Dallas v. Dunn, CASE NO. 2:02-CV-777-WKW

CourtUnited States District Courts. 11th Circuit. Middle District of Alabama
Writing for the CourtW. Keith Watkins CHIEF UNITED STATES DISTRICT JUDGE
PartiesDONALD DALLAS, Petitioner, v. JEFFERSON S. DUNN, Commissioner, Alabama Department of Corrections, Respondent.
Decision Date14 July 2017
Docket NumberCASE NO. 2:02-CV-777-WKW

DONALD DALLAS, Petitioner,
v.
JEFFERSON S. DUNN,
Commissioner, Alabama Department of Corrections, Respondent.

CASE NO. 2:02-CV-777-WKW

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

July 14, 2017


MEMORANDUM OPINION AND ORDER

Petitioner Donald Dallas filed this federal habeas corpus action pursuant to 28 U.S.C. §2254 challenging his October 1995 Montgomery County conviction for capital murder and sentence of death. For the reasons set forth below, Petitioner is entitled to neither habeas corpus relief nor a Certificate of Appealability.

I. BACKGROUND

A. The Offense

There is no genuine dispute as to the facts of Petitioner's offense. The day of his arrest for the murder of 73-year-old Hazel Liveoak, Petitioner gave police a videotaped statement in which he admitted he and an accomplice (1) kidnapped the elderly Mrs. Liveoak from a grocery store parking lot in Prattville, Alabama, on the afternoon of July 12, 1994, (2) drove her in her own vehicle to a location south of

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Montgomery where, despite her protests that she had a heart condition, he convinced her to get into the trunk of her car with a promise to release her once they reached her bank, (3) drove Mrs. Liveoak to a parking lot in south Montgomery where Petitioner and his accomplice convinced her to furnish the access code for her bank card and withdrew money from her bank account using her bank access card after promising to notify police of her location, (4) abandoned Mrs. Liveoak's vehicle (with her still in the trunk) in an isolated area of a K-Mart parking lot where it was discovered the following day containing Mrs. Liveoak's lifeless body, and (5) despite Petitioner's repeated assurances and promises, made no effort to contact or notify anyone of Mrs. Liveoak's location or perilous predicament.1 Petitioner

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testified at the guilt-innocence phase of his trial in a manner consistent with his post-arrest statement to police.2

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B. Indictment

In October 1994, a Montgomery County grand jury returned a seventeen-count indictment charging Petitioner with (1) two counts of capital murder, i.e., intentionally causing the death of Hazel Liveoak (a) by inducing a heart attack by confining her in an automobile trunk during a kidnaping, to wit, abducting her with the intent to accomplish or aid the commission of felony robbery and (b) intentionally causing the death of Hazel Liveoak by confining her in an automobile trunk and causing death during a robbery, i.e., the theft of a VISA card by force with the intent to overcome her physical resistance causing serious physical injury, (2) three counts of fraudulent use of a credit card, (3) one count of theft of property by deception, and (4) eleven counts of unauthorized use of a communications device.3

C. Guilt-Innocence Phase of Trial

The guilt-innocence phase of Petitioner's capital murder trial commenced on October 17, 1995.

1. The Prosecution's Evidence

The prosecution presented Mrs. Liveoak's son who testified regarding the circumstances surrounding her disappearance and his delivery of a spare key to her

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vehicle to a law enforcement officer in Millbrook.4 A university maintenance worker testified that (1) he heard a radio broadcast regarding a missing person driving a maroon Chrysler with an Elmore County license plate, (2) he observed a red vehicle with an Elmore tag parked in a very isolated location within a K-Mart parking lot in South Montgomery, and (3) he called police when he got home.5 The former police chief of Millbrook testified he (1) delivered the key to Mrs. Liveoak's vehicle to Montgomery police officers at the K-Mart parking lot and (2) was present when other law enforcement officers opened her automobile trunk and discovered her lifeless body.6 A Montgomery police patrol officer testified regarding the isolated location of Mrs. Liveoak's vehicle within the K-Mart parking lot and the conditions inside her passenger compartment when the vehicle was discovered, including the fact no keys were found inside the vehicle.7

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A Montgomery police evidence technician testified that (1) he photographed Mrs. Liveoak's lifeless body after it was discovered inside the trunk of her car, (2) her vehicle was located 350 feet from the K-Mart store, 202 feet from the AmSouth Bank, and 166 feet from East South Boulevard, (3) after her body was removed, her vehicle was taken to a police facility and processed for fingerprints, (4) the entire crime scene was photographed and videotaped, (5) an earring matching one found inside the trunk was found outside the lip of the trunk, (6) no fingerprints were found inside the interior of the vehicle, but (7) a palm print was found on the outside of the vehicle's trunk.8 A latent fingerprint examiner testified that Petitioner's palm print matched that lifted from the driver's side of the trunk lid of Mrs. Liveoak's vehicle.9

