A judge has denied a defense motion to have an expert present for a re-enactment by federal investigators of the fatal Carolina Beach fire in December 2014.
In an evidentiary hearing to address the motion Tuesday, District Attorney Ben David said the State is working with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to re-create the vehicle fire that burned down a condo building, killing two women and injuring several other people.
The defendant in the case, 23-year-old Marshall Hudson Doran of Kure Beach, was present in the courtroom Thursday for the hearing. He has been charged with two counts of first-degree murder and other felony charges in connection with the fires. The State is pursuing the death penalty in the case.
Carolina Beach police and fire departments responded to three vehicles fires on Dec. 6, 2014. The first fire was reported at a condo at 409 Carolina Beach Ave. S. at 2:28 a.m. The second fire was reported at 3:45 a.m. at 811 Carolina Beach Ave. S., and the third was reported at 4:34 a.m. at 1123 S. Lake Park Blvd. Each was caused by three separate vehicle fires, David said.
The flames from two of the vehicles spread to nearby structures, including the Carolina Beach Avenue condo where the bodies of 72-year-old Mary Angeline Cochran and 43-year-old Darlene Ann Maslar were later found in the rubble. Doran quickly became a person of interest in the case and was arrested as crews battled the fires.
In February 2015, Doran was indicted on the two first-degree murder charges, in addition to more than 30 other felony charges, including attempted first-degree murder, first-degree arson and cruelty to animals.
“Part of the State’s case is to determine whether or not the fire that was the fatal fire, the first instance, started in a RAV 4 vehicle and then subsequently spread to the structure above it,” David said. “If so, whether or not accelerants would be needed for that fire and if it was done in a way that it’s speculated by the experts that have occurred to this point.”
David said he and fellow prosecutor in the case Alex Nicely visited ATF headquarters in Washington, D.C. in November to speak with agents and to see where the re-enactment will take place. When notified about the re-enactment of the vehicle fire, Doran’s attorney Douglas Kingsberry, of Tharrington Smith in Raleigh, filed a motion to have a defense expert observe the test.
David said the purpose of the hearing Thursday was to determine whether the defense counsel or representatives of the defense team should be allowed into the federal building to observe the re-enactment. He asked the judge to deny the defense motion, stating that out of 80 such re-enactments that have been conducted by the ATF, defense counsel has never been present.
“This is not a consumptive test,” David said. “This is not like a drug case where the drugs would be consumed or a DNA test….This is going to be a task that’s going to be meticulously documented with video and reports.”
But Kingsberry argued that performing the re-enactment without a defense expert present for “passive observation” would be unfair to the defense.
“This is potentially a very important test for both sides in this case because it is not known exactly how this fire started and the manner in which it spread…to the buildings,” Kingsberry said.
Discovery evidence from the State in the case shows that the fatal fire started inside the passenger compartment area of a Toyota RAV 4, Kingsberry said.
“It is unknown…eventually though, it consumed the entire passenger compartment area and then the entire car itself,” Kingsberry said. “Eventually, the fire from that car apparently overspread to other cars nearby and eventually that fire caught the building that the cars were all parked by on fire and the burning of that building, which led to the two fatalities in this case.”
Kingsberry added that the ATF lab has an observation room for people to watch the testing where case agents, prosecutors and state’s experts can see the test from the room without being in danger or compromising the integrity of the investigation.
“We simply ask that our defense expert who’s already in this case be permitted to observe from the sanctity of the observation room – which is what the observation room is for,” Kingsberry said. “There is no prejudice for the state for this passive observation.”
The defense stated they would like to do a similar test but Doran was declared indigent and does not have the funds for such a test. At a previous hearing in 2015, Doran’s attorney asked for the court to declare him indigent when it comes to paying for expert witnesses at trial. He was previously declared indigent–meaning one who cannot pay his or her legal expenses–but waived his right to court-appointed counsel and hired Kingsberry for the case.
“The tax payers are going to be the ones to pay for this testing in the ATF lab. I do not see the defense then petitioning the court for tax payer funds so the defense can then do such a test when one test will suffice,” Kingsberry said. “The bottom line is this man is on trial for his life. For his life. This is a capital case. And all he asks is at this important testing, that a defense expert be allowed to passively observe the test.”
Nicely argued that no one is allowed to be present when police or an agency is conducting a test unless there is some sort of constitutional or statutory right to it. But the courts have not said that a defense witness has a right to be present during a re-enactment, he said.
Nicely added that the testing would be conducted with 12 cameras capturing video from different angles of the re-enactment and all results, including the video, would be turned over to the defense.
“Up to 12 difference camera angles inside of a room of which this test occurs. The test is set up over weeks or months, but the cameras will start recording prior to the test…and go all the way until the end,” Nicely said.
The prosecutor also noted that the federal agency has confidentiality and security concerns, being that the lab could potentially have other top-secret material there and national security investigations conducted at the same time as this case.
“They would have to completely change the way they do their lab, put evidence from other cases away, or they’d have to leave that other evidence out there for defense experts to see,” Nicely said. “I would argue that neither of those is acceptable. I’d say that there would be nothing that they would gain from this that they wouldn’t from the video.”
Kingsberry argued the defense expert is “well known” and “well respected” to the ATF and the parties have had many cases together. The expert also has an office in Washington, D.C., “down the street” from the ATF lab where the re-enactment would take place, he added.
“I think there is no reason to not allow a defense expert to passively observe,” Kingsberry said. “It’s not fair and it’s not necessary for us to have to deal with this. And I don’t want to come back to the court and use the tax payer money for another test. It’s not necessary. It is a waste of judicial and law enforcement resources of this state.”
Superior Court Judge Phyllis Gorham agreed with the State and denied the motion. Another hearing in the case was not set in court Thursday. Doran remains at the New Hanover County Jail without bond.
Read previous coverage:
- N.C. troopers say two men killed by hit-and-run driver as they tried to help trucker (The News & Observer)