PEOPLE OF THE STATE OF MICHIGAN v. KAREN SUE BOES
No. 366916
STATE OF MICHIGAN COURT OF APPEALS
July 22, 2025
UNPUBLISHED
9:30 AM
Ottawa Circuit Court
LC No. 02-026455-FC
Before: BOONSTRA, P.J., and REDFORD and MARIANI, JJ.
PER CURIAM.
Defendant appeals by delayed leave granted the trial court‘s order denying her successive motion for relief from judgment under
I. PERTINENT FACTS AND PROCEDURAL HISTORY
In 2003, defendant was convicted, after a jury trial, of first-degree felony murder,
Defendant‘s conviction arises from the death of her fourteen-year-old daughter, who died of smoke inhalation from a fire at their home. At trial, the prosecution presented evidence that the fire was fueled by an accelerant, such as gasoline; that it started in the hallway outside the victim‘s bedroom; and that the victim could not have started the fire and then retreated back into the bedroom where she died.
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In the instant case, the two expert witnesses presented by the prosecution agreed that the fire started in the hallway, rather than the victim‘s bedroom, and
that the fire was necessarily fueled by an accelerant. They explained their positions in detail and specifically testified that the fire was not accidental. Although no evidence of an accelerant was discovered in the hallway, all of the expert witnesses, including one presented by defendant, acknowledged that a fire might consume all traces of an accelerant. All of the experts searched for accidental causes of the fire, but none were found. With regard to defendant‘s responsibility for the fire, the evidence indicated that only defendant and the victim were in the house at the relevant time. Defendant told witnesses that the victim was sleeping when she left the house at 8:55 a.m. and that she had entered the victim‘s bedroom and kissed her goodbye before leaving. A passerby who noticed the fire called 911 five minutes later. Several weeks before the fire, defendant told her husband that a gas can, which was ultimately found in the victim‘s bedroom, was missing. Traces of gasoline were found on a chair in the master bedroom that defendant occupied by herself. Moreover, the evidence showed that gasoline was poured around the victim‘s bedroom and an accelerant was used in the hallway outside the room, where the fire started. One of plaintiff‘s experts testified that the victim could not have started the fire in the hallway and retreated back into her room.
Furthermore, during police interviews and when speaking to her husband, defendant stated that she “could have” started the fire. She told numerous different versions of the events, and several witnesses heard her declare her hatred of the victim before the fire. Defendant also admitted that she had a violent streak directed toward the victim, and that she was upset on the morning of the fire. Moreover, within a week after the victim‘s funeral, defendant joked that she would be in jail. [Boes, unpub op at 1, 4 (Docket No. 248289).]
The prosecution‘s two expert witnesses who testified as to the fire‘s origin were Special Agent Mike Marquardt and Dr. John De Haan. Both experts provided extensive testimony concerning their belief as to the fire‘s origin. Both experts opined that the fire had started in the hallway and spread to the victim‘s bedroom, where the ignition of gasoline vapors in a confined area caused a “deflagration,” essentially a buildup of pressure from burning gasses, that pushed the door to the bedroom closed and caused the corner of the house‘s roof to briefly lift. Both experts testified that they had not found any probable sources of ignition in the hallway, nor had any traces of ignitable liquids been discovered in the hallway; further, the hallway did not appear to contain a sufficient “fuel load” in the form of burnable materials to cause a fire of the duration and intensity that resulted. Both experts testified to their conclusion that a flammable liquid had been dispersed intentionally in the hallway. Defendant presented the testimony of an expert witness, Adolf Wolf, who opined that the fire had started in the victim‘s bedroom.
Video recordings of defendant‘s interviews by law enforcement on July 30, August 7, August 13, and September 12, 2002 were played for the jury. Transcripts of those interviews with inadmissible information redacted were entered into evidence. Defendant testified and denied starting the fire; she testified that police investigators had convinced her that she could have gone insane and started the fire.
In 2006, defendant filed a motion for relief from judgment in the trial court. The trial court denied that motion in 2008. Defendant applied to this Court for delayed leave to appeal, which was denied. People v Boes, unpublished order of the Court of Appeals, entered March 19, 2009 (Docket No. 290345). Our Supreme Court denied defendant leave to appeal this denial. People v Boes, 485 Mich 974; 774 NW2d 903 (2009). The United States District Court for the Eastern District of Michigan denied defendant‘s petition for a writ of habeas corpus in 2013. See Boes v Warren, unpublished opinion of the United States District Court for the Eastern District of Michigan, issued October 3, 2013 (Case No. 2:09-CV-12279).
