I.

A.  DOVE’S RECENT RECANTING AFFIDAVIT THAT WILLIS HAD NOTHING TO DO WITH THE FIRES AND THAT THE 2008 FIRE WAS AN ACCIDENT, IS CONSISTENT WITH DOVE’S EARLIER STATEMENTS AND THE PHYSICAL EVIDENCE.

B.  THE AFFIDAVITS OF VALERIE WILLIAMS AND WALTER COLLIER, AND STATEMENT OF NIKENO BURTON ALSO SUPPORT DOVE’S RECANTATION.

C.  DOVE’S TESTIMONY AT TRIAL WAS SO CONTRADICTORY, INCONSISTENT, AND CONTRARY TO THE PHYSICAL EVIDENCE TO BE INHERENTLY UNRELIABLE. DOVE’S FALSE TESTIMONY LED TO WILLIS’ CONVICTION.

     The prosecution’s key witness and only eyewitness to the fire(s) was the co-defendant Darian Ivan Dove. At trial, Dove told the jury that Willis wanted him to start a fire and put it out (“just a little burn”) for insurance money (Tr., Vol. II, pg.47).1 Dove said he previously started a fire at the Kirby house for Willis in September of 2007 (id., pg. 7-48). He also testified that Willis picked him up at his house to go set the fire in 2008 and drove together to the Kirby house (Tr., Vol. III, pg. 59, 66-67). Once there, while Willis stayed at the corner nearby, Dove said he entered the house with a gas can and started the fire (id., pg. 67-70).

​
 

1Trial was held on April 19, 20, 21, 22, 26, 27, 28 and 29 of 2010 and are identified as Volumes I through VIII, respectively.

 

POST-CONVICTION/NEW EVIDENCE

•    In a post conviction sworn affidavit, Dove states that Mario Willis had nothing to do with the fire for which he was convicted, that Willis did not pay him anything for any fires at the Kirby house, that the11/15/2008 fire was an accident, and that he repeatedly told investigators it was an accident. Dove states that he only adopted the investigators theory that Willis paid him for the fire so Dove would be “forgiven” and his fear of being charged (Exhibit A, Affidavit, dated 03/26/2014). This affidavit is consistent with Dove’s several earlier statements to investigators in 2009. This affidavit exposes Dove to either a trial on first degree murder or a perjury/obstruction charge that also carries life in prison.2

•    The affidavit of Valorie Ann Williams, Dove’s live-in girlfriend, supports Dove’s recantation. Williams states Willis did not pick up Dove on the night of the fire or return him to their house on Strathmoor.  Ms. Williams contradicts Dove’s testimony at trial that Willis picked him up the morning of the fire at their house to go to the Kirby property to seta fire. Of significance, Ms. Williams states that when the detectives came to the house to talk to him in 2009 (the Shea/Sullivan recorded statement on July 1, 2009, Appendix, Transcript, Exhibit M). Dove told Williams “to lie if they ask about anything that happened on November15, 2008” and to “lie about my (Williams) name.” (Exhibit B, Affidavit, dated 04/17/2014).

•     Investigators Shea and Sullivan were well aware of Ms. Williams and that she lived with Dove.3 In fact, both investigators spoke with Williams during the Penrod interview of Dove. Knowing that Dove had claimed Willis picked up Dove and dropped him off at their Strathmoor

 

2The Michigan Court of Appeals had rejected a five-page handwritten statement dated
June 7, 2010, purportedly written by Dove, that recanted his trial testimony, as a basis for a
remand to further develop the factual basis for a new trial (Appendix, Exhibit C). The appellate
court declined to consider the statement, in part, because it was not an affidavit.

3Both investigators met Ms. Williams at the Penrod house when they secretly taped an
interview with Dove. Dove talked about Ms. Williams then and also at the time of his first
arrest, informing them they lived together on the night of the fire.

house, they never questioned or took a statement from her (Transcript of recorded interview with Dove, July 1, 2009, pg. 3, wherein Ms. Williams asks the investigators “what’s going on.” “Why y’all wanna talk to him” (Appendix, Exhibit M).

•     The affidavit of Walter Collier, dated July 6, 2010, wherein Collier swears, that while an inmate at the Wayne County Jail, Dove told him he was with a female, that the fire was an accident and he testified against Willis to get back at him for giving his name to the police (Appendix, Affidavit of Walter Collier, dated July 6, 2010, Exhibit D).