The state medical examiner testified that (1) he performed an autopsy on the 73-year-old Mrs. Liveoak on July 14, 1994, (2) Mrs. Liveoak had bruising on the right side of her head, the backs of both hands and wrists, and her right biceps, (3)

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she also had non-life-threatening minor cuts to both her palms, (4) the bruising and lacerations to her hands were consistent with efforts to bang on a trunk lid to get out, (5) the bruising to her right arm was consistent with someone grabbing her in an effort to control or manipulate her, (6) her heart displayed extreme arthrosclerosis, i.e., blockage, in the descending coronary artery, (7) he found evidence she had suffered a prior heart attack but had recovered from same, (8) he did not find evidence of a recent heart attack, (9) her general cardiac health was "very questionable," (10) there was evidence the blood supply to the heart was markedly diminished, (11) he found severe pulmonary edema, i.e., fluid backed up into the lungs, (12) her heart was failing, (13) her cause of death was cardiac failure, (13) the manner of her death was homicide, (14) while Mrs. Liveoak apparently was able to do her daily chores and take care of her personal affairs, she lacked the cardiac reserve to be able to handle the extremely stressful confines in which she was placed, i.e., being confined in a hot, dark, space for hours, and (15) her heart could not take the stress, which is why he concluded her death was the result of "homicide by heart attack."10

A Montgomery Police Detective testified that (1) there were no signs of life but there was a strong odor of spoiled milk and a body when he arrived at the K-

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Mart parking lot around 2010 hours on July 13, 1994, (2) no other cars were parked near Mrs. Liveoak's vehicle, (3) when the trunk lid was opened, there was condensation on the inside lid of the trunk, (4) Mrs. Liveoak's pants were stained and there were visible bruises and scratches on her hands, (5) paramedics present when the trunk was opened found no signs of life in Mrs. Liveoak's body, (6) her body was taken away for autopsy, (7) no car keys were found inside Mrs. Liveoak's vehicle, (8) her purse was found but not her billfold, (9) after speaking with Tony Bowen, he and other law enforcement officers developed Petitioner and Carolyn "Polly" Yaw as suspects, (10) he discovered Petitioner and Yaw had registered at a motel on July 13, 1994, (11) a search for a white vehicle driven by "Blake" led to the arrests of Petitioner and Yaw after a brief chase, (12) he gave Petitioner his Miranda warnings, (13) Petitioner indicated that he understood his rights, read his rights form, and signed same, (14) he advised Petitioner he was charged with capital murder and faced the death penalty or life in prison, (15) Petitioner did not appear to be intoxicated or under the influence of alcohol or narcotics, (16) Petitioner was cooperative, (17) during his initial interview, Petitioner stated that (a) he found Mrs. Liveoak's vehicle with the keys inside it in the Wal-Mart parking lot in Prattville, (b) he drove the vehicle to the K-Mart in Montgomery, (c) he opened the trunk of her vehicle, (d) he found her body, and (e) he closed the trunk lid and left the scene, (18) after further questioning, Petitioner admitted that (a) he grabbed the lady in the

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WalMart parking lot, (b) she screamed and hollered as he drove her vehicle to Greenville, (c) he put the lady in the trunk of her car despite the fact the victim said she had a bad heart, (d) he told her he would send someone to get her out once he left her, (e) he passed out after doing crack the evening of the kidnaping and did not wake until the following morning, and (f) when he awoke he figured it was too late to get help for the lady, (19) a knife was recovered from the rear passenger side floorboard of the white vehicle in which Petitioner was riding at the time of his arrest, and (20) Petitioner gave a voluntary videotaped statement that was not induced by any promises, threats, or other forms of coercion.11

Dennis Anthony Bowen testified that (1) he met Petitioner in July 1994 when he went to Chester Foley's house to smoke crack cocaine, (2) at the time of Petitioner's capital murder trial, he had been in an outpatient drug treatment program for about a year, (3) in July 1994 he drove Petitioner and Carolyn "Polly" Yaw to WalMart to shoplift cigarettes to get money to buy drugs, (4) Petitioner ran out of the store carrying a television in a box, (5) Petitioner threw the box into the bed of Bowen's truck, wrestled with a store employee, and then jumped into the truck, (6) Bowen drove away, (7) Bowen and Petitioner were both later arrested in connection

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with the incident at WalMart, (8) through conversations with Chester Foley, Petitioner, and Yaw, Bowen became aware that Petitioner and Yaw claimed they robbed and placed an old lady in a trunk and got money with the lady's bank card, (9) when Bowen asked Petitioner and Yaw about their claims, Petitioner sarcastically responded that he...

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