United States District Court, E.D. Wisconsin
LARRY H. DUNN, JR., Petitioner,
WARDEN JUDY P. SMITH, Respondent.
DECISION AND ORDER
WILLIAM C. GRIESBACH, DISTRICT JUDGE
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.
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.
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.
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.
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.
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
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]
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 ...