Dunn testifies, defense rests, secures self-defense jurisdiction, closing tomorrow
Today the Dunn trial managed to wrap up all of the evidence to be presented to the jury, including a bit of rebuttal evidence once the defense had rested. All the criminal charges–first degree murder, three counts of attempted murder, and firing into an occupied vehicle–are moving forward, as is the legal defense of self-defense.
Notable today was the testimony of the defendant, Michael Dunn. On direct he recounted the events leading up to, during, and following his shooting of of Jordan Davis, as was necessary if he hoped to get a self-defense jury instruction. He was unshaken by the ~ 3 hours of cross-examination of Assistant State Attorney John guy.
In my opinion, however, he came across as cool, aloof, and lacking in empathy. This would normally be a small matter, except that the sole evidence of self-defense comes from his own testimony, and his credibility is already seriously damaged by his flight from the scene and his failure to contact police be he was arrested by them.
Closing arguments are scheduled for 10AM tomorrow morning, with perhaps some final argument ironing out the jury instructions beforehand. We’ll be live here at Legal Insurrection whatever time court starts up and the video feed is live.
OK, let’s get to the events of the day:
Daubert Hearing: Abussa, “Acute Stress Response” Expert
The morning began with the defense proffer of an “expert” in “acute stress response,” a Mr. Abussa, who would have testified to the physiology underlying Michael Dunn’s failure to call police in the aftermath of his shooting of Jordan Davis.
In order to determine the qualification and relevance of the expert, the court conducted a Daubert hearing before the trial proper began this morning. In fact, the expert appears to be primarily a family and marriage counselor, and unlikely to contribute any insight that the jury would not be able to glean from the evidence for themselves. In particular, Healey noted that Bussa had never before been an expert at trial, had no publications in the area, no peer review, and had never even spoken with Dunn. As a result, Healey decided to deny the defense request to have their proffered expert testify.
I was surprised at this ruling, not because I think it was wrong on the merits but because it will surely be grounds for appeal in an area of Florida law that is relatively immature (Florida only recently transitioned from the older Frye hearings to the newer Daubert hearings). I had expected that Healey would play it safe and let Mr. Abussa testify.
Michael Dunn, Defendant
Immediately following the denial on Abussa, the defense called the defendant, Michael Dunn, to the stand. This was necessary if for no other reason than to secure a self-defense jury instruction, as to this point there was literally no facts in evidence to support a self-defense charge. It also provided an opportunity for the jury to hear Dunn’s story from his own mouth.
The downside, of course, was that it also made Mr. Dunn subject to cross examination, a typically destructive process for almost any defendant.
Before being sworn in Dunn was given a long laundry list of cautions and rights by Judge Healey, but clearly nothing was going to stand between Dunn and the witness stand.
Direct Examination by Defense Counsel Strolla
It naturally fell to defense counsel Cory Strolla to conduct direct examination of his own client.
Much as he had with other defense witnesses, Strolla walked Dunn through the course of the day up to the shooting emphasizing the happy occasion of the wedding, the upbeat mood of Dunn, the relative paucity of alcohol consumed, the role of the puppy in the events that would unfold. Not sure whether it was coincidence, but several times when the puppy arose in his testimony Dunn became clearly emotional, even teary.
Events then moved up to the gas station, which Dunn indicated he’d picked simply because it was on the route back to their hotel. He pulled into the open spot closest to the door, and fatefully next to the red Durango SUV. Rhonda Rouer left the vehicle to enter the minimart for the purpose of purchasing some wine and chips.
At some point after Rouer left the car, Dunn said, he heard and felt extremely loud thumping bass rap music coming from the SUV next to him. Although his windows were up, he testified that his rear view mirror was shaking, and because of a child-hood ear injury the volume of the music was causing pain in his left ear. He says he didn’t simply pull into a different spot because the other open spots were considerably further away and because the loud bass had not begun until after he’d already pulled in to his chosen spot.
