TRYING TO CLOSE A COLD CASE

David McLeod listens to testimony during a hearing surrounding his second-degree murder case in Sullivan County Superior Court in Newport in July.

Prosecutors last week filed a brief with the N.H. Supreme Court arguing for the admission of evidence they call critical to their case against a former local man accused of setting a deadly 1989 apartment blaze.

David B. McLeod, 55, most recently of Sacramento, Calif., awaits trial on four counts of second-degree murder in the deaths of a family during a High Street fire in Keene more than two decades ago. McLeod was arrested in 2010 and remains held without bail at the Cheshire County jail in Keene.

Earlier this year, the high court accepted a pretrial appeal from the N.H. Attorney General’s Office, which is asking it to overturn an order by Superior Court Judge Marguerite L. Wageling that prosecutors say would “seriously compromise” their ability to prove McLeod set the blaze.

Wageling ruled in September that the state’s three fire science experts cannot testify at trial that they believe fire was arson, because their findings included consideration of statements from a witness who died in 2005.

That witness — Sandra Walker — lived in the second-floor apartment where officials said the Jan. 14, 1989, fire started. She described in interviews with police how she woke up to flames engulfing her small room and said at first she believed she may have fallen asleep with a lit cigarette, which she later recanted.

A family of four who lived in the building — newlyweds Carl R. Hina, 49, and Lori M. Hina, 26, their 4-month-old daughter, Lillian M. Hina, and 12-year-old Sara Jean, Carl Hina’s daughter from a previous marriage — died in the fire. McLeod was named as a suspect by police shortly after the blaze, but the case went cold until it was reopened in 2009 by the Attorney General’s Office’s newly formed Cold Case Unit.

McLeod’s public defender, Caroline L. Smith, argued in a pretrial motion that because Walker cannot be called to testify, McLeod’s constitutional right to confront an adverse witness at trial would be violated.

In Wageling’s ruling on the motion, she wrote that because the experts’ opinions were not independent of Walker’s statements, they would not be allowed to testify.

In the state’s 50-page brief filed Friday, however, Assistant N.H. Attorney General Janice K. Rundles wrote that it is customary for fire investigators to weigh witness statements — along with a myriad of other evidence — when piecing together the cause of a blaze.

Because the state’s fire expert’s conclusions are not based on a single witness, Walker’s death should not preclude them from testifying at trial about their overall findings, Rundles wrote.

The fire experts are Thomas Norton, a former member of the N.H. Fire Marshal’s office who was the agency’s lead investigator into the High Street fire, and two agents for the U.S. Bureau of Alcohol, Tobacco and Firearms who reviewed Norton’s original investigation and supported his conclusion that the fire was caused by arson.

In a motion filed before the state appealed to the high court, prosecutors had asked Wageling to allow the experts to testify about their findings, but exclude anything that dealt with Walker’s statements.

But Wageling denied the request, writing that McLeod’s attorneys could be placed in the “untenable position” of having to bring up her statements anyway to challenge the reliability of the experts’ findings.

Prosecutors are also appealing a ruling by Wageling deeming inadmissible a 2002 telephone call recorded by police between McLeod and Kurt Frazier — a fire witness who was initially uncooperative with police, but who came forward more than a decade later to say McLeod had admitted to Frazier that he set the fire.

The contents of that phone conversation are not detailed in court documents.

McLeod’s attorneys contested the use of the recording at trial because they said procedural errors were made in obtaining it and it violates California law (where McLeod was living at the time).

While Wageling made no finding on whether the recording violated the California law, she agreed that because of procedural errors at the time it was made, the recording would not be allowed at trial.

Prosecutors dispute Wageling’s ruling that the procedural errors should keep the recording out of court.

Smith could not be reached this morning for comment.

McLeod’s attorneys have until Aug. 28 to file a response brief with the Supreme Court. The case could then go to oral arguments before the high court before it makes a ruling.

Casey Farrar can be reached at 352-1234, extension 1435, or cfarrar@keenesentinel.com.