| About an hour before midnight on September 3, 2008, police were called to 1225 West Indiana Avenue in Elkhart, Indiana. They found 60-year-old Angel Torres lying face down on a concrete parking lot with a baseball bat underneath him. Torres was breathing, but unconscious.
When the first officer arrived, 46-year-old Dewayne Dunn rushed up, saying, “I didn’t do anything.” Dunn said Torres had fallen down the stairs from a second-floor porch at the apartment building.
Torres was taken to the hospital where physicians concluded he had suffered skull fractures and was bleeding badly in his brain. His blood-alcohol content was measured at more than three times the legal limit for driving a vehicle. Torres was hooked up to a breathing machine. Two days later, on September 5, 2000, when life support was disconnected, Torres died without regaining consciousness.
Police took numerous photographs of the scene as well as statements from Letha Sims, who lived with Dunn in a second-floor apartment adjacent to the apartment where Torres lived alone. Sims said that she was drinking beer with Torres in his apartment when Dunn returned from walking his dog. She said Dunn came in, and that he and Torres had a friendly conversation.
Both men regularly drank beer and smoked cigarettes together, Sims said. And, as they often did when they were drinking, the two men quarreled. Dunn stormed out, but returned not long after, kicking the door open, Sims said. Torres grabbed a baseball bat, and both men went out to the balcony. Sims told police she heard Dunn yelling at Torres to stop hitting him with the bat and then heard three loud thuds. When she came outside, Dunn was standing on the balcony and Torres was on the ground, she said.
Dr. Blair Chrenka performed an autopsy and concluded Torres died of blunt force trauma. He said the manner of death was “uncertain.”
Subsequently, the Elkhart County Prosecutor’s Office sought a second opinion from Dr. Scott Wagner, a pathologist. Wagner concluded that Torres had been beaten after he fell from the balcony.
On April 20, 2010, Dunn was charged with first-degree murder.
In January 2011, Dunn went to trial in Elkhart County Circuit Court. Sims testified that she and Torres, who was known by the nickname “Ching Ching,” were drinking beer. She said that after Dunn came in and quarreled with Torres, he left and returned. The door suddenly was smashed open.
“I don't know if [Dunn] kicked it or hit it and it flew open, and that's when Angel got up and got the...bat from by his room…and went out there,” Sims testified. “And I hear something hit…like it was hitting somebody, and I hear Dewayne Dunn saying, ‘Don’t hit me with the bat no more. Stop hitting me with the bat, Ching Ching.’”
She continued, “And the next thing, you know, I hear some boom, boom, boom, boom, you know. So I jump up, and I run out there, and I see Ching Ching at the bottom of the stairs, and I asked [Dunn] what happened.”
Sims said Dunn told her that Torres had fallen down the stairs. She said Dunn then went down the stairs and pulled on Torres’s arm to try to get him up. “He went down there and was trying to get him up,” she said. “Telling him to ‘Get up. Get up, Ching Ching.’”
The prosecution attempted to impeach Sims with a statement she had made months after the crime to a detective that she saw Dunn kick Torres so hard that the kick made Torres’s body “move like it was going over the railroad tracks.”
Sims conceded she said that, but claimed it was a false statement made only because the detective questioning her was relentless and refused to stop interrogating her until she said Dunn had beat and kicked Torres while he was on the ground.
“I did say that,” Sims said. “But I never seen him kick [Torres]…I never seen nothing else except him trying to help [Torres], you, now, telling him to get up.” The detective, Sims said, “kept pressuring me and pressuring me until the point he was scaring me, you know, till I felt like, you know, I was like, well, okay…then—he kicked him….but then I was like but he did not kick him.”
Sims said she and Dunn had grown apart, that she had had sex with Torres on one occasion, and that she did not know whether Dunn suspected her of cheating on him.
Sims’s teenage son, Jamar, testified that he heard yelling and saw Dunn and Torres on the balcony, struggling over the bat. “I heard Dewayne telling Ching Ching, ‘Don’t hit me with the bat again.’” Jamar said that Torres managed to yank the bat free, but then fell backwards down the stairs. Halfway down, Torres hit the railing and flipped over onto the ground, Jamar said.
“He flipped,” Jamar testified. “He fell, like, down like a stair or two, and he got like—I don't know how he got on the banister, but when he flipped over the banister, he fell, and like—I was like really shocked…He landed face first on the concrete.”
Jamar said he came down the stairs. “And by the time I got to the street, I seen the police. So I flagged down the police,” he said.
Police testified that DNA testing was performed on Dunn’s clothing as well as the bat. Torres’s DNA was found on the handle and in the middle of the bat, but no blood and no DNA was recovered from the barrel of the bat. Blood on Dunn’s denim shorts was determined to be Dunn’s only.
Dr. Blair Chrenka testified that he performed the autopsy. He said Torres had multiple skull fractures, broken ribs, a broken collar bone, and numerous bruises and scrapes. He said that while Torres died of blunt force trauma, he could not ascertain a manner of death.
Dean Marks, an Indiana State police officer, said that he examined photographs of blood spatter and blood drops on the balcony as well as on the ground and on a car near where Torres was found. Marks concluded that based on his analysis, Torres had been beaten after he fell, causing blood to spatter.
Marks testified that by taking into account all of the bloodstains on the car, on the pavement and the stairwell…and “then taking in account the stains that were observed on the outside beam of the stairwell and the railing post, and then the four stains on the
bottom two steps of the wooden steps, I believe those are all related to each other; and that tells me that an event of some type took place between the car and the stairwell.”
Prosecutor Vicki Becker asked, “Is that the type of pattern that would be deposited
if someone just fell down the stairs?’
“It's not consistent with that,” Marks testified. “This is blood being impacted with a good amount of energy.”
