Bunnell v. State
| Decision Date | 05 October 2020 |
| Docket Number | P1-2005-0161A,C.A. No. PM-2012-4062 |
| Parties | KATHERINE BUNNELL, Petitioner, v. STATE OF RHODE ISLAND, Respondent. |
| Court | Rhode Island Superior Court |
DECISION
Before this Court is Katherine Bunnell's Application for Post-Conviction Relief pursuant to G.L. 1956 § 10-9.1-1. For the reasons set forth herein, this Court denies Bunnell's Application for Post-Conviction Relief.
On October 29, 2004, Bunnell and Gilbert Delestre left their two children and Bunnell's three nephews at their apartment with a fifteen-year-old babysitter. Bunnell, 47 A.3d at 222; Trial Tr. vol. II, 184-86. They left at about 7 p.m. and agreed to return by 11:30 p.m. Bunnell, 47 A.3d at 222; Trial Tr. vol. II, 183-84. As one of the children, three-year-old TJ, was having difficulty sleeping, the babysitter let him lie down on the couch, as she lied down on the floor next to him. Bunnell, 47 A.3d at 222. She was awakened when Bunnell and Delestre returned at 2:30 a.m. thenext morning, with Bunnell screaming obscenities concerning spilled milk and food. Id. After the babysitter noted that TJ had been on the couch, Delestre went upstairs and the babysitter heard three or four slaps followed by TJ crying. Id. Bunnell then went upstairs, returning downstairs carrying TJ by his arms, repeatedly striking TJ with her knee as he dangled in front of her. Id. at 222-23. Bunnell then dropped him to the ground, and TJ landed on his stomach and hit the side of his face on the floor. Id. at 223. Bunnell then pulled TJ toward the mess, dropping him and hitting him in the back and chest several times with a closed fist. Id. While TJ lay on the floor after falling a third time, Bunnell took TJ's wrist, holding his head just off the floor and slapped him back and forth across his face four times so that the opposite side of his face hit the floor with each strike. Id.
Bunnell then yanked TJ toward a closet, letting him fall backwards and hitting his head on the closet door, where Bunnell slapped TJ again and poured milk over him as he cried. Id.; Trial Tr. vol. II, 242-46. After Bunnell offered to drive the babysitter home, the babysitter turned to see TJ in midair as if thrown by Delestre. Bunnell, 47 A.3d at 223. TJ landed on his stomach with his left leg twisted underneath him. Id. at 224; Trial Tr. vol. II, 258. Bunnell picked TJ up and, when looking for her keys, carried him over to the stairs. Bunnell, 47 A.3d at 224. Delestre then picked TJ up, brought him up two stairs, and then placed him back down. Id. Bunnell then drove the babysitter home.2 Id.
After a 911 dispatch call,3 the Woonsocket Fire Department arrived at Bunnell's apartment at 3:31 a.m. Id. A lieutenant present noticed "traumatic injuries" and blood and vomit aroundTJ's mouth. Id. The lieutenant also noticed bruising and swelling around TJ's eye and on his head. Id. Woonsocket police officers then spoke with Bunnell, Delestre, and Delestre's cousin about what happened. Trial Tr. vol. I, 57-59. At that time, Bunnell told an officer that she and Delestre returned home from a club and she waited in her car for the babysitter to come out so that she could bring the babysitter home. Id. at 60-63, 104-06, 113, 124-25, 130, 136. Bunnell also stated that while she was bringing the babysitter home, Delestre discovered TJ in his bed, not breathing. Trial Tr. vol. I, 62, 106, 113, 136.
The next morning, Bunnell was interviewed by police again. Trial Tr. vol. VI, 891-92. At that time, she admitted to smacking TJ in the face several times to discipline him but stated that Delestre was "pushing and throwing" TJ "around" and repeatedly hit TJ in the face. Trial Tr. vol. III, 478; vol. VI, 892, 896. Bunnell again stated that she brought the babysitter home, but this time said that when she returned, she found TJ in his bed, unresponsive. Trial Tr. vol. III, 478-79. She believed TJ to be dead but attempted to put cold water on his face to revive him. Id. at 479. The police then interviewed the babysitter and noticed inconsistencies between her statements and those given by Bunnell. Id. at 484-88. That same day, police interviewed Bunnell a third time to confront her about these inconsistencies. Id. During this interview, Bunnell admitted to hitting TJ while she was upstairs with him but denied bringing him down the stairs and throwing him on the floor. Id. at 489. Bunnell also admitted to slapping TJ in the face several times once downstairs and also to pouring milk on his head.4 Id. at 490.
