Dunn v. Neal

• Decision Date: 12 August 2022
• Docket Number: 21-1169
• Citation: Dunn v. Neal, 44 F.4th 696 (7th Cir. 2022)
• Parties: Dewayne A. DUNN, Petitioner-Appellee, v. Ron NEAL, Warden, Indiana State Prison, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

44 F.4th 696

Dewayne A. DUNN, Petitioner-Appellee,

v.Ron NEAL, Warden, Indiana State Prison, Respondent-Appellant.

No. 21-1169

United States Court of Appeals, Seventh Circuit.

Argued September 27, 2021

Decided August 12, 2022

Michael Ausbrook, Attorney, Bloomington, IN, for Petitioner-Appellee.

Jesse Drum, Attorney, Office of the Attorney General, Indianapolis, IN, for Respondent-Appellant.

Before Rovner, Hamilton, and Kirsch, Circuit Judges.

Rovner, Circuit Judge.

Dewayne Dunn was convicted in Indiana state court for the murder of Angel Torres and sentenced to a term of imprisonment of 58 years. The state's case against Dunn was based largely on the testimony of two pathologists. In a state court post-conviction proceeding, Dunn sought a new trial, arguing that his trial counsel was ineffective for failing to consult with any forensic pathologist. The court denied that relief, and the Indiana Court of Appeals affirmed the post-conviction court's decision. Dunn subsequently filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 based on the ineffective assistance of trial counsel, and the district court granted a conditional writ of habeas corpus. The state now appeals that grant of the writ to this court.

The district court, in assessing the merits of the pro se habeas petition, properly limited its consideration to only the facts as presented to the state court and did not conduct its own evidentiary hearing. See Shinn v. Martinez Ramirez , ––– U.S. ––––, 142 S. Ct. 1718, 1739–40, 212 L.Ed.2d 713 (2022). As did the district court, we recite the facts as set forth in the state court record and decision, which are not challenged by the parties.

I.

The incident that formed the basis of the criminal conviction occurred in Elkhart, Indiana, outside the apartment building in which Dunn resided. At the time, Dunn lived in a second-floor apartment with his former girlfriend, Letha Sims, and two of her sons. That apartment had a balcony with an external staircase to the ground that was shared with the adjacent apartment in which Angel Torres, the victim, resided. Although Sims and Dunn were still living together, according to Letha by the date of the incident they were no longer on good terms and were no longer intimate. Sims and Torres had sex on one occasion, but Sims described her relationship with him as one of close friends. Dunn and Torres were friends, and would frequently sit on the porch socializing, smoking and drinking.

On September 3, 2008, Damen Collins was riding his bike near the apartment building when he saw an altercation between persons later identified as Dunn and Sims taking place on a balcony, heard Sims screaming for help, and saw her being pushed halfway down the stairs. He saw another man, identified as Torres, come out of his apartment and Dunn pushed him back into his apartment. Collins was about 100 feet away from the balcony when he saw the altercation, and nothing was blocking his view. Collins then called 911 and left the area. Although Collins claimed that it was dusk at the time of the incident, that assertion is clearly wrong because the 911 call was received at 11:40 p.m.

Officers arrived on the scene about eight minutes after receiving the dispatch and found Torres lying at the bottom of the staircase in a pool of blood, unresponsive and with labored breathing. A baseball bat was underneath his body. Dunn was nearby along with Sims's son Jamar "Willie" Sims. Dunn was very agitated and shouting that he "didn't do anything."

Torres subsequently died as a result of his injuries, and Dunn was convicted of first degree murder. The evidence at trial consisted of expert testimony from the state by a forensic pathologist and a blood spatter expert, and, for the defense, eyewitness testimony from Sims and her son Willie, a high school junior.

Willie testified that he witnessed the altercation between Dunn and Torres that night, and recounted it as follows. Earlier in the day, several people including Sims, Torres, Dunn and other friends were all on the balcony drinking. Willie went to take a nap and awakened to hear Dunn screaming and hollering. Willie followed Dunn upstairs and while Willie was getting a drink of water, Dunn walked outside and Willie heard an argument ensue between Dunn and Torres, and heard Dunn say, "don't hit me with that bat." Willie then looked outside and observed Torres and Dunn fighting and saw Torres strike Dunn on the shoulder with a baseball bat. Willie saw the two wrestling over the bat after Torres struck Dunn with it. Both were perilously close to the stairs, with Dunn facing the stairs and Torres with his back to the stairs. As they struggled over the bat, Willie saw Torres fall backwards down the steps, landing on the banister first and then flipping over it and hitting the pavement below head first. Willie ran down the stairs to help and saw Torres in a pool of blood. He then ran to flag down a police officer. He never saw Dunn strike Torres, either with the bat or anything else.

