Mastin v. Senkowski (297 F. Supp. 2d 558, 2003)

DECISION AND ORDER

FELDMAN, United States Magistrate Judge.

PRELIMINARY STATEMENT

Petitioner Mark Mastín (“Mastín”), represented by counsel, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this matter by the undersigned. For the reasons set forth below, Mastin’s petition for a writ of habeas corpus is denied.

FACTUAL BACKGROUND

In the early morning of December 9, 1995, a fatal fire engulfed the home of Mastín and his wife, Lisa Mastín, in the Town of Hopewell in Ontario County. Both Mastín and his wife survived the blaze, but their three young children were trapped inside the burning structure and were killed. Later that day, Mastín gave a statement to police that he woke up to find the house on fire, and that the only area in the house where he noticed flames and smoke was the children’s bedroom. This was at odds with the observations of all of the other witnesses to the event, who stated that the flames first appeared in the living room area of the house, and that there was no fire in the children’s room until at least twenty minutes later.

Further investigation into the cause of the fire cast Mastín under suspicion, and on December 21, 1995, the police requested that Mastín take a polygraph examination to verify his original statement. The polygraph results allegedly indicated that Mastín was lying about his involvement in the fire. Initially, Mastín maintained his innocence, but after further questioning that afternoon he began to give indications to the police that he was responsible for starting the fire. Mastín ultimately confessed that he had set the fire because he was angry at his wife for having stayed out so late that night and wanted to teach her a lesson. This oral confession was transcribed, and Mastín signed it. He also gave a brief addendum clarifying the first confession, which he also signed.

Mastín was arrested and arraigned later that evening on charges of arson and second degree murder. The Ontario County Grand Jury returned an indictment on January 30, 1996, charging Mastín with first degree arson (New York Penal Law (“P.L.”) § 150.20), three counts of felony murder (P.L. § 125.25(3)), and three counts of depraved indifference murder (P.L. § 125.25(4)).

The Huntley Hearing

Through defense counsel, Mastín subsequently moved to suppress the two statements he made on December 21, 1995, claiming that they were the product of police coercion. A Huntley hearing was held in Ontario County Court (Harvey, J.) on June 26 to June 27, 1996. Both Cecil Brand, the police investigator who questioned Mastín, and Lynn Prescott, the po-lygraphist, testified at the hearing. Mas-tin did not testify.

Justice Harvey issued a written opinion denying the motion to suppress the statements, holding that the admissions made by Mastín to the police were voluntarily made and admissible at subsequent proceedings. July 10, 1996 Order of County Court (“7/10/96 Order”), Appendix (“App.”) 1 at 162. In that opinion, Justice Harvey also denied the motion to dismiss the indictment, finding that the police had the necessary probable cause to arrest Mastín at the conclusion of the statement-making process. Id.

The Trial

Mastín was tried before a jury in Ontario County Court, Justice Harvey presiding, from July 29 to August 8, 1996. A summary of the testimony provided by the various witnesses at trial follows.

Elise Knuppenburg

Elise Knuppenburg (“Knuppenburg”) testified first for the prosecution. Knup-penburg lived in the house immediately to the east of the Mastins’ house on Routes 5 & 20 with her fiancé, William Hood (“Hood”) and her two children. Trial Transcript (“Trial Tr.”) at 354; 357. At about 6:20 a.m. on December 9, 1995, Knuppenburg was awakened by pounding on her front door. Id. at 358. Knuppen-burg came downstairs to find that Lisa Mastín had burst into the house and was standing in her nightgown, “hysterically]” screaming that her house was on fire and that her babies were inside. Id. at 358-59. Knuppenburg observed that Lisa’s hands were “scratched up,” her right leg was burned, and about two or three inches of her hair had been singed. Id. at 360; 370. After calling 911, Knuppenburg went outside and “saw flames coming out from the front of the [Mastins’] house” in the location of the “big double glass windows.” Id. at 362; 389. She did not see flames coming from any other part of the house. Id. Notably, Knuppenburg did not see any fire coming from the children’s bedroom until about twenty minutes later. Id. at 373.

At around that time, Knuppenburg observed Mastín, fully clothed and wearing shoes, walk at a “normal” gait across the front yard and into her house. Id. at 367; 373. Knuppenburg asked Mastín what happened, and he replied that his son “Douglas had been playing with matches and caught his bed on fire.” Id. at 368. When Knuppenburg asked him why he had not taken the matches away from Douglas, Mastín did not reply. Id. at 368-69. On cross-examination, Knuppenburg conceded that she did not tell the Grand Jury that she had asked Mastín the latter question. Id. at 386.

After that exchange, Mastín stood “very quiet[ly]” at the door and watched his house burn. Id. at 369. Mastín did not say anything else, nor did he appear to be crying. Id. Meanwhile, Lisa Mastín was still lying on the living room floor “crying and screaming for her babies and saying [the burns on her leg] hurt.” Id. at 370. Knuppenburg did not see Mastín attempt to console his wife. Id. at 374. According to Knuppenburg, Mastín did not appear to be injured, although “one side of his face was red like a bad sunburn.” Id. at 375. Eventually, Mastín and his wife left Knup-penburg’s house in an ambulance. Id.

About three or four days later, Mastín and his wife visited Knuppenburg at her home for about an hour; Mastín “was laughing [and] joking.” He did not say anything about his children during that conversation. Id. at 377.

William Hood

Hood, Knuppenburg’s flaneé, testified that he had been a volunteer firefighter for approximately nine years. Id. at 395. After being awakened by Knuppenburg with the news of the fire, Hood looked out his bedroom window and saw “flames ... coming out of the big picture window in the north side of [the Mastin’s] house.” Id. at 396-97. As he was donning his coveralls, Knuppenburg told him where the children’s bedroom was and where the children had last been seen in the house. Id. at 398-99.

When Hood arrived outside the Mastins’ house, he noticed that “the fire and smoke was (sic) only coming out of the front of the house[.]” Id. at 399; see also id. at 402; 404. Hood ran around to the west side of the house, where the children’s bedroom was located. Id. at 405. There he encountered a man whom he did not know; the two of them proceeded to break the window with “a stick or something.” Id. After the other man broke the window, a “billow of smoke” came out of the window. Hood waited for a moment until the smoke died down and attempted to climb inside the house, but he “was pushed back because of the extreme heat, intensive smoke” which was “[v]ery black” and “[t]hicker than fog.” Id. at 405-06. Although Hood could get only one leg in the window, he was able to see that there was no fire in any part of the children’s room at that point. Id. at 406.