Defendant filed a successive motion for relief from judgment in the trial court in 2021. In her successive motion, defendant argued that she was entitled to relief from judgment based on newly discovered evidence involving (1) the validity of the expert testimony given by the prosecution‘s fire origin and causation experts and (2) the validity and admissibility of her statements to police made during her interrogation. In support of her motion, defendant provided a report from a proposed expert witness, John Lentini, a certified fire investigator, indicating that since defendant‘s trial, the “negative corpus” method, by which a fire investigator determines that an ignitable liquid must have been present despite a lack of physical evidence, was no longer recommended for use in fire investigation; additionally, Lentini‘s report discussed changes in the analysis of burn patterns in “flashover” fires. Defendant also provided evidence that Dr. De Haan had resigned his membership in the American Academy of Forensic Sciences (AAFS) in 2015, following an internal investigation in which the AAFS Ethics committee found that Dr. De Haan had acted unethically while testifying as an expert witness in 2008. Defendant also provided the report of another proposed expert witness, James Trainum, a former homicide detective and current consultant in the field of police practices and interrogation, opining that there had been a shift in scientific consensus regarding the understanding of false confessions and the validity of interrogation techniques used by law enforcement in interviewing defendant.
In response, the prosecution provided the reports of two proposed expert witnesses. Jamie Lord, a fire protection engineer and instructor in fire dynamics, fluid dynamics, and fire protection systems, opined in his report that Lentini had incorrectly concluded that major changes to the field of fire investigation had occurred since defendant‘s trial. Dr. Matthew DeLisi, Ph.D., opined in his report that Trainum had incorrectly characterized advances in the study of interrogation techniques and false confessions as new scientific evidence or consensus.
The trial court denied that motion without an evidentiary hearing in 2023. Regarding defendant‘s fire origin evidence, including the evidence regarding Dr. De Haan‘s resignation from the AAFS, the trial court found defendant had shown the existence of newly-discovered evidence. However, the trial court found that the introduction of this evidence would not make a different result probable on retrial. Regarding defendant‘s false confession evidence, the trial court held that defendant had not established the existence of newly-discovered evidence. Defendant applied to this Court for delayed leave to appeal that denial, which this Court granted “limited to the issues raised in the application and supporting brief.” People v Boes, unpublished order of the Court of Appeals, entered February 28, 2024 (Docket No. 366916).
This Court reviews for an abuse of discretion a trial court‘s decision on a motion for a new trial (including a motion for relief from judgment seeking a new trial). See People v Johnson, 502 Mich 541, 564; 918 NW2d 676 (2018), citing People v Cress, 468 Mich 678, 692; 664 NW2d 174 (2003). A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes. Id.
This Court reviews for clear error a trial court‘s factual findings. Id. “Clear error occurs if the reviewing court is left with a definite and firm conviction that the trial court made a mistake.” Id. at 565 (quotation marks and citation omitted). “[A]ppellate courts need not refrain from scrutinizing a trial court‘s factual findings, nor may appellate courts tacitly endorse obvious errors under the guise of deference.” Id., quoting People v McSwain, 259 Mich App 654, 683; 676 NW2d 236 (2003) (quotation marks and citations omitted).
III. ANALYSIS
Defendant argues that the trial court abused its discretion by denying her successive motion for relief from judgment without holding an evidentiary hearing. We agree.
A. GENERAL LEGAL PRINCIPLES
A successive motion for relief from judgment is governed by
In order for a new trial to be granted on the basis of newly discovered evidence, a defendant must show that:
“(1) the evidence itself, not merely its materiality, was newly discovered; (2) the newly discovered evidence was not cumulative; (3) the party could not, using reasonable diligence, have discovered and produced the evidence at trial; and (4) the new evidence makes a different result probable on retrial.” [Johnson, 502 Mich at 566, quoting Cress, 468 Mich at 692 (quotation marks and citations omitted).]
B. FIRE ORIGIN EXPERT WITNESS TESTIMONY
In her successive motion for relief from judgment, defendant argued that a new scientific consensus on fire investigation had occurred since her trial, specifically in the area of burn pattern analysis and the use of “negative corpus” evidence and the process of elimination; additionally, defendant argued that newly-discovered evidence cast doubt on Dr. De Haan‘s credibility as an expert witness. The trial court held that defendant had satisfied the first three Cress factors. However, the trial court held that defendant had failed to show that a different result was probable at retrial. See Cress, 468 Mich at 692.
We conclude that the trial court abused its discretion by denying defendant‘s successive motion for relief from judgment without holding an evidentiary hearing. See Johnson, 502 Mich at 566-567. The trial court‘s holding was based primarily on its finding that Lentini‘s report was “not particularly credible” for several factual reasons: (1) that Lentini‘s opinion that a flashover fire had occurred contradicted Marquardt‘s and Dr. De Haan‘s opinions that a flashover fire had not occurred, (2) that Lentini‘s report did not discuss deflagration or mention a roof separation, and (3) that Lentini‘s report did not discuss the victim‘s bedroom door. The trial court also found that Marquardt and De Haan were credible experts who had appropriately determined that an ignitable liquid must have been used in the hallway. The trial court also found, regarding Lord‘s report, that the prosecution had presented “a credible expert that has clearly reviewed the whole of the evidence and offered an opinion supportive of De Haan and Marquardt‘s.”
