DeBruce v. State

• Decision Date: 02 December 2003
• Parties: Derrick Anthony DeBRUCE v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

890 So.2d 1068

Derrick Anthony DeBRUCE v. STATE of Alabama.

CR-99-1619.

Court of Criminal Appeals of Alabama.

December 2, 2003.

Rehearing Denied January 16, 2004.

Certiorari Denied April 30, 2004.

Marlen Bodden, Kevin Casey, and Kenneth Finkelman, Brooklyn, New York, for appellant.

William H. Pryor, Jr., atty. gen., and Thomas F. Parker IV, asst. atty. gen., for appellee.

Alabama Supreme Court 1030617.

WISE, Judge.

The appellant, Derrick Anthony DeBruce, appeals the denial of his petition for postconviction relief filed pursuant to Rule 32, Ala.R.Crim.P. In 1992, DeBruce was convicted of murdering Doug Battle during the course of robbing the occupants of an Auto Zone automobile-parts store in Talladega. He was sentenced to death. His conviction and sentence were affirmed on direct appeal. DeBruce v. State, 651 So.2d 599 (Ala.Crim.App.1993), aff'd, 651 So.2d 624 (Ala.1994). We issued the certificate of judgment on January 9, 1995. On December 6, 1996, DeBruce filed a postconviction petition pursuant to Rule 32, Ala.R.Crim.P. He filed amended petitions in April 1999 and June 1999. The circuit court held evidentiary hearings on DeBruce's petition in July 1999 and October 1999. By order dated April 7, 2000, the circuit court denied DeBruce's Rule 32 petition. This appeal followed.

The evidence at DeBruce's trial showed that on August 6, 1991, six men — Willie Brantley, Charles Lee Burton, Andre Lee Jones, Deon D. Long, Lujuan McCants, and DeBruce — robbed the occupants of the Auto Zone store in Talladega.¹ Five of the six men entered the store armed with guns. McCants testified that DeBruce was armed with a .380 caliber handgun and that he was the last of the five men to leave the store. McCants said that after the robbery when the six were in the car leaving the scene DeBruce said that he had killed the man inside the store to protect McCants. Battle was shot in the back as he was lying face-down on the floor.

On direct appeal we reviewed the record of DeBruce's trial for plain error; i.e., error that was not objected to at trial. See Rule 45A, Ala.R.App.P. However, the plain-error standard of review does not apply to postconviction proceedings attacking a death-penalty conviction. We have repeatedly held that the procedural default grounds in Rule 32 apply with equal force to all cases — even those where the defendant has been sentenced to death. See Hamm v. State, [Ms. CR-99-0654, February 1, 2002] ___ So.2d ___ (Ala.Crim.App. 2002); Hill v. State, 695 So.2d 1223 (Ala.Crim.App.), cert. denied, 520 U.S. 1205, 117 S.Ct. 1572, 137 L.Ed.2d 717 (1997); Thompson v. State, 615 So.2d 129 (Ala.Crim.App.1992), cert. denied, 510 U.S. 976, 114 S.Ct. 467, 126 L.Ed.2d 418 (1993); Neelley v. State, 642 So.2d 494 (Ala.Crim.App.1993), writ quashed, 642 So.2d 510 (Ala.1994), cert. denied, 514 U.S. 1005, 115 S.Ct. 1316, 131 L.Ed.2d 197 (1995); State v. Tarver, 629 So.2d 14 (Ala.Crim.App.1993).

When evaluating a circuit court's ruling on a postconviction petition we apply an abuse-of-discretion standard. "If the circuit court is correct for any reason, even though it may not be the stated reason, we will not reverse its denial of the petition. See Roberts v. State, 516 So.2d 936 (Ala.Cr.App.1987)

." Reed v. State, 748 So.2d 231, 233 (Ala.Crim.App.1999). See Elliott v. State, 601 So.2d 1118 (Ala.Cr.App.1992). However, if the evidence is undisputed, then we review the issue de novo — affording no deference to the circuit court's findings. See Hart v. State, 852 So.2d 839 (Ala.Crim.App.2002).

Moreover, as we stated in Bui v. State, 717 So.2d 6, 13 (Ala.Crim.App.1997):

"In a Rule 32 proceeding, the petitioner has `the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief.' Rule 32.3, Ala.R.Crim.P. See Fortenberry v. State, 659 So.2d 194 (Ala.Cr.App.1994), cert. denied, 516 U.S. 846, 116 S.Ct. 137, 133 L.Ed.2d 84 (1995); Wilson v. State, 644 So.2d 1326 (Ala.Cr.App.1994); Elliott v. State, 601 So.2d 1118 (Ala.Cr.App.1992)."

I.

DeBruce initially argues that he was denied a fair trial because, he argues, jurors failed to truthfully answer questions during voir dire examination. He specifically argues that three jurors failed to disclose vital information. DeBruce also asserts that the circuit court erred in finding that this issue was procedurally barred in this collateral proceeding.