When Hood first saw Mastín that morning, Mastín was standing in Hood’s dining room “staring out at the house.” Id. at 410. Mastín was not crying and displayed no emotion. He appeared to Hood “to be just like a spectator watching a fire.” Id. When Hood saw Lisa Mastín somewhat later, she was lying on their living room floor with “[s]kin ... hanging off her [legs].” Id. at 411. Hood did not observe Mastín make any attempt to speak to or console his wife. Id.

Hood testified that he did not see flames coming out of the children’s bedroom until he came back outside after calling 911, about twenty minutes after he first saw the fire in the front picture window. Id. at 412.

Kenneth Favreau

Kenneth Favreau (“Favreau”) observed the fire that morning as he was driving to work. Id. at 430-31. Favreau, a volunteer firefighter for the previous five and half years, id. at 447, testified that as he approached the burning structure, the flames were coming from the northeast side and half of the “picture window” was “already burned out.” Id. at 439-40. When he first arrived at the house, he did not see any fire on the west side. Id. at 449; 450.

Favreau also observed Mastín get into a van and move it to the other side of the driveway. Id. at 433. Favreau asked him if there was anybody else in the house and he replied, in a “[pjretty calm” tone of voice “for the events that were ... going on at that time,” that there were “three kids” still inside. Id. at 435. Favreau asked Mastín where the children were located, and Mastín pointed to the second window down on the west side of the house. Id. at 436; 438. Hood had joined Favreau and Mastín by this point, and Hood and Favreau proceeded to the area of the children’s bedroom. Id. at 439.

Favreau observed that the glass in the children’s bedroom window was “partially gone.” Id. at 441. Favreau put his leg upon the windowsill and, holding onto the roof with his right hand, tried to crawl in the window. Id. However, he was. unable to gain entry to the children’s room because of the “black, billowy, thick, thick smoke.” Id. According to Favreau, there was still snow on the roof overhang at this point. Id. Favreau did not see any flames inside the children’s room. Id. at 442.

After trying unsuccessfully to gain entry through a window on the southernmost edge of the house, Favreau then went back to the area of the children’s room; when he looked through the window, he observed five to seven spot fires on the floor. Id. at 445. That was the first time that he saw any flames in the children’s room. Id. at 446. Favreau was unable to gain entry to the room on this second occasion due to “the heat and the smoke and the fires.” Id. At that point, he and Hood returned to the corner near Hood’s house to wait until the fire department arrived. Id.

Favreau did not see or speak tó Mastín again after he first observed Mastín moving his vehicle away from the house. Id. at 450. Mastín did not make any efforts to assist Favreau, nor did he make any attempt to enter the house himself. Id.

According to Favreau, Hood appeared more upset than Mastín did. Id. at 451. On cross-examination, defense counsel elicited from Favreau that he had told the Grand Jury that Mastín “ ‘started to break down a little bit’ ” when he told Favreau that his children were inside. Id. at 453. Favreau reiterated that Mastín did not break down “to the demeanor (sic) Mr. Hood was.”. Id. at 454.

Walter Brown

Walter Brown (“Brown”), a member of the Town of Hopewell fire department and next-door neighbor of the Mastins, was awakened on the morning of December 9th, at about 6:30 a.m. by his beeper. Id. at 464-65. Brown immediately dressed in his turnout gear and proceeded to the Mastins’ house, where he saw flames coming from the lower window on the ground floor on the “front of the north side of the house,” as well as a window above that one on the same side. Id. at 465. Brown’s first impression upon nearing the house was that he would not be able to enter without his breathing apparatus; nevertheless, he walked around the perimeter of the house to ascertain that in fact there was no place where he could make entry. Id. at 466-67; 476-77. As he circled the house, Brown only observed flames emanating from the northern side of the house, from the front picture window on the first floor the living room) and the front second floor window. Id. at 467-69; 473-74.

Jeffrey Dann

Jeffrey Dann (“Dann”), a volunteer firefighter with the Town of Hopewell Fire Department, testified that when he walked outside of his house at about 6 a.m. on December 9th, he noticed a “glow in the sky” to the southeast. Id. at 482. As he was leaving for work, the glow appeared to have become bigger, and Dann headed towards it in his car to investigate. Id. at 483. By the time Dann arrived at the Mastins’ house at about 6:25 a.m., the “residence was pretty well engulfed in flames.” Id. at 484. Dann observed flames coming from the “northeast part of the house.” Id. Dann also saw Hood in his front yard, looking around and yelling that there were three children in the building. Id. at 486. Mastín, according to Dann, was standing on the Hood’s front porch; Dann “didn’t really notice him that much other than he was standing there.” Id. at 487. The fire trucks arrived about five minutes later, as Dann finished walking around the house and determined that there was no way to enter the structure without oxygen. Id. at 489-90.

Patricia Meyer

Patricia Meyer (“Meyer”) lived across the street from the Mastins on Routes 5 & 20. Id. at 494. At about 6:15 a.m. on December 9th, after looking out her window and seeing that the Mastins’ house was on fire, Meyer ran over to see if she could be of any assistance. Id. at 496. As she approached the house, she saw that the front of the house, as well as the side visible from her home (the east side), were engulfed in flames. Id. at 497. Meyer saw Hood standing outside; he indicated to her that the children had not been saved. Id. at 498. Meyer then went over to the Hoods’ house because she heard that the parents of the trapped children were there. Id. at 499. Once inside, Meyer saw Lisa Mastín lying on her back on the floor and Mastín squatting down next to her, by her feet. Id. at 500. According to Meyer, they were “very calm.” Id. Mastín “wasn’t saying anything ... [h]e was just squatting there.” Id. at 500-01.

Meyer had come over to the Hoods’ house with Officer Daniel Bennett, whom she heard ask Mastín how the fire started. Id. at 502. “Without hesitation, [Mastín] looked up and said to him, those kids are always playing with matches or lighter[.]” Id. During the fifteen minutes Meyer was at Hood’s residence, she never heard Mas-tin ask about his children. Id. at 503. Meyer testified that she heard Lisa Mastín say something about the children to her husband; the trial court sustained defense counsel’s objection when the prosecutor asked her about the substance of the comment. Id. at 503-04.

Daniel Bennett

Daniel Bennett (“Officer Bennett”), a deputy sheriff with the Ontario County Sheriffs Department, arrived at the Mas-tins’ house at 6:31 a.m. after receiving the 911 call. Id. at 506. He testified that upon his arrival, it appeared that “the whole inside of the house was on fire” as he looked toward the picture window on the front of the house. Id. He did not see flames coming from any other portion of the house, however. Id. at 507. After speaking briefly about the fire to Hood, who appeared “[v]ery excited,” Officer Bennett went over to Hood’s residence. Id. at 509. In response to Officer Bennett’s questions about where he first observed the fire, Mastín replied that “it was coming out of the kids’ bedroom, there was fire and smoke, he tried to enter the room, but couldn’t because of the fire, then he ran outside and called up to his wife.” Id. at 511. During this conversation, Mastín “was very calm” and “never asked about the children at all.” Id. at 512. As far as Officer Bennett could discern, Mastín did not exhibit any emotion at all. Id.