•     This sworn statement by Collier is consistent with a statement by Nikeno Burton, dated June 3, 2010, also an inmate. Burton knew Dove from the neighborhood. Dove told Burton he was at the house with a female, they were getting high and he made a mistake by starting a fire. They called 911 and left (Appendix, Statement of Nikeno Burton,06/03/2010, Exhibit E).4
 

•     The Presentence Investigation Report of Dove contains a signed statement by Dove wherein he described the incident. In his PSI interview on November 5, 2009, he said Willis actually set the fire. “Mario came inside the house shortly after I poured the flammable liquid all around the house, he asked me, “What’s taking you so long? I stated to him that I could not do it. That’s when he snatched the lighter from me stating, “Your dumb ass can’t do anything right” and set the house on fire. We both ran out of the house.” (Exhibit F, PSIR, Darian Dove).

This new evidence should be examined in the context of Dove’s statements to the investigators, and his sworn testimony at the preliminary examination and trial. That review exposes a witness whose explanation of what happened and testimony was 4The Michigan Court of Appeals mentions this statement by Burton merely in passing.
 

so contradictory and inconsistent, that the prosecutor’s case, in light of the new evidence, is hardly compelling.

 

1.  WILLIS TELLS LAW ENFORCEMENT ABOUT DOVE AND THE 2007 FIRE.

 

•     Initially, it is important to note that it was Willis who disclosed the name of Dove to fire investigators and law enforcement on November 19,2008 that led to their investigation of Dove (Tr., Vol. V, pg. 53). Willis would not have done this if he and Dove had conspired to set the fire.
 

•     It was Willis who first disclosed the 2007 fire, only four days after the November 15, 2008 fire. Since there was no evidence of an arson investigators did not pursue this, until Dove, for the first time, told investigators he set the fire as an arson for Willis. Dove did not tell investigators about the 2007 fire until just days before trial.
 

 

2.  DOVE DENIED BEING INVOLVED IN THE 2007 FIREUNDER OATH, THEN CHANGED THIS JUST DAYSBEFORE TRIAL TO GIVE FALSE AND UNCORROBORATED TESTIMONY.
 

 

•     At the preliminary examination, Dove was asked, “Q. In fact you had done work at the Kirby house on another fire, correct? Wasn’t that house damaged by a fire a couple years ago? A. Okay, I don’t know nothing about that” (emphasis added) (PET, Vol. I, pg. 114).
 

•     At trial, Dove testified that prior to trial he had not told anyone of the first alleged arson fire in 2007 (Tr., Vol. III, pg. 112).
 

•     P.O. Shea testified that they had no information regarding the prior fire being an arson until Dove wrote a letter on March 26, 2010 to Judge Parker, just days before the trial (Tr., Vol. V, pg. 51-52). In this letter, Dove explains why he is writing to Judge Parker. Dove was upset because Willis posted a bond and Dove had been in jail for over nine months, saying “I don't like way the law ran hear.”
 

•    On April 19, 2010, just before jury selection, the assistant prosecutor informed the trial judge of his intent to use the 2007 fire to prove motive in the November 2008 fire (Tr., Vol. I, pg. 3-4). Defense counsel informed the court he had no discovery that Dove claimed the 2007 fire was an arson (id., pg. 6). The trial judge allowed the prosecutor to present Dove’s completely uncorroborated and false testimony.
 

•    The only evidence presented regarding an arson in 2007 came from Dove.
Yet these facts did not stop the prosecutors from eliciting false and perjured testimony before the jury from Dove about the 2007 fire.
 

​

3.  DOVE REPEATEDLY TOLD INVESTIGATORS HE WASWITH FELICIA WHEN THE FIRE HAPPENED, NOTWILLIS.
 

​

•     On November 15, 2008 at 5:09 a.m., Dove called 911 asked for firetrucks and reported a garage fire at Sheridan and Kirby. A female was present and also spoke to the 911 operator. The female told the operator“ Here they come” and Dove repeated, “They’re here” in reference to the fire trucks. (Exhibit G, 911 Call Transcript). Dove identified the person with him as Felicia (Tr., Vol. V, pg. 6). Dove testified that he and Felicia went to high school together, but did not know her last name (id.pg. 7). When the police asked for Felicia’s last name, he would not give it to them (Tr., Vol. V, pg. 54-55).
 