A.

DeBruce argues that juror P.L. failed to disclose that her father was in law enforcement. Specifically, DeBruce contends that P.L., although asked if she had any relatives involved in law enforcement, failed to disclose that her father was a former police officer, a former chief of police, and, at the time of DeBruce's trial, an employee of the Alabama Department of Corrections in Montgomery.

The circuit court held that this claim was procedurally barred because DeBruce failed to show that the evidence in support of the allegation was newly discovered. The circuit court also addressed this issue on the merits and stated in its order denying postconviction relief:

"In an abundance of caution, and strictly as a secondary and alternative ruling, the Court will address the merits of each claim. In Tomlin v. State, 695 So.2d 157, 170 (Ala.Crim.App.1996), the Court of Criminal Appeals applied five factors in reviewing claims of juror misconduct: (1) temporal remoteness of the matter inquired about; (2) the ambiguity of the question propounded; (3) the juror's inadvertence or willfulness in failing to answer; (4) the failure of the juror to recollect; and (5) the materiality of the matter inquired about. The question of probable prejudice is primarily within the trial court's sound discretion and will be reversed only upon a showing of an abuse of that discretion. Thomas v. State, 622 So.2d 415, 418 (Ala.Crim.App.1992). Where a trial court investigates the circumstances under which the claim arose and determines that the rights of the petitioner were not prejudiced, the trial court will generally not be held to have abused its discretion. Burell v. State, 680 So.2d 975 (Ala.Crim.App.1996). It is not simply any failure on the part of a juror to properly respond to any question that entitles a petitioner to a new trial, but rather whether that failure to answer resulted in probable prejudice to the petitioner. Washington v. State, 539 So.2d 1089, 1095 (Ala.Crim.App.1988).

"1. Juror [P.L.]

"[P.L.] did not answer the question regarding family in law enforcement. At the evidentiary hearing, DeBruce presented [P.L.] as a witness, who testified that her father is [W.W.]. [W.W.] held various positions in the Talladega County Police Department in the mid-1970's, including acting police chief. [W.W.] then became employed by the Alabama Department of Corrections, where he worked until 1995.

"The Court finds that the first Tomlin factor, temporal remoteness, is relevant because actual `law enforcement' activities of [W.W.] occurred in the mid-1970's, approximately 20 years before the trial of this matter. The second inquiry, the ambiguity of the question propounded, is also relevant. The term `law enforcement' usually denotes police officer or prison worker. The fact that [W.W.] worked in Montgomery at the actual Department of Corrections does not easily lead one to consider that he was involved in a `law enforcement' career. Third, [P.L.] did not willfully or intentionally `conceal' information. She stated at the Rule 32 hearing that `if [she] had heard that question, [she] would have jumped up if there was a way of getting out of being a juror for that case.' She said that she `evidently' did not hear the question. She did not want to be on a sequestered jury, and did not want to serve on a murder case. The fourth factor, the failure to recollect, is not at issue in this case. [P.L.] fully recollected the issue in question.

"Finally is the materiality of the question at issue. [Defense counsel] testified that he would have used a peremptory strike to remove her. The statement from a biased defense attorney that he finds the question material is not dispositive. While it may be material, any potential prejudice was rebutted by [P.L.'s] statement that she based her opinion on nothing other than the facts, the evidence, and the law as instructed by the trial court. [P.L.] testified that she did not consider her father's service in law enforcement during deliberations."

The circuit court based its finding that this issue was procedurally barred on this Court's holding in Brown v. State, 807 So.2d 1 (Ala.Crim.App.1999), cert. quashed, 807 So.2d 17 (Ala.2001). However, Brown was modified by the subsequent Alabama Supreme Court decision in Ex parte Pierce, 851 So.2d 606 (Ala.2000). The Pierce Court addressed whether the defendant's claim concerning inappropriate juror contact with a key State witness required that Pierce prove that the claim met the definition of newly discovered evidence before it would be entertained in a postconviction petition. The Pierce Court stated:

"While the information about Sheriff Whittle's contacts with the jury may be `newly discovered,' Pierce does not seek relief under Rule 32.1(e). Pierce does not contend that `[n]ewly discovered material facts exist which require that the conviction or sentence be vacated by the court.' Rule 32.1(e). Instead, Pierce's claim fits under Rule 32.1(a): `The constitution of the United States or of the State of Alabama requires a new trial....' Rule 32.1(a) states a ground for relief distinct from that stated in Rule 32.1(e). If every defendant had to prove that the facts on which he relies for postconviction relief satisfy the elements of `newly discovered material facts' set out by Rule 32.1(e), then constitutional violations could rarely be raised in a Rule 32 petition, and Rule 32.1(a) would be superfluous for all cases except those in which the defendant could prove innocence. There is a place for this Court to review

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