A man convicted as a teenager of an Elkhart murder has been granted habeas relief after a federal judge determined both his trial and post-conviction counsel were ineffective.
Dentrell Brown on Thursday was ordered released from custody unless the state elects to retry him within 120 days.
Brown was convicted in 2009 of the murder of Gerald Wenger, who died of a gunshot wound to the head on March 8, 2008. Though he was a juvenile at the time, Brown was tried for the murder in adult court in Elkhart county. His direct appeal and post-conviction relief petition were unsuccessful in state court.
Once again raising the issue of ineffective assistance of counsel in federal court, key to Brown’s habeas proceedings was a man named Mario Morris, who testified about separate confessions from Brown and his codefendant, Joshua Love.
According to Morris, both men spoke of trying to sell Wenger a “gang pack,” which is a cocaine lookalike. When Wenger discovered the trick, Morris said Love confessed to shooting Wenger with a 9mm handgun. But Brown, according to Morris, confessed only to striking Wenger in the head with a 45mm gun before leaving the scene.
According to Morris, both men said they then entered Wenger’s truck and drove it to a nearby alley, where it was found. But, Morris said, neither Love nor Brown mentioned the other in their story.
Brown’s trial counsel unsuccessfully moved for a mistrial at the end of Morris’ testimony, but he did not request a limiting instruction regarding that testimony. Brown was then convicted and sentenced to 55 years executed, plus five years of probation.
Initially, Brown’s attempt at federal habeas relief was unsuccessful. But in 2017, the 7th Circuit Court of Appeals reversed the dismissal of his habeas petition, finding the Martinez-Trevnio doctrine applied in Indiana, and remanded to the U.S. District Court for the Southern District of Indiana for a hearing on ineffective assistance of post-conviction counsel. The appellate court later denied rehearing.
On remand, Indiana Southern District Chief Judge Jane Magnus-Stinson noted the parties had agreed not to holding an evidentiary hearing “after extensive briefing.” The main issue, she said, was whether Brown proved the first part of the Martinez test: that his post-conviction counsel performed deficiently.
According to Brown, his post-conviction counsel was deficient when she did not include in his PCR petition trial counsel’s failure to request a limiting instruction that would have prevented the jury from using Love’s statement, as conveyed through Morris, against him. The government, however, said that because Love did not directly implicate Brown in his confession to Morris, the statement was admissible.
But “Mr. Morris testified about Mr. Love’s statement to him then immediately testified about Mr. Brown’s statement to him,” Magnus-Stinson wrote, comparing the instant case to that of Payne v. State, 854 N.E.2d 7, 22 (Ind. Ct. App. 2006). “At one point, the prosecutor asked Mr. Morris a follow up question: ‘And did they actually try to sell him those gang packs?’ The use of the plural ‘they,’ instead of the singular ‘he,’ makes clear that Mr. Love’s statement implicated Mr. Brown, and vice versa.
“In addition,” the chief judge continued, “Mr. Love’s statement that he got in the back seat of the victim’s truck implicates Mr. Brown and lends support to Mr. Morris’s testimony that Mr. Brown said he got in the front seat.
“For these reasons, the Court finds that hearsay testimony of Mr. Love’s out-of-court statement was inadmissible against Mr. Brown and Mr. Brown would have been entitled to a limiting instruction had his trial counsel requested one.”
The government alternatively argued that Brown’s trial counsel had intentionally not requested a limiting instruction in an attempt to “deflect responsibility away from Mr. Brown,” but Magnus-Stinson said that strategy “would have been unreasonable.” What’s more, she said, trial counsel testified that he did not even consider asking for a limiting instruction.
“The Seventh Circuit has already determined that Mr. Brown’s underlying claim of trial counsel ineffectiveness has some merit,” Magnus-Stinson wrote. “This Court has now determined that post-conviction counsel performed deficiently. Therefore, Mr. Brown has overcome procedural default of his claim that trial counsel provided ineffective assistance of counsel when trial counsel failed to request a limiting instruction as to Mr. Morris’s testimony regarding Mr. Love’s out-of-court statement.”
Turning then to the merits of Brown’s claim against his trial counsel, the district court again noted that trial counsel did not make a strategic decision not to request a limiting instruction, and such a strategy “would have been objectively unreasonable.” Further, under the prejudice analysis of Strickland, the court said the other evidence against Brown was “circumstantial and not conclusive.”
“It includes witnesses who testified that he or she 1) saw Mr. Brown a ‘few weeks before the shooting with what she thought was a gun,’ 2) saw Mr. Love and Mr. Brown together several hours before the shooting, but the witness had trouble identifying Mr. Brown, 3) saw two boys by the victim’s truck the morning after the shooting but did not identify Mr. Brown, 4) witnessed Mr. Brown ‘trying to sell a nine-millimeter handgun in the weeks following the shooting,’ and 5) heard Mr. Brown laugh when asked if he had murdered someone with a gun,” the court wrote.
“None of this evidence puts Mr. Brown at the murder scene with Mr. Love,” the chief judge continued, adding in a footnote that Wenger was killed by the 9mm gun, which Love testified to using. “And Mr. Brown’s statement to Mr. Morris was that he left the scene after hitting the victim in the head with a .45-millimeter gun which caused the gun to go off and graze the victim.
“While this evidence is legally sufficient to convict Mr. Brown of murder,” she wrote, “there is a reasonable probability that he would have been acquitted if his counsel had secured a limiting instruction preventing the jury from using Mr. Love’s out-of-court statement against him. Mr. Brown was prejudiced by his trial counsel’s deficient performance at trial.”
Online court records show that Brown is incarcerated at the Wabash Valley Level 3 Facility, with a projected release date of March 27, 2036, before habeas relief. Love is incarcerated at the Westville Control Unit with a May 17, 2054, release date.
Brown’s case is Dentrell Brown v. Richard Brown, 1:13-cv-01981.