•     In his initial recorded interview with law enforcement, Dove said he was with Felicia on the night of the fire when it happened and that she drove him there in a white Sebring (Taped Interview at 1:54 p.m.; Signed Statement on 06/09/09,5 pg. 3).
 

5Dove gave three recorded interviews to investigators on June 11 and July 1, 2009. None
of these interviews were transcribed for trial. Instead, the prosecutor used a June 9th written
statement only, to “refresh” Dove’s memory for a bind over at the preliminary examination (PET,
Vol. I, pg. 58-60, 95-100).
 

•     In a secretly taped interview on July 1, 2009 at the Penrod house where Dove subsequently lived, Dove confirmed he was with Felicia. Dove told Officer Sullivan that he tried to put the fire out and it got out ofhand, that “I was with Felicia. Remember the chick I told you about . ..” “You heard that on the dispatch.” When Sullivan asked, “is that who was with you?” Dove answered “Yes” and said “She don’t know that, ”referencing Dove’s fiancé, Ms. Williams (Appendix, Exhibit J, pg. 17-18). Dove said when he left the Kirby house, he “went to the car with Felicia – the white Subur–Sebur–what do you call it?” . . . Sabor-S-U-that new Dodge they got. It’s all white” . . . “It’s a car. Remember I told you it’s a car. It’s a Sahring . . .Sebring . . .” (id., pg. 17). Sullivan asked again, “now was she there?” Dove replied “She was there” (id., pg. 17-18).
 

•     At trial, Dove confirmed he would take women, including Felicia, over to the house and would start a fire (in a coffee can) to keep warm, but denied she was there when the fire started (Tr., Vol. III, pg. 147-148).
 

​

4.  DOVE REPEATEDLY TOLD INVESTIGATORS THATTHE FIRE WAS AN ACCIDENT.
 

​

•      In his initial recorded interview with law enforcement on June 9, 2009,that lasted five hours, from 10:30 to 3:30 p.m., Dove repeatedly denied any involvement in the fire for the first three hours and twelve minutes(Tr., Vol. III, pg. 134). Dove then said he was with Felicia on the night of the fire and the fire was accidentally started when they tried to stay warm (Taped Interview 1:07-1:16 p.m.).
 

•      In a recorded interview on June 11, 2009, Shea and Sullivan told Dove that they had an issue, although they were “95 percent there,” because the State Police lab said it was gasoline and not the mixture Dove previously said that was used to start the fire (Appendix, Exhibit I, Transcript of Recorded Interview of Dove). Dove quickly adopted their version adding he had gasoline in one of the bottles, and his foot must have kicked it over (id., pg. 6-7). Dove explained he had gloves on and poured gasoline from a can into a water bottle (id., pg. 8). The concoction Dove made was like a “bomb” and would burn faster than gasoline(id., pg. 12). Dove said gasoline accidentally was knocked on the floor, four feet from the railing of the stairs (id., pg. 14-16, 38). Dove repeated, he did not pour the gasoline, but kicked it over by accident (id., pg. 39). Dove said he was not trying to ignite the gas “but my feet kicked it” and he tried to put it out (id., pg. 7-8). Dove repeated he brought three bottles of liquid to the Kirby house, once contained dishwashing soap, lighter fluid and ammonia and bleach, one contained water and one contained gasoline (id., pg. 37). Dove described this accidental fire in detail.
 

•      In the July 1, 2009 secretly taped interview, Dove again said he started the fire with a concoction of “Lighter fluid, detergent, ammonia and bleach” that he kicked over (id, pg. 11-12, 16).
 

​

5.  DOVE CHANGED HIS STORY AT THE URGING AND LIES OF THE INVESTIGATING OFFICERS.
 

​

•     During the interview, Dove did not implicate Willis until the police told him that the reason he was being questioned was because Willis had told on him and set him up, something that was completely false (Tr., Vol. III, pg. 135). Detective Shea confirmed that they told Dove that Willis had set him up (Tr., Vol. V, pg. 58).
 

•     It took the police three hours and twelve minutes to get Dove to implicate Willis (1:49 p.m. on the tape).6 While Dove remained in the interrogation room, the interrogating officers, Shea and Sullivan took several breaks, eating and drinking. They suggested it was Willis, who was rich, had ordered Dove to set the fire for insurance money, and that Willis was the most culpable.
 