Deborah Bumpus

When Deborah Bumpus, (“Bumpus”), a volunteer advanced medic with the Canan-daigua Ambulance Squad, arrived at the scene, she quickly determined that Lisa Mastín had suffered first and second degree burns on about 16 to 18% of her body. Id. at 521. Bumpus had her wrapped in a sterile burn blanket and brought to the waiting ambulance. Id. at 521; 527. Bumpus next assessed Mark Mastiris vital signs, which were normal. Bumpus testified that Mastín was “[ljethargie,” showing “no emotion [ ] at all.” Id. In fact, Bum-pus testified that Mastiris lack of affect initially caused her to conclude that he was in shock, but his normal vital signs belied that. Id. In Bumpus’s opinion, Mastín was “absolutely not” in shock. Id. at 525. Mastín did not inquire about his children during the time that Bumpus was in contact with him. Id.

When she asked Mastín what the cause of the fire was, he replied that “they were having a terrible time with Louis playing with — with the lighters.” Id. at 526. When Bumpus pointed out that there is a safety catch on lighters, Mastín said that he and his wife would remove them. Id.

Bumpus stayed at the hospital for about five hours, and she was with Mastín when he found out that his children were dead. Id. at 530. According to Bumpus, when Mastín heard the news, he “put his head down ... in his hands and cried, I believe.” Id. Bumpus did not recall if Mastín said anything at that point. Id. Prior to that time, Mastin’s demeanor had been “[vjery low-key” with “very little affect.” Id. at 533.

Shelley Smith

Shelley Smith (“Smith”), a deputy sheriff with the Ontario County Sheriffs Office (“OCSO”), observed a conversation between Mastín and a registered nurse at the hospital in which Mastín said that “he thought his kids started the fire.” Id. at 535. Smith later spoke to Mastín individually, and “he said that he was in the living room and there was fire coming from the kids’ bedroom and he — he tried to get them out, he was approximately ten steps away and he wasn’t able to” because of “the flames that were coming out of the doorway” of the bedroom. Id. at 536. Mastiris demeanor “varied greatly from moment to moment” during the four hours that Smith was at the hospital; Mastín alternated from “very casual” to “quiet” to “jok[ing] with his friend or family.” Id.

Donald Barnes

Donald Barnes (“Barnes”), the Fire Coordinator for Ontario County, arrived at the scene at about 6:45 a.m. and saw the structure engulfed in a “huge white cloud of smoke and steam.” Id. at 557. Barnes characterized the fire as “very hot, very extensive.” Id. at 558. During the course of investigating the fire scene, Barnes learned that the Mastins’ daughter reputedly had last been seen in her bed near the window. Id. at 563. After quelling the fire in the children’s bedroom, Barnes testified that he was able to reach in through the window and touch the child’s body lying on the bed; he did not have to stretch or climb inside the window to do so. Id. at 565.

Barnes testified that he and his team did not detect any problems with the LP gas tank, the furnace, or the kitchen range. See id. at 572-75. Barnes also ruled out the hot water heater, clothes dryer, refrigerator, electrical junction box, and electrical outlets as possible causes of the fire. See id. at 577-80; 588.

Barnes testified that the entrance to the children’s bedroom on the first floor was “an open doorway coming out into the living area.” Id. at 582. The stairs to the second floor were “made out of railroad ties or something similar to that.” Id. at 583. After examining the remains of the house that day, Barnes could find no accidental or natural causes for the fire. Id. at 589.

On December 14, 1995, Barnes met with the Mastins at the motel room where they were staying temporarily to discuss the fire. Mastín told Barnes that he had been asleep on the couch in the living room when he was awakened by something; he was not sure what it was. Id. at 592. As he awoke, Mastín saw “bright lights flashing” and “his eyes were drawn to the bedroom door area where he saw fire.” Id. Mastín said that the flames were “[ajround the doorway partition, ceiling level” and were “coming out of the children’s bedroom ... [and] going towards the stairway.” Id. at 593-94. He recalled that the flames traveled from the bedroom, around the south side of the doorway, to the top of the refrigerator where they hit a ceiling beam and stopped. Id. at 594.

Mastín told Barnes that he could hear Cassandra screaming and tried to get into the children’s room but could not because “it was too hot and there was (sic) smoke and flames.” Id. at 595. Mastín said that he burned his left hand and the left side of his face at that point; Barnes observed that the burns left scars there. Id. at 595; 616. Mastín told Barnes that he “kept hollering for Lisa to come out” and went outside to lie in the snow because he thought that the back of his shirt was on fire. Id. at 595-96.

Mastín told Barnes that his son Douglas had picked up his lighter from the coffee table where Mastín kept his cigarettes and started the fire with it. Id. at 596-97. According to Mastín, Douglas would have been able to operate the lighter because Mastín broke the safety device off all his new lighters to make them easier to use. Id. at 597. Mastín told Barnes that he had put a nail in the casement of the children’s window to stop them from climbing out the window to play in the yard. Id. at 598.

On cross-examination, Barnes testified that did not smell any gas or other acceler-ants as he walked around the fire scene, but that he had a “very poor” sense of smell. Id. at 607. Barnes also stated that the “accelerant dog” did not detect the presence of hydrocarbons or petroleum based products in the area. Id. On redirect examination, Barnes testified that the scent dog is not a “fool proof’ way to detect hydrocarbons; it is possible for the accelerants to burn away and leave no residue, or to become flushed away during fire fighting operations. Id. at 617. Barnes opined that the fire was “very hot” and that water was applied to the house continuously for 30 to 60 minutes. Id. at 617-18. On re-cross examination, Barnes conceded that there was an electronic apparatus available to assist in the detection of hydrocarbons; he chose to use the dog since that did not require him to leave the scene. Id. at 620. If the dog had not been readily available, Barnes said he would have retrieved the instrument and performed the test with it. Id.

According to Barnes’ investigation, there was “[n]ot very much” damage caused to the material underneath the stairs. Id. at 609. He agreed that “the point of origin of a fire is very often the point where the most damage is done.” It was Barnes’ opinion that there was only a “[hjorribly remote possibility” that the fire could have started underneath the stairs. Id.