“Is it consistent with the fact that an event occurred at the bottom of the stairs?” Becker asked.
“Yes, it is,” Marks testified.
Dr. Wagner, the forensic pathologist whose conclusion was that Torres was beaten after he fell, testified that the manner of death was homicide. “I believe the injuries—the multiple injuries on multiple surfaces of the body is not totally consistent with only falling down stairs,” Dr. Wagner testified.
The defense presented no medical testimony. Instead, Dunn’s attorney focused on the absence of any blood on the barrel of the bat to argue that Torres died of a fall and that Dunn did not beat him after the fall.
The prosecution, during closing arguments, told the jury that the medical testimony showed that Torres suffered more injuries than could have been sustained in a fall from a second-floor balcony, and that the actual weapon was not the bat, but something else that had been discarded before police arrived.
On February 22, 2011, the jury convicted Dunn of first-degree murder. At sentencing, Dunn declared, “I didn't kill anyone. I'm sorry for what happened. I'm sorry for all this,
whatever the family has been through. I know they had some hurt. I mean, I've been through things. But if I had to take it back, I wouldn't -- I wouldn't even had went over to his house that day. I didn't want to see no one hurt. I didn't want that family to go through that. But I did not beat that man. I did not murder anyone.”
Judge Terry Shewmaker then sentenced Dunn to 58 years in prison.
Ten months later, in December 2011, the Indiana Court of Appeals upheld the conviction. Dunn then sought post-conviction relief, contending that his trial defense attorney provided an inadequate legal defense by failing to consult with medical experts to analyze the prosecution’s medical reports.
Dr. Thomas Sozio, a forensic pathologist, testified at a hearing that after reviewing the medical records, photographs, and trial testimony, “I highly favor a fall.” He said that Torres suffered a skull fracture that was typical for a fall, not a beating. Sozio noted that Torres was highly intoxicated, was wearing flipflops, and standing at the top of a rickety set of stairs. In addition, Sozio said Torres was a chronic alcoholic and as such was prone to breaking bones easily and to poor blood clotting, which contributed to heavy bleeding on his brain.
The petition for a new trial was denied in April 2017. Judge Shewmaker held that Dunn failed to develop evidence that established that consulting with another expert would have changed the outcome of the trial. The judge noted that Sozio “simply provided another expert opinion as to the cause of death of the victim which lacks some credibility when considered in connection with the totality of the evidence presented
at trial.” The denial of the petition was upheld on appeal.
In 2018, Dunn, acting without a lawyer, filed a federal petition for a writ of habeas corpus. Michael Ausbrook, director of the Indiana University Maurer School of Law federal habeas program, was appointed to represent Dunn.
In December 2020, U.S. District Judge Philip Simon granted the petition and vacated Dunn’s conviction.
Judge Simon noted, “The State’s theory of prosecution was that Torres was pushed down the steps by Dunn and, after he landed, Dunn found some object to bludgeon him with. The State did not contend that the bat was the offending object. Instead, they theorized it was likely some other instrument; but no other instrument was ever found.
“The only evidence on this critical point came from two experts: a forensic pathologist and a blood spatter expert from the Indiana State Police,” Judge Simon said. “As for the blood spatter evidence, there was substantial evidence of several people stomping around the crime scene. First, Dunn and [Jamar] went up and down the stairs and walked next to Torres’s body. Indeed, Dunn was seen standing next to Torres trying to forcibly pull him up by his arm. Both Dunn and [Jamar] were standing near Torres when the police arrived.”
Police officers “also were all seen walking around the crime scene near the body,” Judge Simon said. “There were photos admitted at trial which showed several people in boots standing right next to Torres’s body. Indeed, the photo shows what appears to be medics walking through the blood. Additionally, while the crime scene was being processed, it started to rain heavily.”
Judge Simon said the trial judge applied the wrong legal standard to deny Dunn’s post-trial petition for a new trial. “The issue was not whether consulting with or calling a forensic pathologist ‘would have changed the outcome of the trial,’” Judge Simon said.
“The simple fact of the matter is that this case cried out for a forensic pathologist on the
defense side,” Judge Simon said. “It’s not an exaggeration to say that how Torres died is the whole case. Without expert testimony to support his claim, counsel’s theory that Torres died when he fell didn’t have much of a chance.”
Judge Simon noted that once no blood was shown to be on the bat, the prosecution “lobbed an alternative theory involving a phantom instrument with little evidence to support it.”
“I am of the firm belief that Dunn was denied effective assistance of counsel, and but for counsel’s errors, there is a reasonable probability that the results of the trial would have been different.”
The prosecution appealed, and, in August 2022, the U.S. Court of Appeals for the Seventh Circuit upheld Judge Simon’s ruling.
Appeals Judge Ilana Rovner authored the ruling and noted that blood from Torres was found on Dunn’s shoe, “as would be expected given the testimony that he ran down to Torres after the fall and pulled on him, imploring him to get up. But as the district court noted, the evidence did not reveal any blood on Dunn’s shorts that could be identified as Torres’s blood. If, as the state argues, the weapon was so saturated by blood that it caused the blood spatter when swung, the absence of evidence of blood spatter tied to Torres on Dunn’s clothes diminishes the argument that he wielded such a weapon.”
“The testimony by Dr. Sozio was critical in this case to creating reasonable doubt, because it countered the scientific evidence by the state and gave the jury reason to doubt that Torres’s injuries resulted from a fall,” Judge Rovner wrote. “With that evidence, there is a reasonable probability that the jury would have reasonable doubt as to Dunn’s guilt.”
On November 4, the Elkhart County Prosecutor’s Office filed a notice that it would not seek to retry Dunn. On November 7, 2022, the case was dismissed, and Dunn was released.
– Maurice Possley
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