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Dunn v. Smith

United States District Court, E.D. Wisconsin

December 31, 2019

LARRY H. DUNN, JR., Petitioner,



         Having fully exhausted his state court remedies, Petitioner Larry H. Dunn, Jr., seeks federal relief under 28 U.S.C. § 2254 from his state court conviction for felony murder. Dunn claims that his conviction resulted from the ineffective assistance of his trial counsel in violation of his Sixth Amendment rights. For the reasons that follow, Dunn's petition will be granted.


         In the early morning hours of May 10, 2011, the body of Andrew Schuckman was found lying face up on a concrete patio behind Peg & Lou's Bar in Racine, Wisconsin. There was a laceration to the back of his head and a small pool of blood under it. His blood/alcohol concentration was later reported as .298. Dr. Lynda Biedrzykcki, the medical examiner who conducted the autopsy, concluded that Schuckman had sustained multiple injuries to his face and head, but that death was caused by traumatic injuries to the brain resulting from a massive skull fracture.

         Dunn and Michael Crochet were arrested after witnesses reported they had been involved in an altercation with Schuckman in the parking lot of the bar on the night of May 9, 2011. Although he initially denied striking Schuckman, Dunn later admitted to a police investigator that he slapped Schuckman in the face when Schuckman approached Crochet in a threatening manner. Dunn told the investigator that Schuckman fell when he slapped him and his head bounced off the pavement. Dunn also told the investigator that he believed Schuckman was seriously injured and immediately notified the bartender. When the bartender did not go outside to check on him, Dunn said he went outside and observed Schuckman still laying on the ground unconscious. Dunn said he checked on Schuckman two or three more times to make sure he was still breathing before the bartender came out to assist.

         Arthur Kuemin, the bartender, initially told police that Schuckman got up and walked away. At trial, Kuemin testified that when he went outside, Schuckman was sitting up on the ground, that there were no physical marks on him, and that he seemed to be in the same condition as when Kuemin had escorted him out of the bar earlier that evening. Kuemin testified that he escorted Schuckman with his arm around him and brought him to the back area where he left Schuckman seated on the grass leaned against a patio chair that was set completely in the grassy area. Dkt. No. 17-6 at 192:01-94:16. Sometime after midnight, Schuckman's body was found on the concrete patio approximately five feet from where Kuemin indicated he had left him. Schuckman was lying on his back with fresh blood flowing from his head and dried blood coming from his mouth and running horizontally to the ground on both sides of his face. Schuckman's shirt was pulled up above his chest and his keys and wallet were found near his right arm. See Oct. 2, 2019 Hr'g Ex. 1.

         The State charged Dunn and Crochet with felony murder, theft from a corpse, and battery, all as a party to the crime and as a repeater, in violation of Sections 940.03, 940.19(1), 943.20(1)(a), (e), 939.05, and 939.62. Unlike the common law and traditional felony murder statutes, Wisconsin's felony murder statute, Wis.Stat. § 940.03, does not require that death occur in the commission of a felony. In this case, the predicate crime for the charge against Dunn was misdemeanor battery.

         Dunn was represented at trial by Attorney Travis Schwantes. Attorney Schwantes testified that, from the beginning, he regarded the privilege of self-defense as Dunn's primary defense. Dkt. No. 11-6 at 17:15-20. In the months leading up to trial, however, Attorney Schwantes recognized what he later described as “weaknesses” in the State's theory that Dunn caused Schuckman's death. In emails sent to the prosecutor, Attorney Schwantes noted the inconsistency between, on the one hand, the Medical Examiner's opinion that Schuckman would have died immediately from the severe head trauma he sustained and, on the other, the bartender's claim that he spoke with Schuckman after the altercation in the parking lot with Dunn and that he had helped Schuckman walk to the back patio. On October 19, 2011, Attorney Schwantes sent the prosecutor an email stating:

It appears the medical examiner concluded the cause of death to be direct head trauma resulting in immediate death, not bleeding which leads to a herniated brain injury that causes death hours later (which is what I thought the [autopsy] report meant).
The [medical examiner's] conclusion does not square with [bartender] Arthur Kuemin's statements (both of them) that he was talking with the decedent just after the altercation and even later on. The [medical examiner's] conclusion is that the head hit something and the person died immediately. This means Schuckman must have hit his head again after Kuemin first came out to talk to him which I think creates doubt.
I think our argument is that:
1. Kuemin talked to the guy after the slap,
2. therefore, the slap, and the hitting of the head on the ground after the slap, wasn't what caused the death.
3. There had to have been some other head trauma after Dunn and Crochett [sic] came inside. This is borne out by the multiple head injuries.

Dkt. No. 11-1 at 14-15. On January 26, 2012, Attorney Schwantes emailed the prosecutor again explaining the problem he saw in the State's case:

Specifically, as I think I told you in past conversations, the ME says the victim died immediately of head trauma. It was a slap, fall to the ground, death. It was not slap, fall to the ground, fall in and out of coherence, talk to bartender and possibly others while outside the bar, death. Because it was the former sequence, not the latter, and because the bartender insists he spoke to the victim, our argument is that some other hit (after Dunn's slap) had to be what led to the ...

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