Carter v. State

• Decision Date: 27 July 1982
• Docket Number: 8 Div. 679
• Parties: Dudley CARTER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 1336

424 So.2d 1336

Dudley CARTER v. STATE.

8 Div. 679.

Court of Criminal Appeals of Alabama.

July 27, 1982.

Rehearing Denied Oct. 12, 1982.

Certiorari Denied Jan. 28, 1983

Alabama Supreme Court 82-68.

John Mark McDaniel of McDaniel & McDaniel, Huntsville, for appellant.

Charles A. Graddick, Atty. Gen., and Elizabeth Ann Evans, Asst. Atty. Gen., for the State.

JOSEPH J. MULLINS, Retired Circuit Judge.

The appellant, Dudley Carter, was indicted, and convicted of arson in the first degree in the Circuit Court, Madison County. He was duly sentenced to imprisonment for 20 years. His conviction was duly appealed to this Court, and affirmed on October 27, 1981, 406 So.2d 1076.

The appellant was represented by counsel of his choice at all proceedings in the trial court, and in this Court.

On January 22, 1982 the appellant filed in the Circuit Court of Madison County a paper styled as a petition for writ of error coram nobis, and or habeas corpus. On February 8, 1982 the Assistant District Attorney filed a motion to dismiss the proceedings filed on January 22, 1982. On March 16, 1982 John Mark McDaniel filed an appearance as attorney of record for the petitioner. On March 19, 1982 an amended petition for a writ of error coram nobis, and writ of habeas corpus were filed by appellant. On March 24, 1982 answers and motions to dismiss were filed by District Attorney. March 28, 1982 hearing was held, and both petitions were denied, and appealed to this Court.

Richard A. Kempaner of Huntsville, Alabama, represented the appellant at all proceedings in the trial court, and on appeal to this Court in his arson case.

John Mark McDaniel represented the petitioner in the trial court, and represents him on this appeal. This appeal was submitted to this Court on briefs.

The appellant in his brief contends that the trial court erred to his prejudice because: 1. He was not allowed to testify in his own behalf at his original trial before the jury; 2. Due to the fact that the prosecuting attorney in appellant's original trial represented the victim in the original trial of the appellant before becoming a prosecutor, in getting custody of appellant's common law wife's, Pamela McCarley's, child; 3. That the evidence at the original trial was not sufficient to sustain the conviction of appellant for arson in the first degree; 4. That the appellant was denied due process because Pamela McCarley, a key defense alibi witness, was not called to testify in appellant's defense at his original trial.

Pamela McCarley, appellant's first witness, testified, in substance: That she was the common law wife of the appellant; that she started living with him in October, 1979; that she was living with appellant September 10, 1980; that she recalls September 10, 1980; that it was supposed to be around 10:00 o'clock that night when her mother's home burned; that she was subpoenaed, and present at, but was not called to testify in the case when appellant was convicted of arson; that she and the appellant were together from two o'clock on the afternoon of September 10, and all night until September 11, when they came and arrested appellant at his house; that appellant picked her up at the Huntsville Country Club at two p.m., and they went to the American Legion downtown, then to the Twilite Lounge for a beer, then to pick up a girlfriend, and took her to Redstone Arsenal, then back to the Twilite Club until eleven that night, then to Fred Smith's Cafe for a beer, and then home, where they arrived at about eleven-thirty; that during this time she drank several beers; that they did not go by the home of Tula Mae Marbrey, her mother, and the victim of the arson; that all the time the appellant was constantly in her sight, except when he went to the rest room; that her mother's home was burned on that night; that she has not talked to her mother about the case; that she was sworn in as a witness at appellant's trial, but was not called to testify, and that she was going to testify to the same things that she has just testified to; that she had a thirteen year old girl child, whom the Domestic Relations Court had taken away from her and given temporary custody to her mother, Mrs. Marbrey; that she and her mother had not been friends since the custody of the child was taken by her mother; that Larry Morgan was her mother's lawyer in the domestic relations suit; that she and the appellant were riding in a Malibu Chevrolet, 1977, Green, four door; that she and her mother had heated arguments about her living with the appellant and not married to him. The appellant testified, in substance, at the coram nobis hearing, that he did not testify in his own defense in his case; that he did ask his attorney, Richard A. Kempaner, about whether or not he should testify; that he was told by his attorney that it would be best that appellant didn't testify, because the District Attorney would make the appellant real mad, and appellant has got a short temper, and that the District Attorney would bring appellant's record up; that appellant had not been convicted for a felony; that the appellant agreed with the attorney that appellant had a short temper, but he did not agree that he should not testify; that he wanted to testify; that he only discussed it one time at Twilite Lounge with his lawyer, and two alibi witnesses, Kenneth and Karen Baker, for two or three minutes, and that he never discussed it again with his lawyer because appellant thought that he might be with a good lawyer, and that he knew best; that appellant's lawyer told appellant not to testify, and appellant said, "Okay, I won't testify."