The night of the incident, TJ was transported to Hasbro Children's Hospital where a CAT scan showed that there was a large subdural hematoma or hemorrhage on the left side of TJ's brain and the brain had significant swelling. Bunnell, 47 A.3d at 225. On October 31, 2004, an MRI revealed cell or tissue death in the brain. Id. That day, TJ was pronounced brain dead and was taken off life support. Id.
Dr. Dorota K. Latuszynski performed TJ's autopsy.5 Id. The autopsy revealed "multiple blunt traumatic injuries of the head, including injuries on the left cheek, the left ear, the temple area, the right ear, as well as injuries present on the forehead." Id. TJ also had bruising on his forehead, eye, cheekbone, and around his ear. Id. He had a large patterned injury on his left cheek that was consistent with being slapped. Id. There was also significant injury to TJ's lips and tongue which were considered significant because:
Id. at 226.
In addition, TJ suffered from "subgaleal hemorrhag[ing]" on the top and sides of his head due to blunt-force trauma. Id. TJ's brain also had "'a large left-sided subdural hematoma' and 'a slight shift of the structures of the brain from the left side to the right side.'" Id. The brain also had bruising and swelling. Id.
TJ also had "acute compression fractures" on his vertebrae which are consistent with "'application of some sort of blunt-force trauma . . . to the top of [his] head' or 'a fall where someone lands directly on their feet or their buttocks[, such that there is] an up and down type of application of force.'" Id. Dr. Gillespie testified that he believed "the totality of the injuriesinflicted on [TJ] . . . led to his death." Id. Dr. Gillespie also testified that he believed the injuries TJ sustained were consistent with the babysitter's description of the events. Trial Tr. vol. IV, 593, 597-99.
Gerard Donley had been a trial attorney with a focus on criminal litigation for over twenty-five years by the time of the Bunnell trial. He had handled dozens of felony trials and at least ten murder trials. By court-appointment in November 2004, Mr. Donley represented Bunnell on the charge of murder. Approximately a year before the trial, he had planned to move to Italy with his wife. The trial was delayed several times, so he postponed his travels until the jury returned its verdict. By then, he had ensured that Bunnell had substitute counsel. As a court-appointed attorney, he was able to apply to the Court for the payments of expenses, such as an expert witness. Upon entering the case, Mr. Donley commenced his review of the police reports, discussed the case with Bunnell, and spent considerable time on research, particularly in an effort to have the charge amended to manslaughter, and to consider the law regarding conspiracy. He represented Bunnell at a multiple-day bail hearing that was held jointly for Delestre and Bunnell. Mr. Donley had the recordings of the Grand Jury proceedings and the bail hearing transcript available to review.
Prior to the trial, the defense theory of the case was that Bunnell had slapped TJ, but he was still alive and conscious when Bunnell left to take the babysitter home. Hence, defense would claim that the slaps did not cause the death. After some research, Mr. Donley located Dr. Arden as a potential witness. Mr. Donley contacted Dr. Arden in May 2007 and determined Dr. Arden could testify in July. Oddly, Mr. Donley never followed up by retaining Dr. Arden or forwardinghim the medical records. Mr. Donley concluded, from his medical and legal review, that an expert would not have foundation to determine which defendant caused the death and began to change his theory of how to present the defense.
Mr. Donley also believed that Dr. Latuszynski, the medical examiner who testified at the bail hearing, could not easily be attacked, and at the bail hearing inferred that TJ died from the cumulative effect of multiple blows. He believed that Dr. Latuszynski was impartial, and Mr. Donley could work with her testimony at trial.
At the murder trial for Bunnell, the state brought in another medical examiner, Dr. Gillespie, to substitute for Dr. Latuszynski. Mr. Donley does not fault himself for failing to object to Dr. Gillespie, he believed that any variation of Dr. Gillespie's testimony from Dr. Latuszynski's autopsy could be undone on cross-examination, after all it was another doctor's case. At trial, Dr. Gillespie testified that the fall down the stairs may have caused the different injuries. Dr. Gillespie also said Bunnell's slaps could have been fatal. Dr. Gillespie, unlike Dr. Latuszynski, did not believe that TJ would have necessarily become unconscious immediately after the fatal blow. To further impugn Delestre, Mr. Donley sought the introduction of Delestre's inconsistent statements about the child's fall.
At the post-conviction trial, Mr. Donley found his decision not to focus on an independent pathologist to be well-founded. He decided "not to . . . chase shadows." Hr'g Tr. 17, Oct. 28, 2016....
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