirmed. The evidence presented at trial was overwhelming and could have been sufficient to convict Perkins and the expertise of the arson investigators was properly presented to help the jury reach a decision. Mr. Perkins should spend the rest of his natural life in prison.
(c) 2023 Barry Zalma & ClaimSchool, Inc.
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