Dunn v. State

• Court: Arkansas Supreme Court
• Writing for the Court: Jim Hannah
• Citation: Dunn v. State, 371 Ark. 140, 264 S.W.3d 504 (Ark. 2007)
• Decision Date: 04 October 2007
• Docket Number: No. CR 07-96.,CR 07-96.
• Parties: Andre Peter DUNN, Appellant, v. STATE of Arkansas, Appellee.

264 S.W.3d 504

371 Ark. 140

Andre Peter DUNN, Appellant, v. STATE of Arkansas, Appellee.

No. CR 07-96.

Supreme Court of Arkansas.

October 4, 2007.

Gary McDonald, El Dorado, and William A. McLean, Little Rock, for appellant.

Dustin McDaniel, Att'y Gen., by: Nicana C. Sherman, Ass't Att'y Gen., for appellee.

JIM HANNAH, Chief Justice.

Appellant Andre Peter Dunn was convicted of first-degree murder and sentenced to a term of life imprisonment. For reversal, Dunn argues that the circuit court erred in finding that he lacked standing to object to a search of the decedent's apartment. He contends that the search violated his constitutional rights pursuant to the Fourth Amendment of the United States Constitution and Article 2, § 15 of the Arkansas Constitution. Dunn also contends that the circuit court erred when it allowed into evidence results of luminol testing conducted at the apartment. Finally, Dunn argues that the circuit court erred in denying his motion for directed verdict because there was insufficient evidence at trial to support his conviction. As this is a criminal appeal in which a sentence of life imprisonment has been imposed, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1-2(a)(2). We find no error and, accordingly, we affirm.

Dunn argues that there was insufficient evidence to sustain his conviction for firstdegree murder. While the sufficiency-of-the-evidence argument was not Dunn's first point on appeal, due to double-jeopardy concerns, we review the issue before reaching other issues on appeal. See Isom v. State, 356 Ark. 156, 148 S.W.3d 257 (2004). In reviewing a challenge to the sufficiency of the evidence, we determine whether the verdict is supported by substantial evidence, direct or circumstantial. Malone v. State, 364 Ark. 256, 217 S.W.3d 810 (2005). Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Tillman v. State, 364 Ark. 143, 217 S.W.3d 773 (2005).

Circumstantial evidence may constitute substantial evidence to support a conviction. Ross v. State, 346 Ark. 225, 57 S.W.3d 152 (2001). Guilt can be established without direct evidence and evidence of guilt is not less because it is circumstantial. Id. The longstanding rule in the use of circumstantial evidence is that, to be substantial, the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused. Id. The question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. Id. We will disturb the jury's determination only if the evidence did not meet the required standards, leaving the jury to speculation and conjecture in reaching its verdict. Brunson v. State, 368 Ark. 313, 245 S.W.3d 132 (2006).

On November 23, 2003, Dunn placed a 911 call advising that he had found his girlfriend, Wandala Creer, dead in her apartment at 300 B Smith Street in Magnolia. Officers Mark Bridges and Michael Cauldwell of the Magnolia Police Department responded to the 911 call. When Bridges arrived, he was met outside the apartment by Dunn. Dunn told Bridges that he had used his key to unlock the door of the apartment, went inside, and found Creer's dead body on the couch. Dunn said he then covered Creer's body with a comforter. Bridges told Dunn to wait outside; then, Bridges entered the apartment and found Creer's body on the couch. Bridges observed what appeared to be blood stains on the wall near the couch, and he noticed that Creer had a large amount of blood around her throat area. Bridges and Cauldwell then walked through the apartment to make sure there was no one else inside who might be injured or deceased. Bridges stated that, at the time he and Cauldwell walked through the apartment, he did not consider Dunn a suspect; rather, he believed that Dunn was a "bereaved boyfriend."

Bridges asked Dunn if he would be willing to go to the police department and speak to a detective. Dunn agreed to go to the police station, and an officer transported him there. Dunn was not placed under arrest.

Meanwhile, officers led by Detective Todd Dew conducted a search of the apartment. Dew testified that he observed in the living room blood spatter on the walls, the ceiling, and the couch. He lifted the comforter from Creer's body and began taking photographs of the scene. In addition, officers dusted for fingerprints, took blood samples, and gathered other evidence from the scene.