(Note that in her testimony Rouer had testified that before she left the car Dunn had commented, “I hate that thug music,” and she had replied, “I know you do.” There was some dispute on cross whether Dunn had made inconsitent statements regarding whether the music was already playing when he pulled into the spot, or started after. To my ear it sounded as if the parties were conflating “music” and “thumping bass.” It seems likely that rap music was playing at some not unreasonable volume when Dunn pulled in, then the sub-woofer cabinet in the rear of the SUV was turned up when Rouer was in the store.)
Dunn said he asked the SUV, “Can you turn that music down, please,” and in fact the music was turned very much down. When he looked to his left to make this request he noticed the tinted front passenger window of the SUV was up. Dunn testified that he then lowered his window and said, thank you. In turning to do this, he noticed that the window in the rear passenger door of the SUV was coming down.
Soon, he says, he started hearing “fuck this,” and “fuck that” communications from the rear seat of the SUV, the position where Jordan Davis was seated. At the same time, the music volume increased again, albeit not as high as when he’d first requested it be turned down. At that point, he said, he wasn’t going to ask for more favors. Nevertheless, the communications from the SUV continued to escalate in intensity, and he now heard “something-something cracker.” Because the speaker had a higher pitched voice, he was able to hear it over the sound of the loud bass.
Then, he testified, he heard the speaker say, “I should kill that motherfucker.”
Dunn says he was flabbergasted, thinking he must not have heard right. Growing concerned, he began to listen more carefully, and heard, “I should fucking kill that motherfucker,” now being screamed. Looking at the rear passenger window he says he saw two faces–these would have been Jordan Davis, sitting immediately behind that door, and Leland Brunson, seated behind the driver’s seat.
Dunn went on to say that he asked them, “Are you talking to me?” as in inquiry. He said, they were talking about killing that motherfucker, I want to know if I was that motherfucker. Also, he added, to make clear I had said thank you.
Asked by Strolla, “Did they escalate, or did you?” Dunn replied, “They did.”
Dunn then sad he saw the person immediate behind the rear door (Davis) lean forward as if retrieving something from the floor of the SUV. When he straightened he banged something hard against the interior of the rear door, and Dunn said he could observe 4″ of shotgun barrel above the lower edge of the window frame.
At that point Dunn testified Davis said, “Yeah, I’m going to fucking kill you, he’s showing me a gun and he’s threatening me.’ But still, he says, he didn’t yet reach for his pistol in the glove box of his car. Not yet reacting, Dunn said he was still processing what was going on.
At that point, he went on, he saw that rear door of the SUV crack open, and heard Davis say, “You’re dead bitch.” He still didn’t go for his gun, saying that he was in fear for his life but was not at the point where he was ready to deploy deadly force. He was, he says, just wondering to himself where all this hostility came from.
Then the door opened further, and Dunn saw a young man get out, his head clearing the window frame, and saying “This shit’s going down now.” At that point, Dunn says, he can’t see the shotgun barrel in the window any more, and doesn’t know where it is. It was then that Dunn decided the deadly threat to his life was imminent.
Saying, “You’re not gonna kill me, you son of a bitch,” Dunn leaned forward and popped open his glove box. He leaned forward again and retrieved his holstered firearm. He stripped it of its holster, cycled the action to load a round into the chamber from the fully-loaded 15-round magazine, grasped the gun in both hands, pointed it at the rear door of the SUV, and fired three times. (although he says he did not at the time know how many times he fired).
Asked by Strolla why he kept the gun without a round in the chamber, Dunn said it was for safety reasons. In case one of his children came upon the pistol, it would not fire until it had been cycled.
Describing his tunnel vision, he said everything faded into the background and he just focused on the target, the door, and pulling the trigger. He didn’t aim, he said, but rather pointed the gun, and pulled the trigger rapidly because he was fighting for his life.