Lynn Prescott

Lynn Prescott (“Prescott”), the polygraph operator, was acting in a volunteer role with the OCSO when he interviewed Mastín on December 21, 1995, at the behest of Investigator Cecil Brand (“Brand”). Prescott first met with Mastín at approximately 11 a.m. at the OSCO and began by reviewing Mastin’s statement to the police from December 9th and asking him a number of pedigree questions. Id. at 626-27. At approximately 1 p.m., Mastín was given a lunch break, and at about 1:30 p.m., Prescott resumed questioning Mastín. Id. at 629. Prescott testified that he reviewed the “facts surrounding the fire” with Mas-tín “quite a few times.” Id. From about 1:30 to 3:30 p.m., Mastín continued to deny involvement in the fire. Id.

Brand took over the questioning at 3:30 p.m. and Prescott exited the room. Id. at 629. Prescott did not observe Brand’s interrogation of Mastín through the one-way window. Id. at 630.

At about 4:45 p.m., Prescott spoke to Mastín again, alone, about how the fire started. Id. at 630. Shortly before 5 p.m., Prescott asked Mastín if he started the fire and Mastín replied, “ T can’t come out and say it.’ ” Id. at 632. Mastín then said, “ T just want to know how I could do this when it goes against everything I believe.’ ” Id. (At trial, Prescott was reading from the verbatim notes he took during the interview.) Mastín described his anger at Lisa for staying out so late as a “nine point five on a scale of ten” and said it was one of the latest times she had been out. Id. at 633. When Prescott asked Mastín again, at about 5:15 p.m., Mastín admitted that he started the fire. Id. In response to Prescott’s question, Mastín said he started it “with a cigarette or a lighter.” Id. Prescott asked him to specify whether it was a cigarette or a lighter, but Mastín never did. Id. at 694; 700.

Mastín told him that he started the fire because “he was angry at his wife and wanted to teach her to stay home with— with him and the — and the kids.” Id. at 633. Mastín said he had another cigarette after his wife went up to bed but did not say what he did with it. Id. at 634. Prescott left the room thereafter to tell Brand about Mastin’s statements. Id. at 635.

Prescott did not rejoin Mastín until about 7:18 p.m. that evening to attempt to clear up the matter of whether he used a cigarette or a lighter. Id. at 697. At that time Mastín told him that “he started the fire with a lighter or a cigarette under the stairs” and “could have possibly used paper” and that “there was some sort of debris under the stairs.” Id. at 636. This questioning was only for a “very short, brief period” of time. Id. at 679. Prescott testified that Mastín did not pin down whether the source of ignition was the cigarette or the lighter. Id. at 700. Prescott stated that he asked Mastín “if he knew which it was” and Mastín “said he didn’t.” Id. Prescott said that he had no further involvement in the case after about 7:30 p.m. Id. at 679.

On cross-examination, defense counsel made a strategic decision to have Prescott inform the jury that he administered a polygraph examination to Mastín. See id. at 641-47. During the polygraph, Mastín denied any responsibility for setting the fire. According to Prescott, Mastín failed the examination. Id. at 652. When Prescott rejoined Mastín at about 1:30 p.m. after scoring Mastin’s results, Prescott told Mastín that he believed his answers were “very deceptive,” id. at 675, and the “the charts clearly indicate[d] that [he][was] not telling [Prescott] the truth in this matter.” Id. at 676. Prescott testified that Mastín made no response to that statement. Id. at 675; 684-85. Prescott did not have a recollection as to how the dialogue proceeded after that. Id. at 685. He testified that he “could have” told Mas-tin he was very deceptive more than once during the interview, but he did not know for certain. Id. at 688.

Prescott conceded that Mastín was not given another test in the evening, after he began making inculpatory statements. Id. at 652. In response to defense counsel’s question as to whether polygraph “machines [are] foolproof and infallible,” Prescott demurred, saying that he “would not know.” Id. at 660. Prescott denied telling Mastín that the polygraph is 95 percent accurate. Id. at 701-2.

Prescott testified that neither he nor Brand offered Mastín any promises of leniency or other inducements in return for confessing. Id. at 637-38. Mastín never complained to Prescott of anyone threatening or coercing him, and Prescott did not witness any such occurrence. Id. at 637. Prescott never heard Mastín tell anyone that he wanted to leave. Id. at 639. That day, Mastín appeared “[p]retty laid back [and] calm” to Prescott. Id. at 640.

Cecil Brand

Investigator Cecil Brand (“Brand”), a member of the OCSO, took a statement from Mastín after he was discharged from the hospital on December 9th. Id. Brand testified that during the course of his subsequent investigation, “other information [was] developed that didn’t square with [Mastin’s] statement,” and Brand decided he needed to speak with Mastín again. Id. at 726.

On December 21,1995, at approximately 10:10 a.m., Brand and another OCSO officer arrived at the Mastins’ apartment where they were temporarily staying. Brand asked Mastín if he would be willing to come back to the OCSO to “review and verify his previous written statement.” Id. at 729. Brand also asked Mrs. Mastín to come to the OCSO to provide a written statement as she had not done so yet. Id.

Once at the OSCO, Brand and Mastín went downstairs to the Criminal Investigation Division (“C.I.D.”) area where Brand advised Mastín of his Miranda warnings. Id. at 730. Brand also told Mastín “that he was free to go and that he was not under arrest and that he had come here voluntarily.” Id. Brand testified that even though Mastín was not in police custody at that time, he read the Miranda warnings because he “considered [Mastín] a possible suspect.” Id. at 731; 777-78. Mastín told Brand that he understood his rights and was willing to speak to him without an attorney present. Id. at 731-32. Mastín agreed to verify his December 9th statement through a polygraph examination. Id. at 732. From about 11 a.m. until 1 p.m., Mastín was interviewed by Prescott. Id. at 733. Brand was not present for this interview, although he could observe Prescott and Mastín through the interrogation room’s one-way window and microphone. Id. at 734.

Brand met with Mastín, alone, for the first time at approximately 3:30 p.m. that afternoon. Id. at 735. During that interview, Brand asked Mastín if he started the fire; Mastín denied it. Id. at 736. When Brand eventually told Mastín that he did not believe him, Mastín was silent. Id. Asked by Brand to describe again what happened, Mastín continued with the same response he had given before: “that he had awakened to see the flames in the children’s room, that he had tried to get into the children’s room and was unable to and then exited the house.” Id. WTien Brand asked him how he thought the fire had started, Mastín stated that “it must have been one of the children playing with matches or a lighter in their beds.” Id. at 737. The conversation continued in this vein for about an hour and fifteen minutes. At about 4:45 p.m., Brand left the room and Prescott entered. Id.

