Dunaway v. State

• Decision Date: 23 October 1998
• Citation: 746 So.2d 1021
• Court: Alabama Court of Criminal Appeals
• Parties: Larry D. DUNAWAY, Jr. v. STATE.

746 So.2d 1021

Larry D. DUNAWAY, Jr. v. STATE.

CR-97-1223.

Court of Criminal Appeals of Alabama.

October 23, 1998.

Rehearing Denied December 18, 1998.

Paul W. Brunson, Jr., Clayton; and Donald J. McKinnon, Eufaula, for appellant.

Bill Pryor, atty. gen., and Kathryn D. Anderson, asst. atty. gen., for appellee.

BASCHAB, Judge.

The appellant, Larry D. Dunaway, Jr., was charged with two counts of capital murder for the killings of Tressa M. Patterson and James Anthony Bernard Patterson. The murder of Tressa Patterson was made capital because it occurred during the commission by the appellant of arson in the first or second degree. See § 13A-5-40(a)(9), Ala.Code 1975. The murder of James Patterson was made capital because the victim was less than 14 years of age. See § 13A-5-40(a)(15), Ala. Code 1975. The jury found the appellant guilty of both counts of capital murder. Following a sentencing hearing, the jury, by a vote of 7-5, recommended that the appellant be sentenced to life imprisonment without the possibility of parole for the murder of Tressa Patterson. By a vote of 10-2, the jury recommended a sentence of death by electrocution for the murder of James Patterson. The trial court accepted the jury's recommendations and sentenced the appellant to life imprisonment without the possibility of parole for the murder of Tressa Patterson and to death by electrocution for the death of James Patterson.

The evidence showed that the appellant lived with his girlfriend, Tressa Patterson, and her son, James Patterson, in a mobile home in Barbour County. On the evening of January 8, 1997, the mobile home burned. Investigators subsequently discovered the burned bodies of Tressa Patterson and James Patterson, who was 22 months old, in the remains of the mobile home.

Around 9:00 p.m. on January 8, 1997, the appellant went to Jody Lynne Drenner's residence and told her his mobile home was on fire. He told Drenner he had gone to Clayton half an hour earlier and returned to find his mobile home on fire. The appellant stated that he hoped his girlfriend and her child were not in the burning mobile home.

The appellant also went to the mobile home of John Phillips and asked if Tressa and James were there. When Phillips said they were not there, the appellant hesitated and then told them about the fire. The appellant did not appear to be upset when he spoke about the fire. In fact, Phillips stated that the appellant did not seem upset until later when Jody Drenner was holding him and trying to calm him down. Phillips also testified that he saw the appellant on a regular basis and that he had always appeared to him to be normal. He stated that the appellant had never done anything to make him think the appellant was insane.

Mary Lou Russaw testified that, on the night of January 8, 1997, the appellant stopped at her mobile home and asked her if Tressa was with her. She told him that Tressa was not there and must be at home. The appellant then told Russaw that Tressa was not at home and that "[t]he house is on fire." Later, at the scene of the fire, Russaw asked the appellant where Tressa and James were. The appellant first responded that he did not know, but then stated that they were in the mobile home when he left.

Randy Hickman was present at the scene of the fire. As he walked toward the burning mobile home, the appellant told Hickman he had sold some drugs and someone had just dropped him off. Hickman noticed that the appellant did not show much emotion initially, but began to show more a few minutes later. He also testified that the appellant seemed normal and did not appear to be suffering from a mental illness.

Annie Lou McCoy, Tressa Patterson's mother, saw the appellant at the scene of the fire. When she asked him where Tressa and James were, he first told her they were at her house. She responded that they were not at her house, and he changed his story. He told her Tressa was inside the mobile home on the couch, probably sleeping, and James was with someone named Patricia. He also stated that the stove probably started the fire.

Don Dykes, who owned the mobile home park in which most of the witnesses to the fire lived, testified that the appellant had done work for him on three occasions. He stated that the appellant followed instructions and did the work properly. Dykes also testified that the appellant never acted "unusual" or like he did not have good sense.