After completing the crime-scene investigation, Dew went to the police department to speak to Dunn. In a taped statement, Dunn told Dew that he last saw Creer on a Friday evening, and that he had left the apartment after the two had an argument. Dunn said that he tried to call Creer sometime that weekend, but was unable to reach her. He said that he returned to the apartment Sunday morning to find Creer dead.

Dew stated that he asked Dunn if he could take his fingerprints for purposes of elimination. Dunn agreed, and during the fingerprinting process, Dunn told Dew that he needed to tell him something. Dunn then admitted that he had actually found Creer's body on Friday night, rather than Sunday morning when he called the police. Dunn stated that he found Creer, touched her body, and went into the bathroom to wash his hands. He then retrieved some clothing and personal items from the apartment and left. Dunn told Dew repeatedly that he did not kill Creer.

Dew obtained a search warrant and returned to the apartment on November 24, the following day, for luminol testing to detect the presence of blood in the apartment that had been washed away or cleaned. Dew testified that his luminol testing in the bathroom showed areas consistent with the presence of blood on the floor, in the sink, on the wall behind the sink, and in the bathtub.

At trial, Dr. Charles Kokes, Chief Medical Examiner at the Arkansas State Crime Lab, testified that he had conducted the autopsy of Creer's body. He stated that the cause of death was based on both blunt-force injuries and sharp-force injuries. He testified that the blunt-force injuries consisted of a series of lacerations or tears in the skin on the back of her head, her forehead, the top of her head, and the right side of her head, with the majority of blows being to the left side of her head. One of the blows on the left side of Creer's head fractured her skull, causing hemorrhaging and bruising to her brain. The sharp-force injuries consisted of four stab wounds and cuts on the front of the neck. Dr. Kokes stated that one of these injuries was relatively larger and deeper than the others, extending deep into the musculature of the upper neck and extending internally across the base of the tongue. Dr. Kokes could not specify an exact time when death occurred, because of the intervening events before the autopsy, but stated that decomposition had begun. He determined that the manner of death was homicide.

Dunn testified at trial that most of the "disagreements" he and Creer had were about money. James Shaw testified that on Friday, November 21, 2003, he had gone next door to Creer's to return Dunn's cell phone, and that Dunn was present and commented that Creer "accused me of getting her money, [but] it's right there. Look. She's walking all over it," and put the money back on the coffee table. No testimony was presented about finding any money on the coffee table after Creer's body was discovered. Shaw also testified that, the same day, at Creer's apartment, he observed a metal pipe. Shaw stated that he believed he might have seen the pipe there prior to that day.

Shaw testified that he had borrowed Dunn's cell phone on Friday to call Nichole Hunter to pick him up and take him to the convenience store so he could get some cigarettes. He stated that it was getting dark when she got there to pick him up. Hunter testified that while she was waiting for Shaw in the parking lot about 5:45 p.m., she saw Dunn in Creer's ground-floor apartment, taking his shirt off, looking at it, then putting it back on, and acting fidgety. Hunter took Shaw to the store, and they returned a few minutes later, just before 6:00 p.m., and Hunter noticed that Creer's apartment door was closed and the lights were off.

Dunn admitted that he sometimes spent money on crack cocaine or marijuana. Frank Moss testified that he gave Dunn between $40 and $60 worth of crack on credit on Friday, November 21, 2003. He added that Jason Shepard was at his house when Dunn came to get the crack. Dunn admitted that he bought drugs from Moss, but he claimed that he had not gotten any the night Creer was murdered. Moss testified that he told Dunn that if he did not pay, he "was going to bust his mother fucking head." Shepard testified that he overheard Moss tell Dunn that something would happen to him if he did not have Moss's money. Shepard said that when Dunn returned to Moss's house later that night, he heard Dunn tell Moss, "[r]emember what you told me earlier about if I didn't have your money? I just had to do another mother fucker just the same way." Moss testified that when Dunn came over the second time that night, Dunn told him, "you know what you told me you were going to do to me ... [w]ell shit, I just had to bust a some-bitch's head."

In his description of his relationship with Creer, Dunn alleged that she would frequently get drunk and fall asleep on the couch with the apartment door wide open and he would have to get her up and put her to bed. In contrast, Creer's mother testified that her daughter regularly slept on a couch instead of a bed and had done so for many years. She said that her daughter would never leave a front door open and would make sure that it was closed and locked.

Dunn contends that the circuit court erred when it failed to grant his motion for directed verdict because the State failed to present...