Brand observed some portions of Prescott’s interview; in particular, he heard Mastín admit that he started the fire with either a cigarette or a lighter because he was angry at his wife. Id. at 737-38. When Prescott left the room at about 6 p.m., Brand entered and resumed questioning Mastín. Id. at 738. At Brand’s request, Mastín gave an oral statement which Brand transcribed by hand. Id. When Brand had finished writing, he asked Mastín to read the statement; Mas-tín stated that it was true and both men signed the statement at the bottom of the page. Id. at 738-39. Mastín then agreed to give a formal typewritten statement. Id. at 742.

Brand and Mastín proceeded to an office where the department secretary was available to transcribe the statement. Id. at 743. Brand testified that he “would ask questions, Mark would give responses, secretary would record the questions and answers.” Id. at 743; 746. Brand told him that as Mastín gave his answers, he might “go over his answers with him” before the secretary recorded them. Id. at 743. Brand stated that he did this in order to make the answers “as complete and concise” as possible so as to avoid “a lot of extra questions later.” Id. at 744. Brand also told Mastín he would do this because he “knew the answers to most of the questions ... because [they] had already gone over them previously.” Id. at 744-45. Brand instructed Mastín not to let him (Brand) put anything in the statement the he did not want included. Id. at 745. Mastín indicated that he understood. Id.

"Question, what is your full name? Answer, Mark Brian Mastín.... Question, before we begin, do you fully understand your rights pertaining to this statement? Answer, yes, I do. Question, Mark do you recall giving me a written statement on December 9th, 1995, concerning the fire at your residence at the time (2841A Routes 5 & 20 in the Town of Hopewell)? Answer, yes. Question, was the statement that you gave me on December 9th, 1995, true? Answer, yes. Question, was the statement that you gave me on December 9th, 1995, complete? Answer, no. Question, Mark, could you relate to me in your own words the complete account of what occurred at your residence ... at the time Lisa got home? Answer, Lisa came in about 4:30 a.m. and woke me up. I sat up to have a cigarette while Lisa ran around the house turning off lights, locking the door, tucking in the kids and getting ready for bed. Question, during this time, what if anything, did Lisa say to you? Answer, in the process of her running around, getting ready for bed, she asked me a couple of times if I was coming up to bed and I told her no. Question, why didn’t you go upstairs to bed with Lisa? Answer, because I was angry that she had gotten home so late. Question, when Lisa went up to bed, did you see her take Louis with her? Answer, yes. Question, what, if anything, did you do after Lisa and Louis went up to bed? Answer, I stayed up on the couch and lit another cigarette. Question, did you finish the second cigarette? Answer, yes. Question, when you were finished with the second cigarette, did you put it out? Answer, no. Question, what did you do with the second cigarette when you were finished with it? Answer, I flicked it onto the staircase. Question, Mark, why did you throw the lit cigarette onto the staircase? Answer, I was angry at Lisa and wanted to teach her a lesson so I flicked the cigarette onto the stairs and hoped it would catch the stairs on fire. Question, after you threw the lit cigarette onto the staircase, did you stay awake to see what happened? Answer, no. I was so tired and disgusted with Lisa, that I just rolled over and went to sleep on the couch. Question, what’s the next thing that you remember after going to sleep on the couch? Answer, waking up to the fire and trying to get everybody out of the house like I said in my other statement. Question, in your first statement, you said that you tried to get into the children's bedroom but couldn’t because of the fire and you said when you went outside, you called up to Lisa. Did you ever see Lisa on the stairs with Louis? Answer, yes, after I couldn’t get into my kids' room from inside, I headed toward the front door of the house. When I turned away from my kids' room, I saw Lisa on the stairs with Louis. I told her to get out of the house and then I went out the front door. Question, Mark, is this the starting point of the previous statement that you gave on December 9th, 1995? Answer, yes. Question, is there anything that you would like to ad to this statement or to the previous statement? Answer, this was not intended to be the way it happened. Even though I wanted the stairs to catch fire, I never meant to hurt my children or my wife.” Id. at 750-53.

When they had finished the statement, Brand asked Mastín if there was anything he wished to add, and Mastín replied affirmatively. Id. at 746-47; see note 5, supra. When the addendum was completed, Brand asked Mastín to read the first few lines of the body of the statement to verify that he could read English. Id. at 748. Brand then had Mastín read the entire statement to himself and asked him to sign it if he had no corrections or changes. Id. at 749. Mastín signed the statement, and Brand signed it as a witness. Id. This process lasted from about 6:80 p.m. until 7:00 p.m. Id.

Brand testified that he found it necessary to speak to Mastín again that evening because he felt that this first written statement was not accurate; Brand doubted that a lit cigarette landing on a stair could have ignited the stairs. Id. At that point, however, Brand did not know what the staircase looked like at the Mastin’s house. Id. Brand had a conversation with Mastín at about 7:20 p.m. in which Mastín explained that the staircase was comprised of flat pieces of wood on a riser frame with space in between each stair. Id. at 754. Mastín told Brand that when he had flicked the cigarette at the staircase, it had gone through the staircase and fallen to the storage area below. Id. at 755. Mas-tín stated that he was willing to put that in writing, and they returned to the secretary’s computer to have the second statement typed in the same fashion as the first. Id. Mastín read through and signed it once it was completed. Id. at 756.

On cross-examination, defense counsel questioned Brand as to why he did not tell Mastín prior to his arrival at the OSCO that a polygraph operator was going to examine him. Id. at 776. Brand stated that he “felt it would be unnecessary pressure on him at the time,” but denied that it was because he was afraid that the Mas-tins would call a lawyer. Id.

Brand denied telling Mastin that “polygraphs don’t lie,” although Brand did state that he believed the polygraph and that he thought Mastin was being untruthful. Id. at 785-87. Brand also accused Mastin directly of starting the fire. Id. at 787. However, he denied providing Mastin with “scenarios” of how the fire might have been started. Id. at 787; 789; 814; 825. Brand conceded that during the Huntley hearing, he responded affirmatively when asked by defense counsel whether he told Mastín how he thought Mastin set the fire. Id. at 814. At trial, Brand stated that his Huntley testimony was “an error.” Id. at 815. Although Brand admitted raising his voice at Mastin during their late afternoon interview, he stated that he was just “acting angry.” Id.

Brand testified that he did not have Mastín sign a verification that he received his Miranda warnings because he considered the interview on December 21st an “informal” investigation. The OCSO rules only require a written verification in the case of a “formal” investigation. Id. at 790.

