Duvall v. Bell
| Decision Date | 31 January 2012 |
| Docket Number | CASE NO. 2:09-CV-11663 |
| Parties | DONALD DEAN DUVALL, #476526, Petitioner, v. THOMAS K. BELL, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
DONALD DEAN DUVALL, #476526, Petitioner,
v.
THOMAS K. BELL, Respondent.
CASE NO. 2:09-CV-11663
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION
Dated: January 31, 2012
I. Introduction
This is a habeas case brought pursuant to 28 U.S.C. § 2254. Michigan prisoner Donald Dean Duvall ("Petitioner") and his co-defendant brother, Raymond Wilbur Duvall Jr., were convicted of two counts of first-degree murder, MICH. COMP. LAWS § 750.316, following a jury trial in the Oscoda County Circuit Court and were sentenced to concurrent terms of life imprisonment without the possibility of parole in 2003. In his pleadings, Petitioner raises claims concerning the admission of hearsay, the jury instructions, prosecutorial misconduct, the non-disclosure of evidence, the failure to produce res gestae witnesses, an amendment to the information, the coercion of witnesses, the effectiveness of trial and appellate counsel, and cumulative error. For the reasons set forth below, the Court denies the petition for a writ of habeas corpus. The Court also denies a certificate of appealability and denies leave to proceed in forma pauperis on appeal.
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II. Facts and Procedural History
Petitioner's convictions arise from the deaths of two hunters near Mio, Michigan in 1985. The Michigan Court of Appeals summarized the case as follows:
Defendants' convictions arise from the disappearance and suspected killing of two hunters who never returned from a weekend hunting trip in November 1985, in the Mio area of northern Michigan. The two men, David Tyll and Brian Ognjan, had planned to travel to Tyll's family cabin in White Cloud and visit a friend, Dennis Gallop, in Mio, but they never arrived at either location. According to the prosecutor's theory of the case, defendants, along with other unidentified individuals, beat the victims to death after they became involved in an argument. The victims' bodies were never found, nor were their car or other personal effects ever located. The prosecutor's case principally relied on the testimony of a local resident, Barbara Boudro, who claimed to have witnessed the killings, and on various statements allegedly made by defendants admitting to their participation in the killings.
People v. Duvall, No. 252720, 2005 WL 1249238, *1 (Mich. App. May 26, 2005) (unpublished).
At trial, the victims' family members and friends testified about the victims' hunting plans for the weekend of November 22, 1985. They confirmed that the men left in Tyll's 1981 black Ford Bronco that Friday afternoon, likely for the Mio area where another friend lived, and planned to come back on Sunday evening. They never returned home. The victims' families reported them missing to the authorities, newspaper articles were written about them, and searches were conducted, but the men and their vehicle were never found. Eventually the men were declared dead.
Several witnesses reported seeing the victims in the Mio area that weekend. Mio resident Larry Barker testified that two men in a dark Ford Bronco pulled into his driveway for directions on at 7:00 or 8:00 p.m. on Friday or Saturday night. They appeared to have been drinking, were looking for M-55, and were going hunting. Barker saw a television report about the missing hunters a month later, recognized them as the men he met, and contacted the police.
David Welch testified that he talked to the victims at Walker's Bar in Mio around 9:30 or
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10:00 p.m. that Saturday. They told him that they were staying at Ma Deeter's in Luzerne and were deer hunting. They also said that they were looking for women, planned to see some school friends in Luzerne and South Branch, and did not want to meet Tyll's family in White Cloud. David suggested places where they could meet women such as Northwoods and the Ski Ranch, also known as Linker's. Ognjan went to Northwoods while Tyll stayed at Walker's Bar. By the time Ognjan returned, Tyll had been cut off from drinking. The men left the bar. When Welch went outside, he saw a 1981 black Ford Bronco in the parking lot, but no one was in it. Welch admitted that he used to drink every day, but said that he had stopped doing so.