Sims testified as well regarding the events of that day. She stated that earlier that day, she went next door to Torres's apartment to have a beer while Dunn took the dog for a walk. One beer led to more and to some Bacardi Rum, and when he returned from the walk Dunn joined them. They were all laughing and having a good time until an argument between Torres and Dunn broke out. Sims could not recall what prompted the argument, but said that Torres and Dunn argued a lot, especially when they were drinking. The argument spilled out onto the porch, and Sims and her other son went outside to break it up. She then went back inside Torres's apartment, and Torres and Dunn each went back into their apartments. At some time later, Dunn kicked the door to get back into Torres's apartment. Torres then grabbed the baseball bat and Torres and Dunn went back outside. Sims could hear the commotion outside through the screen door, and heard Dunn tell Torres to "stop hitting me with the bat." She went out onto the porch when she heard a thud, looked down, and saw Torres at the bottom of the stairs with the bat under him. When Sims came out of the apartment, she saw Dunn standing at the top of the stairs and observed him descend the stairs and begin tugging on Torres's arm, imploring him to get up.

The first officer arrived on the scene eight minutes after receiving the dispatch and observed Dunn standing next to Torres's body exclaiming "I didn't do anything!" Dunn told the officer that Torres had struck him with the bat and that a scuffle had ensued. The officer stated that Torres was lying on the baseball bat when he arrived, and that Dunn was upset but not acting aggressively. Another officer interviewed Sims, and her statements to him were consistent with her subsequent trial testimony, including telling the officer that she heard Dunn tell Torres to stop hitting him with the bat, and that she heard a thud, went outside, and saw Torres on the pavement below.

Other evidence corroborated at least some of that witness testimony. For instance, Dunn was taken to the hospital that evening, and photos of his back show abrasions on his shoulders consistent with being struck by a bat. In addition, when asked at the hospital how he got those injuries, Dunn told the evidence technician that he was struck by a baseball bat. He told the responding officer the same thing. The testimony as to the drinking that occurred that day was also corroborated by hospital records. According to the emergency room doctor who worked on Torres later that evening, Torres's blood alcohol content was .294, establishing that he was significantly under the influence of alcohol. Finally, in addition to the evidence that the bat was under Torres's body on the ground, forensic examination of the bat determined that Torres's blood was found on the handle and middle portion of the bat but not the barrel of the bat, which was consistent with the claims that the bat was used to strike Dunn but not Torres.

Torres died from his injuries, and an autopsy was conducted by Dr. Chrenka, who is board certified as an anatomical, clinical, and pediatric pathologist, but is not a board-certified forensic pathologist. Although he occasionally does autopsies, most of Dr. Chrenka's work does not involve doing them. He identified the cause of death as massive blunt trauma to the head. The determination of the manner of death, such as whether it could be deemed a homicide, suicide, or accident, was deemed to be "uncertain."

Nearly two years after Torres's death, the state charged Dunn with murder in his death. The state's theory was that Torres's death resulted from a beating that occurred after the fall, and that some object was used to beat him but not necessarily the bat. In fact, at closing argument, the state conceded that the evidence indicated the bat was not the weapon used in the beating.

At trial, the state presented expert testimony from a blood spatter expert and a forensic pathologist. Dr. Scott Wagner was a board-certified forensic pathologist who had testified on cases hundreds of times, 98% of them for the state. He was retained by the state to review the autopsy of Dr. Chrenka. Dr. Wagner testified that Torres had multiple skull fractures, with part of his skull "crushed like gravel" and his ribs broken as well as his clavicle, and that he experienced severe trauma. On cross-examination, defense counsel merely confirmed that Dr. Wagner was being called for his second opinion on the cause and manner of death. On redirect examination, Dr. Wagner testified that Dunn's injuries were not consistent with someone merely falling down the stairs.

Dean Marks, a sergeant of the Indiana State Police, who had specialized training in blood spatter analysis, testified as to that evidence. He testified that the pattern of Torres's blood that was found on the wall at the bottom of the staircase was caused by "impact spatter," which means that some...