Dunn said the three hits on the front passenger door, the ones that did not penetrate the passenger compartment, occurred by accident in that he hadn’t registered that the SUV had begun moving backwards. (Had it not, presumably, and Dunn is telling the truth, those three rounds would also have hit the rear passenger door)
Dunn also testified that the rear passenger door was open when he fired at it, such that the dowels in the front passenger door would be parallel to those in the rear passenger door. He believes Jordan Davis may have been diving back into the car after seeing Dunn raise his pistol to cycle it, when the rounds penetrated the door and Davis.
(I feel obliged to note that his narrative of the second burst of shots “accidentally” hitting the front passenger door would be more credible if there wasn’t such a distinct pause between the first and second bursts of rounds. The number and tempo of the gunshots can be heard here: “Loud Music” Murder Trial: Sequence of Gun Shots.)
As the SUV backed out of its spot, it turned so that it formed a “T” with his vehicle. At that point, Dunn said, a person armed with a shotgun would have been aiming at the back of his head. In addition, the shotgun would have been aligned with the front door of the store, the door from which his fiance Rhonda Rouer would soon emerge. Now, he said, he was protecting not just himself, but also Rouer.
He opened his car door, moved a few feet from his car, kneeled, and re-engaged the SUV with a third and final burst of rounds. By this time the SUV was actually driving away from him, and his round struck the right rear of the SUV. He thought he’d fired only once, he said, but knew now from the evidence that he’d fired three times.
Dunn described these shots as intended to “keep their heads down” so that they could not fire blindly back at Dunn and Rouer. Given the nature of a shotgun pattern, he knew, it was possible they could both be killed with a single shot fired from the shotgun.
By that time Rouer emerged form the store, and Dunn urged her into the car. Both of them, he said, were in shock, and it was this shock that would drive their admittedly illogical behavior over night and into the morning, until his arrest by Deputies at his home.
Rouer, he explained, was all but frozen in shock, and he wasn’t much better off himself. He had just had his life threatened, and had been forced to shoot at someone. They were afraid the “armed” men in the SUV would return, and perhaps bring friends. They fled the gas station for safety.
Dunn says he tried to explain to Rouer what had happened while she was in the store, but she was hysterical. He tried to explain to her that the men he’d fired at had been armed, that they’d threatened him. He says he doesn’t even remember the rid to the hotel.
Back at the hotel they looked out the windows down at traffic, and it seemed like every vehicle was a red SUV. He was waiting, he said, in fear that the men he’d shot at would come back at them in retaliation.
(It is noteworthy that Rouer had testified she was waiting not for the SUV, but for the police to come and arrest them. Also, one who is afraid of an armed group attack might be inclined to request police assistance to secure their safety from attack.)
Strolla then got into the matters of Dunn and Rouer having a drink, ordering pizza, walking their dog, and so forth. All of this was done in a state of shock, Dunn explained. There was no joy in it. In particular at that point they had no idea that anyone had been killed. Furthermore, by Dunn’s way of thinking he hadn’t done anything wrong. Self-defense was lawful, and he had acted in self-defense, therefore he had acted lawfully.
The next morning, after only two hours’ sleep, he awoke and learned for the first time that Jordan Davis had been killed. He says he was immediately physically ill in the bathroom. Rhonda also saw the news on the television, and was almost mute with panic.
He realized now, he said, that he would have to report the matter to the police. But why not the police nearer his home, 2.5 hours drive away, rather than here in Jacksonville. After all, even though Jordan Davis had died, it was in his mind still lawful self-defense. Lawful self-defense doesn’t become unlawful murder just because you delay reporting it a few hours, he reasoned, so what’s the rush?