•     While Dove emphatically told Detective Sullivan the fire was an accident and explained in detail how it happened, Sullivan laid the seeds for Dove to turn on Willis. Sullivan told Dove, “how important it is that the right blame be put on the right person” and told Dove to stay away from Willis because he is “bad news” and has a “CCW permit.” After Dove told Sullivan that he “spilled his guts,” Sullivan told Dove that Willis is scared of him “Because who’s to blame for this – this whole mess? and it’s a high profile case. A firefighter gets killed right?” Sullivan told Dove that Willis is “somebody that’s above the system ”,“ works these guys like dogs; that controls your money”, and that Willis doesn’t care about him (Exhibit I, Recorded interview of Dove,06/11/2009).

6At trial, the prosecutor used the 1:49 time incorrectly to say that Dove came clean one
hour and forty-nine minutes into the interview (Tr., Vol. II, pg. 32). 1:49 is the time of day and
1:49 minutes into the tape was 12:25 p.m.
 

​

​

6.   DOVE TOLD INVESTIGATORS AND TESTIFIED UNDEROATH PREVIOUSLY THAT HE KNEW NOTHINGABOUT WHY WILLIS WANTED TO SET A FIRE AND HEWAS NOT PAID FOR AN ARSON.
 

​

•     Dove repeatedly told investigators that the fire was not an arson for profit.
 

•     At the preliminary examination, Dove said he did not know anything about Willis being behind in payments or why he wanted a fire regarding Kirby (PET, Vol. I, pg. 57). When questioned by prosecutors, Dove testified he did not know why Willis wanted to start a fire at the Kirby house (id). When asked who told him to set the fire, he responded“ I guess Mario” (PET, Vol. I, pg. 55).
At trial, the prosecutor elicited contradictory and perjured testimony that the fire was set for insurance money because Willis was late on mortgage payments (Tr., Vol. III, pg. 47, 54).
 

•     Dove also testified at the preliminary hearing there was no discussion about being paid for the fire, just that he asked Willis for $20 because“ money was never discussed” (PET, Vol. I, pg. 62, 136).
 

•     By the time Dove was before the jury, he changed his story saying his payment was “a nice truck” and money in his pocket (Tr., Vol. III, pg.65).
 

​

7.  ATTEMPTS TO GET INCRIMINATING STATEMENTSFROM WILLIS IN A SURREPTITIOUS PHONE CALLFROM DOVE PROVES WILLIS’ INNOCENCE.
 

​

•     A surreptitious recorded phone call, initiated by the police between Dove and Willis on June 9, 2009, reveals Dove lying about being in Grosse Pointe after being released allegedly dealing with traffic tickets(he was in custody in Wayne County being interrogated). Dove says the police are asking about a fire and that “some people got my name ove rthere (at the fire).” Dove says he had nothing to do with the fire and Willis agreed saying, “I called Sean and I was talking to him to find out what’s going on?” When Dove asks Willis what he (Willis) wants him to tell the police, Willis responds “you don’t know what the hell they talking about, I mean, which you really don’t, hell” . . . I don’t know what they talking about” . . . best thing you do is . . . like I say, call a lawyer.” (Appendix, Exhibit H, Transcript of June 9, 2009 Interview of Dove). At trial, contrary to this, Dove testified that Willis told him, that he (Willis) would get a lawyer for him (Tr., Vol. III, pg. 97-98).
 

•     In this recorded call, when Dove says he is getting nervous, Willis responds, “only time you get nervous is when you had something to do with something”. . . Tell the truth always.” Willis adds, “But like I say, I mean ain’t got nothing to do with nothing. Tell the truth always.” Dove then says, “What if somebody saw me that morning?” and Willis responds, “I don’t even know what you talking about, Dog, adding, “I don’t know nothing going on with that house.” When Dove returns to asking Willis, “I need to know what the hell to say.” Willis responds,“ The truth, shit, hell. What you mean what to say, nothing. You said that like you trying to make something up.”
This surreptitious attempt by the police to use Dove to get Willis to incriminate himself ended in proof of Willis’ innocence.
 

