Dunn v. Warden
| Decision Date | 23 December 2020 |
| Docket Number | CAUSE NO. 3:18CV178-PPS/MGG |
| Parties | DEWAYNE A. DUNN, Petitioner, v. WARDEN, Respondent. |
| Court | U.S. District Court — Northern District of Indiana |
Dewayne A. Dunn filed a pro se petition for writ of habeas corpus challenging his conviction in State court for the murder of Angel Torres. Torres and Dunn were friends and neighbors. They lived in adjacent apartments on the second floor of a small apartment building. They shared a deck with stairs leading down to ground level. The basic question at trial was whether Torres died falling down the stairs or, as the State theorized, he was bludgeoned to death by Dunn after he landed at the bottom. The case against Dunn was not a strong one. Indeed, the only two eyewitnesses supported Dunn's theory that Torres died from the fall. The State's case relied almost exclusively on the testimony of two experts, a forensic pathologist and a blood spatter specialist. Dunn's lawyer made no effort to contradict the testimony of the State's experts. Dunn was convicted of first degree murder and sentenced to a lengthy term of imprisonment. It is trial counsel's alleged ineffectiveness in failing to consult an expert pathologist that is presently before me in this habeas corpus petition. And because I find that Dunn received ineffective assistance of counsel in the trial of his case, and but for his lawyer's subpar performance, there is a reasonable probability that he would have been acquitted, habeas relief will be granted.
In deciding this habeas petition, I must presume the facts set forth by the State courts are correct. 28 U.S.C. § 2254(e)(1). Unless otherwise noted, the facts set forth below come from the opinion of the Indiana Court of Appeals. See Dunn v. State, 959 N.E.2d 935 (Ind. Ct. App. Dec. 22, 2011) (table), trans. denied 963 N.E.2d 1119 (Ind. Feb. 13, 2012) (table); DE 24-5 at 2-4. Occasionally, where the Court of Appeals' factual discussion is incomplete, I have augmented it and, when I do, I cite directly from the trial transcript (Tr.) or the transcript from the post conviction relief hearing (PCR Tr.) (Both can be found at Docket Entry 25.)
In September 2008, Dunn lived in an apartment in Elkhart, Indiana with his former girlfriend, Letha Sims, and two of her sons. Their rental unit was located on the second floor of the apartment building, next door to another unit rented by Angel Torres. The units shared a common balcony, with an exterior staircase leading to the ground. Dunn, Sims and Torres were friends. They would frequently sit on the porch socializing, smoking and drinking. Tr. 500-06.
On the evening of September 3, 2008, Damen Collins was riding his bike near the apartment building when he witnessed an altercation between a man and a woman taking place on the balcony. Although Collins was approximately 100 feet away fromthe balcony when he saw the dispute, nothing was blocking his view. Tr. 356. He claims that it was dusk at the time. Tr. 365-66. But this was plainly incorrect; the 911 call that he placed was received at 11:40 p.m. Tr. 384. Anyway, Collins saw what he believed to be a man and woman fighting, heard the woman screaming for help and saw her being pushed down the stairs. Another man then came out of his apartment, but he was shoved back inside by the man on the balcony. At that point, Collins called 911 and left the area. As he was leaving, Collins heard loud noises coming from the area of the fight, but he was unsure what they were. When asked if he could describe the aggressor, Collins testified that he didn't have a clear view of the matter. Tr. 363-64.
The first police officer arrived on the scene eight minutes after receiving the dispatch. At that time, Torres was lying at the bottom of the staircase in a pool of blood. He was unresponsive and his breathing was very labored. A baseball bat was positioned underneath Torres's body, and Jamar Sims (Letha's son) and Dunn were standing nearby. Dunn was very agitated and shouting that he "didn't do anything." Tr. 394.
At the time of Torres's death, Jamar resided in the apartment with Dunn, his mom and his little brother. Jamar was a junior in high school. Tr. 595-96. Jamar goes by the name "Willie" and that is how I will refer to him. Tr. 588. Willie testified that he was present on the night Torres died and actually witnessed the altercation. Here's what he says happened: Their apartment was on the second floor of the building and an outside staircase led to a small balcony from which you could go into either their apartment orTorres's. Tr. 590-93. The balcony was small, maybe four feet by ten feet. Tr. 595. And the staircase was dangerous. Tr. 562, PCR Tr. 31. According to Willie, earlier in the day, several people, including Letha, Dunn, Torres and other friends, were all on the balcony drinking. Tr. 597. Willie went to take a nap in the downstairs bedroom. (There is an interior staircase that leads down to the apartment's bedroom). Willie was awakened by Dunn who was screaming and hollering. Tr. 600-01. Willie followed Dunn upstairs and, while he was getting a drink of water, Dunn walked outside; Willie then heard an argument ensue between Dunn and Torres. Tr. 601-02. Specifically, Willie heard Dunn say "don't hit me with that bat." Tr. 601-02. Willie looked outside and saw Torres and Dunn fighting. He then saw Torres strike Dunn on the shoulder with a baseball bat. Tr. 604.