On cross-examination, Brand conceded that he did not actually ask Mastín if the cigarette in fact fell through the stairs; he testified that he was “satisfied” with Mas-tin’s answer that the cigarette “would have fallen” through the stairs. Id. at 811. Brand agreed with defense counsel that “[sjometimes [he] providefd] the question and the answer” during the statement-taking process. Id. at 812. Brand attempted to clarify this statement on redirect, however. As an example, Brand explained that he asked Mastín to relate in his own words the complete account of what occurred from the time his wife got home. Id. at 829. When Mastín first answered, he had left out what time Lisa arrived home, so Brand said to Mastín, “Lisa gets home at what time?” Brand testified that Mastín said “4:30.” Id. According to Brand, “the answer that was actually taken down is — is ‘Lisa came in about 4:30 a.m.’ ” Brand testified that the foregoing exchange was “typical of the process.” Id.

Brand denied threatening or coercing Mastín. He testified that he never promised Mastín any leniency or deals as inducement for confessing. Id. at 758-59. Brand testified that Mastín never asked to leave or that the questioning cease. Id. at 759. Brand testified that at no time did Mastín ask to speak to a lawyer, but he did ask Brand at one point if Brand thought he should have an attorney. Id. at 759-60. Brand told Mastín that he could not answer that question, but because he had mentioned an attorney, Brand stopped the interview and re-advised Mastín of his Miranda rights. Id. Mastín agreed to continue the interview without an attorney present. Id.

Brand denied telling Mastín that he was “going to question [him] as long as it takes,” and he testified that Mastín did not appear scared or tired to him. Id. at 819; 820. Mastín did not display any emotion or remorse to Brand on that day, or on December 9th. Id. at 761. Brand described Mastin’s demeanor throughout the day on December 21st as “[q]uiet, submissive,” id. at 819, and “[v]ery calm and quiet,” id. at 761.

Janet Payne-Hall

Janet Payne-Hall (“Payne-Hall”) was the secretary called in by Brand to make a typewritten transcription of Mastin’s statement on the evening of December 21st. Id. at 846-47. Payne-Hall explained that the answers she typed were not “verbatim, word for word answers from Mark Mas-tín.” Id. at 851. Rather, sometime Mas-tín and Brand “would discuss the- — the series of events before the — the question — an (sic) answer was (sic) typed, so they would discuss what the answer was relative to that question.” Id. Payne-Hall stated that she never typed anything that was not what Mastín said to Brand, and that there were no “thoughts” in the statement that had not been expressed by Mastín. Id. At the end of the statement, which was begun at 6:29 p.m., Brand asked Mastín if there was anything else he wanted to add. Id. at 852. Payne-Hall typed Mastin’s answer verbatim on the computer. Id. Contrary to Brand’s testimony, Payne-Hall did not recall Mastín reading the statement out loud before he signed it. Id. at 861.

John Lewis

John Lewis (“Lewis”), an inmate serving time at the Ontario County Jail, shared the same cell block with Mastín. Id. at 866; 876. On direct examination, Lewis testified to a fairly extensive criminal record, including attempted criminal possession of a weapon, forgery and grand larceny, driving while impaired by drugs and by alcohol, aggravated harassment, and criminal contempt. Id. at 866-74; see also id. at 900-12.

Lewis testified that he conversed with Mastín in the cell block on a regular basis. Id. About three weeks prior to trial, Mas-tín appeared “very upset” after learning that his statements were going to be admitted in court. Id. at 878. According to Lewis, Mastín “was ... ranting on about the neighbor, who was the fireman, claiming that he went over and broke two windows trying to save the children, and Mark said he had already broken one of the windows[.]” Id.; 919-20. Mastín told Lewis that the fire “had got going ... and he saw Lisa and Louis on the stairs and turned around and walked out to move the van.” Id. at 878-79.

Lewis asked Mastín if he “really thr[e]w a cigarette,” and Mastín stated that he “took some of the oil from the [kerosene] lamp [near the stairs], put it on the rug ... [a]t the bottom of the stairs.” Id. at 879. Mastín said that he lit it with his lighter and stood there and watched it burn. Id.

Mastín also told Lewis that he had argued heatedly with his wife about how late she had come home that night. During the argument, which woke Louis up, Mas-tín called her and the children “white trash” and said that he “wasn’t even sure if the kids were his.” Id. at 880. When Lisa asked him if he was coming upstairs, Mastín replied, “no way in hell.” Id.

Lewis testified that he was not receiving any leniency in return for his testimony, and that he understood that the sentence of one and one-half to three years he was going to receive for his pending weapons possession charge was mandatory and could not be reduced. Id. at 882. Lewis said that he came forward with his testimony because he could not “live with the thought of what happened to those children.” Id. Lewis denied that he made an extra effort to get Mastín to talk to him after he found out that Mastín had an upcoming trial date. Id. at 920.

Allen Emerson

Allen Emerson (“Emerson”), a private investigator specializing in fire investigations, testified that he was retained by the Ontario County District Attorney to provide an opinion as to the cause and origin of the December 9th fire. Id. at 935. In the course .of his investigation, Emerson found that the “vast majority” of the damage appeared to be on the northeast corner of the structure. Id. at 939. Emerson opined that the structural damage in the living room/kitchen area was “intensely worse” than in the children’s bedroom. Id. at 949.

Emerson testified that the fire entered the children’s room “from above, from the adjacent second story portion ... and rolled through the top of that, like an attic or space area, and also through the open doorway and into this section of the house, completely from that direction.” Id. at 952. Emerson testified that if the fire had originated the children’s room, the rafters “would have been consumed relatively quickly for the simple reason the bunk bed has a tendency to transfer the fire to the ceiling level.” Id. at 954. However, Emerson’s investigation revealed that the bottom side of the rafters facing toward the living room area were in relatively good condition. Id.

After examining the base of the staircase, Emerson characterized the level of damage there as “[exceedingly bad” and not consistent with normal fire behavior; the heat at floor level is typically much less than at ceiling level. Id. at 969. Emerson observed that the entire area was “charred deeply with total destruction occurring.” Id. That indicated to Emerson that “unusual burning” occurred at floor level. Id. at 970; 972. Emerson elaborated, stating that the “deep charring and alligatoring \i.e., roughness] and consumption of the first tread of the stairway” was “very” significant because it should have been a protected area. Id. at 973; see also id. at 975; 976; 977. The extreme damage Emerson observed to the bottom stair tread indicated a longer period of burn at floor level and an “unusual and unnatural” burn pattern behavior in that area. Id. at 977-78.

After reviewing all of the evidence from the fire scene, Emerson concluded that the fire “positively did not start underneath the stairs.” Id. at 983. Moreover, Emerson opined that the fire did not start by means of a cigarette being thrown through the stairs into the debris underneath the stairs. Id. After Emerson discovered a stain on the brick floor at the base of the stairway, he determined that the char pattern in that area indicated an “accelerant and wood flow pattern.” Id. at 985-86. Normally, one would not expect to see any combustion of brick flooring. Id. at 986.