The trial court exceeded its gatekeeping role by prematurely denying defendant‘s motion without an evidentiary hearing. The trial court did not make an initial determination regarding whether Lentini‘s report was “patently incredible” and, if not, “what a reasonable juror might make of the testimony” at retrial. See Johnson, 502 Mich at 568. Rather, the trial court substituted itself as the ultimate fact-finder. Id. Moreover, the trial court found, without much explanation, that Marquardt and Dr. De Haan were credible witnesses; however, the judge presiding over defendant‘s successive motion for relief from judgment was not the judge who had presided over
Our conclusion is bolstered by the fact that the trial court found that defendant had also presented newly-discovered evidence regarding Dr. De Haan‘s resignation from the AAFS after an ethics investigation and finding that he had acted unethically while testifying as an expert witness for the prosecution. Although the trial court quoted our Supreme Court in stating that “[n]ew impeachment evidence is particularly significant when the only evidence that an offense was ever committed was largely based on the testimony of an individual whose credibility might be put into question,” see People v Barbara, 400 Mich 352, 363-364; 255 NW2d 171 (1977), it concluded that this new evidence did not qualify because Marquardt provided “credible testimony” similar to De Haan‘s. Again, the trial court did not determine if the new evidence was “patently incredible” or what a reasonable juror might make of the evidence. See Johnson, 502 Mich at 568. Additionally, the credibility of Marquardt‘s testimony, and his possible testimony on retrial, was simply assumed. Finally, the trial court did not consider the effect at retrial of the newly-discovered evidence regarding De Haan in conjunction with defendant‘s other newly-discovered evidence. Rogers, 335 Mich App at 197. An evidentiary hearing would have allowed resolution of these issues.
C. FALSE CONFESSION EXPERT WITNESS
Prior to trial, defendant moved to suppress her statements to police on the grounds that they were not voluntarily-made. The trial court denied the motion. Defendant subsequently moved to present expert testimony from a psychologist regarding defendant‘s emotional state during the interrogation and her susceptibility to suggestion from her interrogators. The trial court permitted the psychologist to testify regarding defendant‘s psychology in general, but ruled that she could not testify that defendant‘s psychological “profile or make-up” caused her to act a certain way or answer questions a certain way, or that defendant was acting in conformity with “any condition she might have” when she gave her statements to police. In light of this limitation, defendant opted not to present the expert‘s testimony. Defendant raised the issue of the denial of her motion to suppress on direct appeal, but did not raise the issue of the trial court‘s limitation of her expert witness and testimony regarding false confessions. See Boes, unpub op at 3.
In her first motion for relief from judgment, defendant offered the testimony of the psychologist who testified at the hearing on defendant‘s suppression motion, stating that the psychologist would have testified regarding defendant‘s emotional state and passivity, and how her nature and emotional state would have made her feel like she was not free to leave and rendered her vulnerable to suggestion from her interrogators. The trial court held that defendant had not
In his report that accompanied defendant‘s successive motion for relief from judgment, Trainum opined that the August 7, 2002 and September 12, 2002 interviews were “accusatory interrogations” in which the investigators used techniques that could lead to false confessions. Trainum further opined that a consensus view by “researchers and leading interrogation schools” regarding these tactics and their likelihood of causing false confessions arose after 2006 (when defendant filed her first motion for relief from judgment). The prosecution provided a report from an expert witness, Dr. DeLisi, who opined that “[n]othing in the research from 2006 onward has demonstrated how police interrogation practices contribute to false confessions or that [defendant] offered a false confession, or how.”
The trial court held that defendant had not demonstrated that the evidence she offered regarding false confessions constituted newly-discovered evidence, noting that “false confessions have been a well-known phenomenon for decades” and concluding that defendant had not demonstrated “actual changes in evidence or consensus” in this area since 2006. Accordingly, the trial court held that defendant had failed to satisfy
While a closer question, we conclude under these particular circumstances that the trial court should have conducted an evidentiary hearing before making its ultimate determination regarding defendant‘s false-confession evidence. As the prosecution does not meaningfully dispute on appeal,2 defendant‘s motion as to this topic is “based on ‘a claim of new evidence.‘” Johnson, 502 Mich at 566, quoting
We conclude that the trial court abused its discretion by denying defendant‘s successive motion for relief from judgment without holding an evidentiary hearing. Johnson, 502 Mich at 564. Accordingly, we vacate the trial court‘s order and remand for an evidentiary hearing.3 We do not retain jurisdiction.4
/s/ Mark T. Boonstra
/s/ Philip P. Mariani