8.  DOVE GAVE CONTRADICTORY STATEMENTS ANDTESTIMONY ABOUT PAYING FOR GAS AND WHEREHE ALLEGEDLY POURED IT.

 

•     At trial, Dove initially testified that Willis put “Twenty five and seven dollars” of gas in a can at the gas station (Tr., Vol. III, pg. 66). Subsequently, when asked by the judge how much gas was purchased, Dove said 5 to 7 dollars worth in a ten gallon can (Tr., Vol. IV, pg. 14). In his June 11, 2009 interview, Dove said Willis bought “a dollar worth-maybe $1.50” of gas (Appendix, Exhibit I, pg. 41).7
 

•     At trial, Dove testified he poured gasoline not on the second floor where firefighters located the fire, but on the third floor in the “upstairs attic” and that he poured the gasoline between the joists and ignited it (“it was poured in five different slots”) (Tr., Vol. III, pg. 74-77). The prosecution’s arson expert testified that the gasoline was poured along the south wall on the second floor (Vol. II, pg. 70-73).
 

•      Dove previously told investigators that he did not use gasoline, but used a lighter fluid, ammonia detergent and a bleach mix in separate bottles to start a fire (Taped Interview of Dove at 1:54 p.m.; Tr., Vol. III, pg.142-144; Signed Statement on 06/09/09, pg. 3).

​
 

9.  DOVE LIED UNDER OATH ABOUT HIS PRIORCRIMINAL RECORD.

​
 

•     When asked at the preliminary examination if he had been convicted of any felonies or misdemeanors involving theft, fraud or false statement, specifically retail fraud or receiving and concealing stolen property, Dove answered “No” repeatedly (PET, Vol. I, pg. 111). In fact, Dove had been convicted of third degree retail fraud in 2001 in Warren, in2005 in Harper Woods and larceny in a building in 2002 (Tr. Vol. III, pg. 120-121). Dove had also been convicted of receiving and concealing stolen property and breaking and entering (Tr., Vol. III, pg. 61). Knowing what Dove had denied at the preliminary examination, the prosecutor at trial unabashedly asked this about his criminal record:
 

 

Q. You don’t hide that from anybody, do you?
A. No, well you’re asking the question, I’m giving it to you.

7At the preliminary examination, Dove testified he kept gasoline upstairs for maintenance
on the property (PET, Vol. I, pg. 50).
 

Q. Okay. I’m asking, okay. So you didn’t hide that from anybody, did you?
A. No, no. (Tr., Vol. III, pg. 61) (emphasis added).

 

Prosecutors charged Dove alone with the homicide and arson. Dove pled guilty on November 3, 2009 with a deal to avoid a life sentence. It was only after Dove’s deal with prosecutors, that Willis was charged in a separate complaint and warrant.
Before trial Dove wrote his presiding judge, saying he wanted to withdraw his plea, wanted a new attorney and a jury trial.8
 

 

II.  THE LEAD INVESTIGATOR AND PROSECUTOR MISLED THE JURY ABOUT THE ALIBI DEFENSE AFTER SUPPRESSING EVIDENCE.
 

​

•     Ms. Willis (nee Daniel) testified at trial, on behalf of the defense as Willis’ only alibi witness. On November 15, 2008 she and Mario went out for date night and returned home thereafter. Willis then left for 10to 12 minutes to purchase her a pack of clove cigarettes (Tr., Vol. V, pg.87-89).
 

•     She informed the prosecution she told police and arson investigators on November 19, 2008 (4 days after the fire) exactly what she testified to in court. They went out for a date then returned home sleeping next to each other (Tr., Vol. V, pg. 121-122).
 

•     Willis testified when he was initially interviewed by police, he told them the night of November 14th and the morning of the 15th was his and Ms. Willis’ date night. They went to dinner and a movie, returned home where after he left to purchase a pack of D’jarums cigarettes from a local gas station then returned home (Tr., Vol. VI, pg. 84-85).

8Dove had pled guilty to the reduced charge of second degree murder with a minimum
sentence of 19 years in exchange for his testimony against Willis.

​
 

•     Willis testified Ms. Willis told investigators Shea and Sullivan their whereabouts on the night of the fire. Willis testified Shea knew of their whereabouts because he provided the details to him (Vol. VI, pg. 111-112).
 

•     In rebuttal, Shea testified that Ms. Daniel did not tell him she was an alibi witness for Willis and never indicated she knew Willis’ whereabouts on the night of the fire (Tr., Vol. VII, pg. 8). Additionally, Shea testified that the alibi “never came up until I heard about it the other day” in court, claiming he “reviewed the entire file” and found nothing about an alibi (id., pg. 9) This was false.
 