They made the drive back to his and Rouer’s home, at which point her cell phone range. It displayed a Jacksonville area code, so they assumed it was Dunn’s son back in Jacksonville. Instead, it was homicide Detective Musser, informing him that he was wanted for for questioning in the events of the previous night
Dunn informed Musser that he had just been about to walk over to his neighbor, a Federal Law Enforcement Officer, and have that neighbor accompany him to the local police station. Dunn says Musser informed him that he had about 10 minutes to get that done, and they hung up. Dunn walked over to his neighbor’s residence, when Rouer’s phone rang again. This time it was local Deputies executing a murder warrant on him, and he was taken into custody. Dunn says he was surprised at being arrested, as he had been led to believe they merely wanted to questioning, and he had no idea a warrant had been issued for his arrest.
Detectives Musser and Oliver came in from Jacksonville and interviewed Dunn, who made only one tentative request for counsel, but continued engaging with the officers as they questioned him. He characterized their questioning as hostile and antagonistic, and explained that this was the cause of some of the misstatements that would later be brought to his attention.
And that was it for Strolla.
Assistant State Attorney on Cross Examination of Dunn
To my considerable surprise, and displeasure, Assistant State Attorney John Guy was selected to carry out the cross-examination of Dunn. ASA Guy has never been an outstanding trial lawyer in my experience, leaning far too much on emotion and volume to be effective. I would have much preferred the dripping contempt of State Attorney Angela Corey (below, standing) or the incisive intellect of Assistant State Attorney Erin Wolfson (below, seated, in off-white).
John Guy’s cross can best be described as small-ball, picking at small factual discrepancies. Many of these were so minor and inconsequential that I can only assume Guy was pursuing a strategy of trying to so rile up Dunn that the defendant would lash out in anger.
Issues he touched upon was whether Dunn had told Rouer at the time that he’d been threatened with a gun, Whether it was Dunn who called his Federal LEO neighbor or his neighbor who called him, whether the SUV’s music had been playing when Dunn pulled into his parking spot or only began playing after he had parked, and whether Jordan Davis was inside or outside of the SUV when Dunn fired his pistol at him. And, of course, why Dunn had never called 911 despite innumerable opportunities to do so.
Dunn, however, did not lose his cool in any appreciable way, insisting throughout that he’d acted in necessary self-defense, so in any important sense the cross-examination was substantively ineffective. There were a couple of small missteps, such as when he volunteered he wouldn’t have referred to the boy’s music as “thug music,” as Rouer had testified, but rather as “rap crap.” That certainly could have done him no good with the jury. In terms of explaining his irrational behavior in fleeing and not calling 911, he put it off to the stress of the events.
That’s not to say that Dunn did not bear a cost for having testified, however, because in my opinion he did, although a somewhat subtle one.
Dunn came across to me as very cool, very aloof, and in important matters almost completely lacking in empathy. Sure, he teared up when he mentioned his puppy Charlie, and maybe even his fiance Rouer. But there in the court room he had appeared to have no empathy whatever for the parents of Jordan Davis, both present in the court room. Whatever the truth of what Jordan Davis might have done or threatened to do to Michael Dunn, his parents and done nothing, and were clearly still in great pain. No matter how necessary it might have been to shoot and kill Jordan Davis in self-defense, that doesn’t make the loss of his parents inconsequential.
In particular this does not appear to be a case in which Jordan Davis had been effectively abandoned by his family to the street environment and and left to become a drug-dealing, jewelry stealing, street-fighting, illegal gun possessing criminal. Indeed, what limited information I have available indicates that Jordan Davis had never before been involved with the law, nor Kevin Thompson nor Leland Brunson. (The driver of the SUV, Tommy Storns, did have some minor criminal record, but was actually in the store when the confrontation was taking place.)
Taking this in combination with the fact that Dunn himself had not seen his soon more than 3 times in 15 years, although they all lived in the same state, and it was an unattractive picture.
Normally, such sentiments should have no great import in a criminal trial. In this case, however, the only evidence of self-defense whatever comes only from the defendant Michael Dunn, and his credibility is already profoundly damaged due to his flight from the scene and his failure to call police. Instead, it was the police that had to find and collect him. With his liberty hanging by such a thread, a communication of heartfelt sorrow for the parents of Jordan Davis might have been of considerable value.