Willie's testimony that he saw Torres strike Dunn with a bat was corroborated by medical reports and photographs taken of Dunn that evening. Dunn was taken to the hospital and photos were taken of his back. Tr. 714-15. Those photos show abrasions on Dunn's shoulders consistent with being struck by a bat. Tr. 717-19. When asked at the hospital how he got the injury, Dunn told the evidence technician that he was indeed struck by a baseball bat. Id. Dunn also told the responding police officer the same thing. Tr. 396-97.
After seeing Torres strike Dunn with the bat, Willie saw the two wrestling over it. Both were perilously close to the top of the stairs. From Willie's vantage point, Torres had his back to the stairs and Dunn was facing Torres with his back to Willie. As Dunnand Torres were struggling over the bat, Willie saw Torres fall backwards down the steps. Tr. 604, 606-07. Willie was equivocal about whether Torres fell or was pushed down the stairs. Tr. 610. On direct examination, he told the prosecutor he really wasn't sure if Torres fell or was pushed. Id. On cross, he was more emphatic that Torres was not pushed. Tr. 630. Torres was likely unsteady on his feet. He was wearing sandals and was extremely drunk at the time. Tr. 488, 484. In either event, whether he was pushed or he fell, Torres went down the stairs while struggling with Dunn over the bat. Tr. 630. According to Willie, Torres landed on the bannister first, then flipped over it and hit the pavement below head first. Tr. 608-09. Willie ran down the stairs to help and saw Torres in a pool of blood. Tr. 611-12. From there, Willie ran to flag down a police officer. Tr. 612-13. At no time during the altercation did Willie see Dunn strike Torres with the bat or anything else. Tr. 624, 630.1
Willie's mother, Letha, although not an eyewitness to the confrontation between Dunn and Torres, heard the confrontation and largely corroborated Willie's account of events. According to Letha, by the date of the incident in question, she and Dunn were no longer on good terms. Tr. 506. Although they continued to live with one another, they were no longer intimate. Tr. 507. Although Letha and Torres had sex on one occasion prior to his death, she described her relationship with Torres as more like close friends. Tr. 508, 510. On the day in question, Letha went next door to Torres's apartmentto have a beer while Dunn went to take the dog for a walk. Tr. 510-14. One beer led to a few which led to some Bacardi Rum. Tr. 512-13. When Dunn got home from walking the dog, he joined them. Tr. 514-15. They were all laughing and having a good time until an argument between Torres and Dunn broke out. Tr. 514. Letha did not recall what prompted the argument except to say that Torres and Dunn argued a lot, especially when they were drinking. Tr. 514.
As noted above, Torres was extremely intoxicated upon his death. According to the emergency room doctor who worked on him later that evening, his blood alcohol content was .294 making him, in the words of the attending doctor, "significantly under the influence of alcohol." Tr. 484-85. This is not surprising since he had been drinking most of the day.
According to Letha, after the argument broke out between Torres and Dunn, it spilled out onto the porch. Tr. 516. Letha and her son (Andre, not Willie) went outside to break up the fight, and then she went back inside Torres's apartment. Tr. 517-18. Torres and Dunn each went back into their own apartments. Tr. 518. At some point later, Dunn kicked the door to get back inside Torres's apartment. Tr. 519. Torres then grabbed a baseball bat, and Torres and Dunn went back outside. Id. Through the screen door she could hear the commotion outside as the two were tussling, and she heard Dunn tell Torres — consistent with what Willie heard — to "stop hitting me with the bat." Tr. 519-20. She remained inside because she was scared. Id. Finally, she heard a thud, went out on the porch, looked down and could see Torres at the bottom of thestairs with the bat underneath him. Tr. 521-25. When Letha came out of the apartment and onto the deck, she saw Dunn standing at the top of the stairs; she then saw him descend the stairs and begin tugging on Torres's arm, imploring him to get up. Id.
As noted above, the first officer to arrive on the scene, Jason Runyon, observed Dunn standing next to Torres's body exclaiming,"I didn't do anything!" Tr. 394. He further told the officer that Torres had struck him with the bat and...
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