•     In his closing argument, the assistant prosecutor told the jury that the alibi notice did not come until April 6th, just before trial “Because they didn’t develop that alibi until around that date” (Tr., Vol. VII, pg. 30). In other words, the alibi was a last minute concocted defense. This was not true.

​
 

POST-CONVICTION/NEW EVIDENCE
SUPPRESSED EVIDENCE
 

 

Pursuant to an Order for Discovery, the prosecutor’s office provided a list of discovery items on November 5, 2009 (Appendix, Exhibit G and H). The order included disclosure of all statements of the Defendant, whether they were recorded or reduce to writing. See also, MCR 6.201(B)(1) and (3) requiring disclosure of exculpatory evidence and any written or recorded statement by the defendant. Of significance, the list includes a DVD, identified as “HF/08-367 Megan Daniel; P.O. Scott Shea, 9:39:10, 3:04:07; ET #32907304; DNL by Sgt. Davis.” Unknown to the defense, this DVD also contained an interview between Willis and Lt. Sims. That critical interview does not show up on the DVD until approximately one hour at the end of Megan Daniel’s interview. It was first discovered in July, 2010 by Marvin Willis (Appendix, Exhibit L, Affidavit of Marvin Willis).
 

•     In this recorded interview with Lt. Sims on June 10, 2009, which was transcribed by the defense after trial, Sims references and earlier interview, saying “You remember what you told me, right? You went out for cigarettes; you remember that?” to which Willis responds, “I remember that” (Appendix, Exhibit X, Transcript of June 10, 2009Interview, pg. 9, 31). When Willis tells Sims he believes he went out with Megan that night, Sims responds, “I remember you told me “y’all went out that night, you had dinner or something” to which Willis responds “Yeah, that was our date night, yeah (id., pg. 17).
 

•     In the transcript of the video recording interview of Willis on June 10,2009 by Shea and Sullivan, Sullivan tells Willis that “Megan told us what you did; she remembered it” to which Willis acknowledges, “I think we went out.” Cause, we have our little date night”, although he was not sure (Appendix, Exhibit W, Transcript of June 10, 2009 Willis Interview).9
 

•     The transcript of the video recorded interview of Ms. Daniel on June 10,2009 with Detectives Shea and Sullivan shows Shea gave false testimony to undermine the defense. In that interview, Megan told the detectives, in response to their question where Mario was on November15, 2008, that she went to the movies with Willis and once they returned he left to get her a pack of D’jarum clove cigarettes, for ten to twelve minutes, and Willis was home with her that night (Appendix, Exhibit V, Transcript of Recorded Interview, dated 06/10/2009).

Shea and the investigators knew about the alibi in multiple interviews with both Ms. Daniel and Willis.

9The cover sheet of the transcript mistakenly indicates the interview was June 15th.
 

III.   A FORENSIC REVIEW OF THE PHYSICAL EVIDENCE IS CONSISTENT WITH AN ACCIDENTAL FIRE. THE PROSECUTOR’S FIREEXPERT MISLED THE JURY AS TO WHERE GASOLINE WAS FOUND.
 

 

•     In statements to the police and at the preliminary examination, Dove repeatedly said the fire was an accident when he kicked over a gas can or bottle. Once the fire started, he unsuccessfully tried to put it out. In fact, Dove specifically told investigators he did not put accelerants on the walls (Appendix, Exhibit M, pg. 14-15, 21).

•     The prosecution’s expert, Lt. Rance Dixon, testified at trial, that the fire originated along the southeast and southwest wall. However, the samples taken from the scene and tested by the Forensic Division of the Michigan State Police, showed that the only debris that tested positive for gasoline were “pieces of charred floor boards”, consistent with Dove’s statements that the fire originated by accident. Dixon took three wood samples from the floor (Tr., Vol. II, pg. 122). E30827904 andE30828004 were “pieces of charred floor boards” (Appendix, Exhibit K, Incident Report, Rance Dixon, pg. 2; PET, Vol. I, pg. 40). These two samples were the only samples that had the presence of any identifiable liquid petroleum product which was discovered by the Michigan State Police. The other sample, E30827804, debris from the interior second floor wall had no evidence of petroleum liquids (Appendix, Exhibit O,MSP Laboratory Report).