State's evidence tended to prove that Larry Morgan was chief prosecutor for the District Attorney's office, and that before the time he prosecuted the appellant, he had represented Tula Mae Marbrey, the victim in the arson case, in which appellant was convicted, to obtain temporary custody of her granddaughter. On cross-examination Morgan further testified that when he came into the prosecutor's office on January 20, 1981, all arson cases were assigned to him; that the appellant was not a party to the custody proceedings, but was only a potential witness. That the custody case involved around appellant's, and Pamela McCarley's, conduct in the presence of the child. Morgan further testified, on cross-examination, that he had talked with Kempaner, appellant's attorney, who filed several motions in the case pertaining to eyewitness testimony. In essence, based upon his conversation with Kempaner prior to the trial, based upon the type of case that he presented at the trial of the case, that he felt that the case was tried as well as it could be tried; that he doesn't believe that any attorney at this bar could have tried the case better than Kempaner tried it.

State's evidence further tended to prove that David L. Thomas, attorney engaged in the practice of criminal law in Madison County since June of 1961, has known Richard Kempaner since 1958 or '59, and that he has been actively engaged in the practice of criminal law during the time; that he is familiar with the standards of performance of attorneys at the Madison County Bar engaged in criminal practice; that based on those standards, and based on his knowledge of Kempaner's practice, he has an opinion as to whether Kempaner meets contemporary standards of the bar regulating practice of criminal law; that he is of the opinion that Kempaner would exceed those standards; that Kempaner does a superior job of trying a criminal case.

Richard Kempaner testified, in substance: That he is a lawyer, and has been practicing actively in the criminal law area some thirty years; that he represented the appellant in his trial for arson here before this Court. Kempaner's testimony consumes about ten pages of the transcript of the evidence, and states the various reasons why he felt that the appellant would be better off not to testify in his own behalf, and why his girlfriend, Pamela McCarley, should not be used as an alibi witness. Kempaner further testified, in substances, that it was a joint decision of appellant and Kempaner that the appellant not take the stand and testify in his own behalf; that in arriving at his decision Kempaner told the appellant that it was up to the appellant, and that Kempaner advised the appellant not to take the stand and testify in his own behalf because it was too risky; that appellant's defense was alibi; that he had two good witnesses that were not related to, or friendly to, any of the parties to the case, that were good witnesses, good and solid, had no motive to testify one way or the other, Kenneth and Karen Baker, who owned the Twilite Club, who testified and placed the appellant at the Twilite at about, or near, the time of the fire bombing; that there was no way for the state to impeach them. The two witnesses, appellant, and his girlfriend, Pamela McCarley, had said the appellant had a short temper, and was prone to fly off the handle. There was some testimony as to whether appellant did or did not have a mustache. Appellant had told his attorney he had never worn a mustache, but the state had a mug shot of appella...