Deputy State Fire Marshal Edward Paulk investigated the fire. Paulk testified that the fire started in the living room area and that it consumed the center of the room. He determined that the fire was not caused by accidental or natural causes. He also testified that alcohol could have been used as an accelerant, but that evidence it had been so used would have been destroyed by the water used to extinguish the fire.

In the course of his investigation, Paulk interviewed the appellant. The appellant made an oral statement and gave a written statement about the fire. In his oral statement, the appellant claimed that he was not present when the fire began. He stated that he had ridden with a "crack-head" in a red pickup truck into Clayton, where he hoped to sell some crack cocaine. He claimed that he decided not to sell the crack, that the man dropped him off on Highway 239 near his mobile home, and that he walked home from there. The appellant claimed that he first saw the fire while he was walking home. He stated that the last time he saw Tressa, she was lying on the couch and James was with her.

Subsequently, the appellant admitted to Paulk that the story about the man in the red truck was not true. Paulk then asked the appellant if he could take a written statement from him, and the appellant agreed. In that statement, the appellant admitted that he and Tressa had been having problems in their relationship since Thanksgiving of 1996. He stated that Tressa had told him to move out by December 26, 1996, that he had not moved out, and that they had been arguing since December 26, 1996. On or about January 5, 1997, when the appellant still had not moved out, Tressa removed his clothing from the mobile home.

On January 8, 1997, the appellant watched over James while Tressa was at work. He stated that he and Tressa got into another argument when she came home from work, and that he put a rifle to his head to show his "love" for her. He claimed that he pulled the trigger, but it did not fire. He then laid the rifle on his lap and accidentally fired it at Tressa. The appellant stated that Tressa gasped when she was struck by the first bullet. The noise caused him to panic and he accidentally fired the rifle a second time. The appellant told Paulk that after he determined that Tressa was dead, he said to James, "Man, yo momma's dead." He then poured rubbing alcohol over Tressa's body and beside the fireplace in the living room. He laid James down near his mother's body and set the alcohol on fire. He then fled to a nearby wooded area and hid the rifle.

The appellant testified at trial in his own defense. He testified that his mother suffered from paranoid schizophrenia, and that he had heard voices telling him what to do since he was a child. His trial testimony about the murders was similar to his statement to Paulk, except that he testified that voices started talking to him while he was in the mobile home. He stated that he did not remember everything he did between the time he shot Tressa and the time he realized he was in the woods, and he added that he was not in control of himself at the time. He contended that he did what the voices told him to do. He testified that he made up the story about going to Clayton because he was scared and nervous. He also admitted that, in spite of his statements immediately following the fire, he knew Tressa and James were in the mobile home when it was burning.

During his testimony, the appellant admitted that he had previously been convicted, pursuant to a guilty plea, of car-jacking in Louisiana. He also admitted that a weapon had been used to commit the crime.

Dr. James Lauridson, the medical examiner, testified that Tressa died from a gunshot wound to the chest. He determined that she was badly injured before the appellant started the fire, but she probably did not die instantly. There was no carbon monoxide in her blood and no sign of inhaled smoke or soot in her airways. Therefore, Lauridson concluded that she may not have been breathing when the fire began.

Lauridson testified that James's body showed no signs that he had suffered any injuries before the fire. There was a great deal of soot in his windpipe, indicating that he was probably alive when the fire became fully developed. Toxicological tests revealed that James had a fatal level of carbon monoxide in his blood. Lauridson stated that James died because he choked to death while inhaling smoke and other by-products of the fire.

To determine what, if any, accelerant the appellant used to start the fire, Mary Rhodes Holt, a forensic scientist employed by the Department of Forensic Sciences, performed a gas chromatograph test on the residue collected under the couch where Tressa's body was found. Holt specifically tested this residue for the presence of rubbing alcohol, but the test did not detect any alcohol. Holt explained that alcohol is one of the most difficult accelerants to discover in an arson investigation because it evaporates quickly due to the heat of fire and because it readily mixes with water, the primary agent used to extinguish fires.

The appellant initially entered a plea of not guilty. Subsequently, he amended his plea to assert that he was not guilty by reason of mental disease or defect. The trial court ordered an evaluation to determine whether the appellant was suffering from a mental disease or defect at the time of the offense; whether the symptoms of any disease or defect contributed to the commission of the...