Emerson testified that, based on his examination of the fire scene along with the information received from various witnesses (e.g., Lisa Mastin’s alleged escape route and Elise Knuppenburg’s observations), it appeared that the fire spread “rather rapidly” throughout the bottom part of the living room/kitchen area of the house. Id. at 991. Emerson’s investigation revealed no natural or accidental cause of the fire. Id. at 992.

He determined that the point of origin was “at the foot or very near the foot of the stairs, and possibly throughout part of the living room floor.” Id. at 993. It was Emerson’s opinion that the fire “[a]bso-lutely [did] not” originate in the children’s bedroom, given the presence of unburned material in that room, the “obvious” path of the fire and burn pattern, and the evidence of charring in the living room and adjacent area. Id. at 994; see also id. at 1007. Emerson opined that an accelerant was used to set the fire, in light of the degree of heat at floor level, the depth of charring, the total overall destruction of the structure at floor level, and the rapidity with which the fire appeared to spread throughout the first story. Id. Emerson testified that a “small rug saturated with oil” could have sustained the heat long enough to start the stair timber on fire. Id. at 1011.

Edward Mastín

Edward Mastín (“Mastín, Sr.”), the defendant’s father, testified that his son telephoned him from jail at some time during July of 1995. Id. at 1030. When asked whether the subject of oil lamps arose during that conversation, Mastín, Sr. replied affirmatively. Id. However, the trial court sustained the prosecutor’s hearsay objection. Id. at 1030-31. When Mastín, Sr. again mentioned that the July conversation was “when [his] son talked about the oil lamps,” the court had this answer stricken from the record. Id.

James Dano

James Dano (“Dano”), a former high school classmate of Lisa Mastín, testified that they had an extramarital affair in the autumn of 1995. Dano spent the night with Lisa at her house on several occasions while Mastín was on the road due to his truck-driving job. Dano testified that he observed at least one oil lamp standing on the television set in the Mastin’s living room and that there “could have” been more. Id. at 1054.

Mark Mastín

The defendant described a “troubled” marriage with his wife Lisa, which included two or three separations. Id. at 1061-62; 1171-76. He testified during the separations, he “usually” had custody of the children. Id. at 1062. Mastín admitted that during the beginning of his wife’s first pregnancy, he was not sure that Louis was his child. Id. at 1170. Mastín testified that, at his wife’s request, they had previously entered into an “open marriage” when he took an out-of-state truck-driving job; Mastín claimed at the time of the fire Lisa told him that she had stopped seeing other men. Id. at 1178. Mastín knew that Dano was spending nights at his house while he was away; he testified that he believed it was purely platonic and that Dano was there to help Lisa with the children. Mastín lost his truck-driving job in the fall of 1995, and the family was subsisting on welfare. Id. at 1183. Mas-tín conceded that the life he and his family were living was “depressing.” Id. at 1188.

December 8, 1995 was a Friday. That evening, after Mastín cooked dinner for the family, Lisa Mastín left for one of her “usual Friday night outings” at a local bar. Id. at 1072. On cross-examination, Mastín admitted that he called her a “slut” because of the way she was dressed, but claimed that it “was not said angrily[;][i]t was just a statement.” Id. at 1202.

After putting the children to bed, he watched television and played video games until he fell asleep on the couch. Id. at 1080. Lisa woke him up when she got home at 4:30 a.m. Asked on direct examination if he was “disgusted” at the lateness of her return, Mastín replied “a little bit,” but said that he was not angry. Id. at 1073; see also id. at 1081-83; 1188-89. Lisa got ready for bed, went into the children’s room to say good-night, picked up Louis, who had fallen asleep on the living room floor, and brought him upstairs. Id. at 1083. Lisa asked Mastín if he was coming up to bed, but he declined because he was “dead beat tired” and it was too much of an effort. Id. at 1084; 1206. Lisa made him put out the cigarette he was smoking, and then she went upstairs. Id. at 1085.

Mastín testified on direct examination that he then rolled over on the couch and fell asleep; he later awoke to a “glow and a sound.” Id. He looked over towards the children’s room and saw “flames near their doorway” and flames “on the top bunk.” Id. at 1086; 1088; see also id. at 1210-11; 1212; 1221. Mastín did not see his son Douglas in that bed. Id. at 1212-16; 1246-47. Mastín stated that he did not see fire anywhere else besides near the bedroom doorway and the bunkbed. Id. at 1087.

On cross-examination, Mastín testified that at first, he thought that the glow “at the top of the stairs,” was from the Christmas tree lights, even though the Christmas tree was behind him. Id. at 1210. Mastín stated that the glow was actually from flames in the living room, not from the children’s room. Id.

Mastín said he did not see a fire at the bottom of the stairs because when he looked towards the children’s room, he was “looking high, not low.” Id. at 1087. Mas-tín testified that he did not know if there were flames at the lower portion of the living room, even though when he woke up, he was lying down on the couch about a foot and a half off the floor. Id. at 1221. Mastín testified that “he tried to go straight in their room” but “got blocked by heat, flame, smoke.” Id. at 1087; see also id. at 1088; 1217-18. Mastín testified that he did not see any flames on the staircase when he woke up. Id. at 1222-23. Upon seeing Lisa wrapped in a blanket at the top of the stairs, Mastín yelled for her to get out of the house. Id. at 1089. Mastín testified that he did not notice flames on the stairs until sometime in between his first and second attempt to enter the children’s room. Id. at 1223. He conceded on cross-examination that he did not know what prevented Lisa from coming down the stairs at that point, even though there was no fire on the stairs. Id. at 1223-24.

As he backed into the children’s room on his third and last attempt, he felt “a lot of heat” on his back which caused him to run outside to try to extinguish the flames in the snow. Id. at 1090; 1219. However, Mastin’s shirt was never actually on fire. Id. at 1220. Mastín stayed outside and waited for his wife to hand Louis down to him; instead, Lisa jumped out of the window. Id. at 1090. Mastín, upon hearing that she had last seen Louis near the staircase, went back in the front door to try to find him. Id. at 1091. Mastín testified that he “couldn’t even get halfway across the — the living room” because “it was so full of smoke and heat.” Id.