Beverly Pasternak, the owner of Walker's Bar, confirmed that Welch and the two victims were at the bar on Saturday night. She recalled telling the barmaid to stop serving Tyll and allowing him to wait for Ognjan. The men left the bar between 10:00 and 11:00 p.m. They returned to the bar at noon the next day and had a soft drink and a beer. Two weeks later, the sheriff came in and asked about the two hunters. Pasternak identified the men and gave the sheriff a flannel jacket that she thought Tyll had left at the bar.
Cindy Steinhurst, an employee at Linker's Bar, testified that the victims came into the bar and ordered drinks on a weekend night during deer hunting season. She told police that she thought it was around 9:00 p.m. on Sunday night. Ognjan went to the bathroom and when he returned, Tyll was paying for the drinks. Ognjan was upset with Tyll because he wanted to pay for the drinks and told Steinhurst that he would kick her ass if she took Tyll's money. Steinhurst told Steve Linker, the bar owner, that she did not want to wait on the men. Linker talked to the men. Steinhurst did not see an argument in the bar that night. She did not know Petitioner or his co-defendant and did not recall seeing them or Barbara Boudro at the bar that evening. She admitted that if the bar was
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busy she would not know who was there that night.
The prosecution's main witness, Barbara Boudro, was the only person who testified that she witnessed the crime. Boudro lived in a house on Mapes Road about one and a half miles from Linker's Bar in 1985. Boudro testified that she and a friend named Ronald Emery went to Linker's Bar on Saturday night to celebrate his first buck. While she and Emery were playing pool, the two hunters came into the bar. One of them rubbed against her and she told them to keep their hands to themselves. They wanted to play pool for money, but she declined. Petitioner, who was known as Co-Co, the co-defendant, who was known as JR, and a third brother named Rex Duvall entered the bar. The two hunters were acting "nasty" and creating a disturbance with other people in the bar. Boudro was going to call the police, but someone told her they had already been called. Boudro overheard Petitioner on the telephone saying that he could use help. Sherman Heiling and another man arrived and went to Petitioner's table. The man she did not know asked where he could get marijuana. She told him, and he and Rex Duvall left the bar, returning later. Boudro was subsequently given beer, left the bar with Emery and a man named Dick Baker, and went home. Boudro admitted that she had seven or more drinks that evening.
While at home with Emery, she heard noises and went into the kitchen. She heard men arguing and cursing. One man said, "you are dead, you rotten mother fucker." Boudro also heard a sound like metal hitting something. Boudro and Emery went outside and followed a path through the snow to a clearing. They stayed behind some bushes and saw a Bronco and a pickup truck with their lights on. Ognjan was trying to run away, but the men restrained him. Petitioner and the co-defendant were beating Tyll, who was crying for help. Petitioner hit Tyll with something that sounded metallic while the co-defendant kicked and punched him. Petitioner struck Tyll's head and
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it exploded. Ognjan collapsed and the men laughed because he had urinated on himself. Petitioner and the co-defendant then beat Ognjan. Boudro went home and Emery followed her a few minutes later. Within five minutes, Petitioner and the co-defendant knocked on her door. Petitioner told her that they knew her and her family and said, "You saw nothing, You heard nothing. Pigs have to eat too." The two men left. Boudro and Emery followed them in their car until the men stopped. Boudro and Emery drove past and got lost before returning home. The next morning, she and Emery went to the clearing and saw what looked like blood on the ground. Boudro testified that Ronald Emery and Sherm Heilig had since died.
Boudro testified she once told a county sheriff, with whom she had been having an affair, about the incident. She was scared to come forward. She had received warnings every time the police came by to investigate the missing hunters. She had been threatened and told that she had pretty granddaughters. One of her dogs was shot in the head and another dog was run over in her yard. Boudro recalled Michigan State Police Detective Lesneski coming to her house in 1998 and speaking with him in 1999. She was upset and nervous and told him that he was going to get her killed. Boudro said she would talk if a woman named Kim talked. She told him that the two hunters were killed near her home and that their car was taken apart in a gray building on the corner. She initially told Lesneski that Ronald Emery was...
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