•    Contrary to his report (Exhibit N, Incident Report) and his sworn testimony at the preliminary examination (Exhibit K, PET, Vol. I, pg.40) about the location of the samples, Dixon “mistakenly” testified that all the samples were taken from the second floor wall (Vol. II, pg. 123). This misleading testimony was critical to the prosecutor’s case that the fire was intentionally set, both at trial and on appeal. Dixon then falsely led the jury to believe that the “pouring” in the location was “because they wanted to do the most damage in probably the least amount of time”, and “the structure would be weakened, causing what happened, a collapse” (id., pg. 125) (emphasis added).

•    Dixon misled the jury telling them the gasoline was “actually like poured along the walls” (in the plural) (Tr., Vol. II, pg. 125). That was false. Dixon testified at the preliminary examination when questioned by the prosecutor. “Q. Did you observe any pour patterns”, to which Dixon answered, “The floors were too badly charred to see any discernable pour patterns as such” (PET, Vol. I, pg. 36-37).10 Samples were taken only along the south wall.
 

NEW EVIDENCE

•     Dirk L. Hedglin, a Forensic chemist reviewed the relevant documents regarding Dove’s interviews, the MSP laboratory report, Dixon’s Incident Report and testimony. Initially, Hedglin correctly identifies the location that each sample was taken, as revealed in Dixon’s report, and as confirmed by his initial testimony at the preliminary examination. Hedglin correctly notes that “The only samples that tested positive for gasoline were items identified as floor boards from the second floor” and identified as ET E30827904 and E30828004. Hedglin opines that Dove’s statements that he kicked over a container that held gasoline could cause gasoline to be on the floor of the dwelling. Thus, the physical evidence is consistent with Dove’s repeated statements that the fire was an accident (Appendix, Exhibit P, Laboratory Report of Dirk Hedglin, Forensic Chemist).

•     Consistent with Dove’s statements, is the sworn affidavit of James R. Torrence, that the origin of the fire and the collapse of the roof are not consistent with the origin of the fire along the wall (Appendix, Exhibit Q, Affidavit of James R. Torrence).

•   Willis filed a motion to allow his expert to test the samples taken by Dixon from the house. However, the trial court, on March 3, 2020,denied the motion because “the samples are unavailable at this time,” because the prosecutor’s office could not locate them. An audit on the Detroit Evidence Retention System showed the evidence tag numbers submitted by Dixon did not match the evidence. ET E30827804 is identified as a .22 caliber revolver. ET 30827904 is identified as a knife. ET 30828004 is identified as a kitchen knife.

 

10The Michigan Court of Appeals relied on this misleading testimony that “the physical
evidence that gasoline was poured along the walls” (in the plural) contradicted Dove’s alleged
written recantation (Op., pg. 10).
 

 

IV.  THERE WERE NO INSURANCE PROCEEDS FOR THE NOVEMBER 15, 2008 FIRE. THE PROSECUTION’S THEORY PRESENTED ATTRIAL THAT WILLIS HAD THE PROPERTY BURNED FOR INSURANCE MONEY WAS FALSE.
 

 

The lynchpin of the prosecution’s case was a claim that Willis (and his then fiancé, Megan Daniel (the owner of the property) had a financial motive based on insurance proceeds.
 

•    In his opening statement, the assistant prosecutor told the jury that Willis had Darian Dove set the fire “to get insurance money to burn his money pit” (Tr., Vol. II, pg. 60).
 

•    During closing argument, the assistant prosecutor emphasized the significance of motive, telling the jury “motive is important in this case” for both the crime committed and the credibility of Dove (Tr., Vol. VII, pg. 20). Regarding motive, he repeated the refrain that “no one has a motive to burn this house except Mario Willis, nobody” because burning the house was “a cash cow for insurance recovery” (id., pg. 30-31). In rebuttal, the assistant prosecutor urged a conviction because “there was insurance on the property. There was forced placed insurance” (id., pg.58).

At trial, the prosecution elicited testimony that there was an insurance policy on the house at the time of the November 15, 2008 fire, described as a forced placed policy, because the homeowner’s insurance policy had lapsed. However, it was not disclosed that a forced place insurance policy is placed on the structure on the property by the mortgage company only to protect their interest due on the mortgage. Any of the proceeds on that policy are paid exclusively to the mortgage company. And the mortgage company was only paid a portion of the outstanding balance, leaving Ms. Daniel with a substantial balance owed. New evidence debunks the prosecution’s arson for profit theory of their case.
 

