Dunaway v. State (Ex parte Dunaway)

• Decision Date: 18 April 2014
• Docket Number: 1090697.
• Citation: 198 So.3d 567
• Parties: Ex parte Larry Dunaway. (In re Larry DUNAWAY v. STATE of Alabama).
• Court: Alabama Supreme Court

198 So.3d 567

Ex parte Larry Dunaway.

(In re Larry DUNAWAY

v.STATE of Alabama).

1090697.

Supreme Court of Alabama.

April 18, 2014.

Rehearing Denied Sept. 18, 2015.

Randall S. Susskind and Charlotte R. Morrison, Equal Justice Initiative, Montgomery, for petitioner.

Luther Strange, atty. gen., John C. Neiman, deputy atty. gen., and Thomas R. Govan, Jr., asst. atty. gen., for respondent.

MURDOCK, Justice.

Larry Dunaway¹ filed a Rule 32, Ala. R.Crim. P., petition in the Barbour Circuit Court (“the Rule 32 court”) challenging his 1997 convictions for the capital murder of his girlfriend Tressa M. Patterson and Patterson's 22–month–old son James Patterson.² See Dunaway v. State, 746 So.2d 1021 (Ala.Crim.App.1998) (affirming Dunaway's convictions) (“Dunaway I ”), aff'd, 746 So.2d 1042 (Ala.1999), cert. denied, 529 U.S. 1089, 120 S.Ct. 1724, 146 L.Ed.2d 645 (2000). The Rule 32 court entered an order denying Dunaway's petition, and the Court of Criminal Appeals affirmed. See Dunaway v. State, 198 So.3d 530 (Ala.Crim.App.2009) (“Dunaway II ”). Dunaway petitioned this Court for a writ of certiorari to review the Court of Criminal Appeals' decision in Dunaway II. We granted the writ to consider (1) Dunaway's claims of misconduct by four jurors who allegedly failed to disclose pertinent information during voir dire; (2) Dunaway's claim that the Rule 32 court erred by denying his Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), claims that he was denied due process as a result of District Attorney Boyd Whigham's failure to disclose alleged relationships between him and certain jurors; and (3) Dunaway's claim that he received ineffective assistance of trial counsel during the sentencing phase of his trial. Because we conclude that Dunaway is entitled to a new trial based on his juror-misconduct claim, we pretermit any discussion of his nondisclosure claim as to Whigham and his ineffective-assistance-of-counsel claim.

I. Background Facts and Procedural History

The following is from the rendition of facts by the Court of Criminal Appeals in Dunaway I:

“The evidence showed that [Dunaway] 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.

“....

“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 [Dunaway]. [Dunaway] made an oral statement and gave a written statement about the fire. In his oral statement, [Dunaway] 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. [Dunaway] 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. [Dunaway] 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, [Dunaway] admitted to Paulk that the story about the man in the red truck was not true. Paulk then asked [Dunaway] if he could take a written statement from him, and [Dunaway] agreed. In that statement, [Dunaway] 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 [Dunaway] still had not moved out, Tressa removed his clothing from the mobile home.

“On January 8, 1997, [Dunaway] 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. [Dunaway] 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. [Dunaway] 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.

“[Dunaway] 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 [to neighbors to the contrary] immediately following the fire, he knew Tressa and James were in the mobile home when it was burning.

“During his testimony, [Dunaway] 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 [Dunaway] 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.

“....

“[Dunaway] 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 [Dunaway] 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 offense, and, if so, in what manner; whether [Dunaway] was capable of assisting in his own defense; and whether he was competent to stand trial. Dr. Michael D'Errico, a forensic psychologist and certified forensic examiner for the State of Alabama, examined [Dunaway] pursuant to the trial court's order and found [Dunaway] to be competent to stand trial.

“D'Errico met with [Dunaway] for one to two hours on June 5, 1997, interviewing him and administering a psychological test. D'Errico also reviewed reports by law enforcement officers, Paulk's report, statements of several witnesses, and a statement [Dunaway] made to deputies about the offenses. Finally, D'Errico reviewed records pertaining to prior psychological treatment provided to [Dunaway], including treatment he received during 1992 and 1993 at the Methodist Children's Home of Ruston, Louisiana, and he conducted a telephone interview with [Dunaway's] stepmother, who ‘had been partially responsible for [his] upbringing since he was age five.’ Based on his evaluation of [Dunaway], D'Errico testified as follows:

“ ‘At the time I did my evaluation, I thought there was a possibility that Mr. Dunaway was experiencing symptoms of anxiety and possibly depression. But, overall, I didn't have enough information to make a clear diagnosis of a severe mental illness.

“ ‘... At the time I did my evaluation, I felt that Mr. Dunaway did not meet the usual criteria for what we call severe mental disease or defect.’

“Dr. Fernando Lopez, a psychiatrist, evaluated [Dunaway] for the defense. He first talked to [Dunaway] on September 5, 1997, and subsequently talked to him on three other occasions. His evaluation included interviewing, psychological testing, and reviewing records relating to prior treatment. Lopez testified, in part, as follows:

“ ‘Q. Based on your evaluations, can you give us and the jury some idea of how [Dunaway] reacted to certain questions or stimuli or whatever?

“ ‘A. We interviewed the young man and tested him, and we reviewed some previous information we had from Louisiana, mostly, and interactions with other psychiatrists and counselors, and also reviewed forensic examinations by my colleagues, and my observations indicated that this man is suffering from mental illness.

“ ‘Q. Okay. And at the current time you feel he is suffering from mental illness?

“ ‘A. This has been going on gradually for the past several years, and is coming to develop one of these days into an illness....

“ ‘The illness I'm talking about is schizophrenia. This is an illness of young adults, mostly males, between 15 and 25 years of age. And half the women but later, 25 to 35 years of age. And it is incipient,

...