Guy’s cross examination having taken place for 2.5 hours, a lunch break and then additional time thereafter, there seemed little value to have been created for the state.
After a short bit of re-direct and re-cross, the defense rested its case.
All Criminal Charges, Self-Defense, To Move Forward
Upon resting, the defense moved for an acquittal, to which Corey objected, and which Healey denied out of hand.
Healey determined that all there was a sufficient prima facie case on all five criminal charges–1st degree murder for the killing of Davis, three counts of attempted murder for Brunson, Thompson, and Storns, and firing into an occupied vehicle.
He also determined that the defense had met its burden of production on self-defense–a certainty once Dunn had mentioned the words self-defense on the witness stand.
State Offers Rebuttal Testimony
Sadly, my video feed failed me for this part of the trial, so I was not able to watch the proceedings live. Fortunately, the Professor was able to do so, and called me with his observations. (I’m paraphrasing his comments, of course, hastily typed by me as we spoke by phone–any errors should be assumed to be mine. These are NOT quotes.)
The first rebuttal witness called by the State was Rhonda Rouer. She testified on two major issues. First, she denied that Dunn had ever told her about the attack having involved a gun.
Second, she said the phone call the next morning with their Federal law enforcement neighbor was not made by them when they were home, but rather was made by their friend to them while they were still in the car, and played on speaker, enabling her to hear the full conversation. In fact, she testified, the discussion solely involved plans for getting together later in the day or that evening, and no mention whatever was made of the previous night’s shooting, the need to contact police or anything similar.
Strolla’s approach on cross was to essentially suggest that she was sufficiently crazy that her testimony and recollections were all but worthless. He recounted how stressed she had appeared in her first appearance in court, and how much more stressed she had been on that day. He asked her if it was possible that she didn’t remember everything that was said that day, and she agreed, but hesitantly. She also conceded that she had had to seek therapy for her stress and was currently taking prescription medications for the same.
In summary, the Professor felt this testimony was good for the State, and bad for the defense.
The next rebuttal evidence was the video of Dunn being interviewed by Detectives Musser and Oliver. In contrast to Rouer’s rebuttal testimony, the Professor felt that this actually worked in the favor of the defense. The detectives used their professional interrogation skills to try all they could to shake Dunn’s story–but Dunn would not be shaken.
Furthermore, the great portion of the story then was consistent with his story on the witness stand today. If anything, it was more credible in the interview room than in the court room. Dunn was firm that he’d seen a gun barrel, although they told him repeatedly nothing like that had been found, he emphasized the incredible fear and panic the’d felt at having to fight for his life, he insisted even then that Davis had exited the vehicle, the verbal threats and swearing, the shouted cries of “we’re going to kill you, motherfucker,” and so forth.
The Professor thought this rebuttal evidence was actually favorable to the defense, and not helpful to the State.
Closing Arguments Set for 10AM Tomorrow
The court is set top start closing arguments start at 10AM US EST tomorrow, although they will likely be meeting before that time in order to straighten out any remaining issues with jury instructions. The instructions are going to be VERY long, including not only the nominal charges–murder 1, three counts of attempted murder, and firing into an occupied vehicle–but also Florida’s very extensive self-defense instructions (including, I fear, the statute’s stand-your-ground language, despite it having any more relevance here than it did in Zimmerman).
In addition, however, each charge will also include every lesser included charge, such as voluntary manslaughter, aggravated battery, aggravated assault, and so forth.
We’ll go live as soon as court goes into session, standing by as early as 8AM, and will tweet out when things have started going, whether it’s the pre-closing discussions or the formal closing arguments.
Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog, Amazon.com (paperback and Kindle), Barnes & Noble (paperback and Nook), and elsewhere.