With a car jack retrieved from a bucket near the garage, Mastín “pushed in” the window to the children’s bedroom and “[bjroke in the glass.” Id. at 1092. However, Mastín was “forced back from the window” by “thick black smoke.” Id. Ma-tin testified that he saw no flames in the room at that point, only “black.” Id. Mas-tín said that the “smoke was rolling out so thick” that he was unable to insert any part of his body into the window over his daughter’s bed. Id. at 1234. Mastín conceded on cross-examination that five or ten minutes later he saw Hood or Favreau “leaning over [in the window] where they found [his] daughter’s body[.]” Id. at 1242.

Mastín then walked to the front of the house and decided to move their van “before the fire crews got there.” Id. at 1093. As Mastín was getting out of the van, a man (Kenneth Favreau) approached him and asked if anyone was in the house; “panic[ked] and hysterical,” Mastín “yelled to him, my babies are in that house.” Id. After Mastín brought Favreau to the children’s bedroom window, “somebody” told him that he was needed at the Knuppen-burg’s “to help calm [his-wife] down.” Id. at 1095; 1239A10. At one point, Mastín attempted to leave the house, but “[s]ome-body stood in front of [the] door so [he] couldn’t get out of there” and told him it would “be better” if he stayed out of the way. Id. at 1097-98.

That day, Mastín told several people that he thought his son Douglas “might have gotten a hold of [his] lighter and started the fire.” Id. at 1099-1100; 1104-6. At that time, he was thinking back to a couch fire that occurred around Thanksgiving which, “as far as [he] knew, Douglas had set.” Id. at 1100-1. Mastín conceded that when Knuppenburg asked him how the fire had started, he did not say that he did not know. Id. at 1292. Mastín explained his lack of emotion during the fire as due to his being “worn out emotionally” after “trying to get [his] kids out all morning long” and his having “already been through a state of panic[.]” Id. at 1102.

About an hour after Mastín learned of his children’s deaths, Brand approached him about making a statement. Id. at 1104. Mastín testified that he told Brand that he “thought Douglas might have been playing with [his] lighter again, just like [he] told everybody else.” Id. Once at the OCSO, Mastín spoke with Brand and his partner for about five hours. Id. at 1107. Mastín testified that Brand read him his Miranda rights that day; Brand told him it was “just routine.” Id. at 1107-8. As a result of this interview Mastín gave a statement which Brand typed on the computer.

On December 21, 1995, Mastín testified that he was asked by Brand and his partner to accompany them to the OCSO for the purpose of verifying his December 9th statement. Id. at lili. Mastín again was read his Miranda rights by Brand who informed him it was “just routine.” Id. at 1114. After he verified his statement, Brand asked him if he wanted to take a polygraph test, and Mastín said yes. Id. at 1115. Mastín underwent the examination from about 11 a.m. until 1 p.m., at which time he was given a lunch break.

When Mastín met with Prescott again at about 1:30 p.m., Prescott allegedly told him that the “machine [was] 95 percent accurate” and that he “knows when somebody is lying, this machine doesn’t lie ... he’s there to help [him], [he] could erase a mistake.” Id. at 1120-21. Prescott then asked him how the fire started, and Mastín replied that he did not know. Id. at 1121.

Mastín testified that Brand came in and out of the room while he was speaking with Prescott, and appeared to be “getting angrier every time[.]” Id. at 1122. Brand told him that he “was sure [Mastín] started the fire, he was sure [Mastín] was lying, the machine said it and he knew it.” Id. Mastín said Brand “yell[ed]” and “scream[ed]” at him and threatened to “throw [him] up against the wall” if Mastín did not look at him. Id. 1122-23.

At around 3:30 p.m., Brand took over the questioning and told Mastín that in his opinion, Mastín “set [the fire] to kill that f* * *ing bitch” and that Mastín “didn’t care if [he] hurt those f* * *ing children in the process.” Id. at 1124. Brand told Mastín that “he was getting more pissed off every time he saw [him], every time [he] denied starting the fire.” Id. at 1124-25. Mastín said that he was “not a violent person” so this was “very scary” to him. Id. at 1125.

When Prescott resumed the interrogation at about 4:45 p.m., he told Mastín that he wanted him to say the words, “I started the fire.” Id. Prescott told Mastín that he would not be able to “help him” any more with regard to Brand if Mastín did not say those words. Id. at 1125-26. Mastín testified that he informed Prescott that he “[could] not come out and say that because [he] didn’t do it.” Id. at 1126. He told Prescott, “[h]ow can I come out and say something like that when it goes everything (sic) that I believe in myself.” Id.

About 5:15 p.m., Mastín testified that he repeated the words, “I started the fire” to make sure that Prescott would not leave him alone with Brand. After saying it, he told Prescott that he did not feel better and it was “the worse (sic) lie [he] ever told in [his] life.” Id. at 1127. Brand eventually re-entered the room and began telling Mastín the ways that he thought Mastín had started the fire — with “a lighter on [his] kid’s blanket that he was sleeping under,” a “lighter under the staircase or in the northeast corner of the house,” and the “cigarette flicking scenarios.” Id. at 1128.

Mastín testified that even though he denied each version, Brand began writing down exactly what he (Brand) was saying. Id. Mastín claims that Brand was the one who selected the staircase scenario; he merely told Brand that if he were to “do something that stupid” he would have flicked the cigarette toward the stairs. Id. at 1274. When Brand was finished, he showed Mastín the statement and asked him to sign it. Id. at 1129-30. Mastín claimed that he did not bother to read it, since Brand was reading it aloud as he was writing. Id. at 1137. Mastín testified that he signed it, “[b]ecause [he] didn’t want [Brand] to change it back to [him] using the lighter some place in the house later on, making it — make it sound like some terrible person[.]” Id. at 1131; 1272.

When Brand asked him to provide a written statement, Mastín agreed, thinking that he had no choice at this point. Id. at 1132. Brand read him the questions that were on the secretary’s computer screen and Mastín answered them. Id. at 1138. Throughout the process, Mastín claimed that Brand looked “mad, angry.” Id. at 1141. Mastín testified that the first typewritten statement was essentially Brand’s version of events, and that Brand had the secretary type things that flatly contradicted what Mastín actually said. See id. at 1141 et seq.; see also id. at 1267-71; 1278. For instance, Mastín said that he did not go up to bed with Lisa because he was “too tired,” but Brand instructed the secretary to type that Mastín was “angry” at his wife. Id. at 1142. Mastín testified that he complained to Brand about this. Id. at 1144. Even though he testified earlier on direct examination that he was a little disgusted at Lisa’s late return, he stated that he did not use the word “disgusted” at any time when talking to Brand, and that Brand chose to put that in the statement. Id. at 1144-45.

Mastín testified that Brand made up the last question and answer in the statement, telling Mastín “it would make [him] sound like a better personf.]” Id. at 1146. Mas-tín testified