 

POST-CONVICTION/NEW EVIDENCE REGARDING THE 2008 FIRE
 

•     Letter from Kenneth M. Korotkin, KIG Insurance group, dated August8, 2018 (Appendix, Exhibit R). Having reviewed the mortgage and insurance documents related to the 2008 fire, Korotkin states that neither Willis or Ms. Daniel would receive any insurance proceeds or financial payout because the forced-place insurance coverage protects only the mortgage company and not the homeowner. There was no homeowner’s insurance policy on the house at the time of the fire.
 

•     Letter from Paul McAllister, Saxon Mortgage, dated June 17, 2009 (Appendix, Exhibit S). At the time of the fire, the mortgage amount was $70,208.97. Insurance proceeds in the amount of $28,978.05 were paid to Saxon Mortgage by Balboa Insurance. A balance of approximately$40,000 was owed on the mortgage. The balance of the mortgage was owed and Saxon did not release Ms. Daniel from that debt.
 

•     This evidence is significant because it shows that Ms. Daniel was left with a house that was uninhabitable, could not be rented for income or sold, a $40,000 mortgage debt, and eventually was demolished by the City of Detroit. The insurance proceeds motive was simply not true. And this evidence is consistent with Dove’s preliminary examination testimony that he knew nothing about Willis being behind in payments and did not know why Willis wanted a fire at the Kirby house (PET, Vol. I, pg. 57).

 

POST-CONVICTION/NEW EVIDENCE REGARDING THE 2007 FIRE
 

 

Two documents confirmed that Dove lied about the 2007 fire being an arson. There was no physical, scientific or other evidence supporting Dove’s false testimony.
 

•      The Detroit Fire Department incident report states that the cause of ignition was “undetermined after investigation” (Appendix, Exhibit T, Incident Report).
 

•      The sworn statement in proof of loss that, “This loss did not originate by any act, design or procurement of the insured, or this affiant” (Appendix, Exhibit U, Sworn Statement and claim confirmation).
 

 

V.  THE CAUSE OF DEATH WAS AN ACCIDENT, NOT HOMICIDE.
 

•     While the assistant medical examiner, Dr. Bechinski, opined at trial that the manner of death was homicide and the cause of death was “mechanical asphyxia” as the result of heavy weight on the chest and upper abdomen preventing breathing, that opinion was inaccurate, misleading, and incomplete (Tr., Vol. II, pg. 76).
 

•    Not only was the examination by Dr. Bechinski incomplete, there was an absence of physical evidence of trauma to support his conclusion and a failure to properly consider Mr. Harris’s pre-existing heart disease and congestive heart failure.
 

 

POST-CONVICTION/NEW EVIDENCE

•    Medical records from Detroit Receiving Hospital and the treating physician, Dr. Freeman show the final diagnosis was cardio pulmonary arrest, after Harris arrived “in full cardiac arrest.” There was “no gross deformities suggestive of severe trauma.” Photographs show no bruises or lacerations on the body (Exhibit Y, Detroit Receiving Hospital records of Walter Harris, certified, August 23, 2020).
 

•     Mr. Harris’s death was an accident, not a homicide. Dr. Dragovic’s review of the pertinent information show “a complete absence of any trauma.” Mr. Harris had an abnormal body mass and heart that were“ clearly pre-existing grave abnormalities” (Exhibit Z, Letter of Opinion from Ljubisa J. Dragovic, Chief Forensic Pathologist, Oakland County, dated August 22, 2018).

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THE DEFENSE
 

•     Mario Willis consistently maintained his innocence in multiple interviews with investigators and a surreptitious telephone recording call with Dove. Shortly after the fire, he informed investigators he was with Ms. Daniel on a date.

•     Ms. Daniel confirmed Willis’ whereabouts during the early morning hours of the fire to investigators in a written statement and subsequent recorded statement, as well as at trial. Even though she agreed to a polygraph examination, it was not given (Tr., Vol. V, pg. 87-89, 121-122).
 

•     Witnesses (Calvin Hughes, Richard Madison) testified at trial to the use of the various cell phones and vehicles related to the business that the prosecution alleged as circumstantial evidence against Willis. Their testimony, along with the testimony of Willis and Daniel established Dove drove the large Excursion truck he associated with Willis on the night of the fire (PET, pg. 118, Dove admitted driving the black car).
 

•    Willis prior criminal history consisted of only several traffic offenses.