Duke v. State

• Decision Date: 31 May 2002
• Citation: Duke v. State, 889 So. 2d 1 (Ala. Crim. App. 2002)
• Parties: Mark Anthony DUKE v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

889 So.2d 1

Mark Anthony DUKE v.STATE of Alabama.

CR-98-1218.

Court of Criminal Appeals of Alabama.

May 31, 2002.

Opinion on Return to Remand March 21, 2003.

Rehearing Denied May 16, 2003.

Certiorari Quashed April 30, 2004.

John A. Lentine, Birmingham, for appellant.

William H. Pryor, Jr., atty. gen., and George A. Martin, Jr., and J. Clayton Crenshaw, asst. attys. gen., for appellee.

Alabama Supreme Court 1021570.

WISE, Judge.¹

The appellant, Mark Anthony Duke, was convicted of murder made capital in connection with the deaths of Randy Gerald Duke, Dedra Mims Hunt, Chelisa Nicole Hunt, and Chelsea Marie Hunt.The murders were made capital because they were committed "by one act or pursuant to one scheme or course of conduct."See§ 13A-5-40(a)(10),Ala.Code 1975.After a sentencing hearing, the jury recommended, by a vote of 10-2, that Duke be sentenced to death.The trial court accepted the jury's recommendation and sentenced Duke to death by electrocution.

Duke does not challenge the sufficiency of the State's evidence presented in support of his conviction.However, because this is a case involving imposition of the death penalty, we have reviewed the evidence, and we find that it is sufficient to support Duke's conviction for capital murder.The following summary of the crime and Duke's participation in it is taken from the trial court's written findings of fact, which comprises a part of its sentencing order:²

"On March 23, 1997, about 9:00 P.M., an operator at [emergency number] 911 was called by the Defendant, Mark Anthony Duke, then a 16-year-old male (hereinafter referred to as `Defendant').The Defendant told the 911 operator that his father had been killed and said that `they' had killed him.

"The Pelham police arrived at Mr. Duke's house and discovered the bodies of four deceased persons: Defendant's father, Randy Duke, age 39 years (hereinafter referred to as `Mr. Duke'); Dedra Hunt, age 29 years; Chelisa Hunt, age 6 years; and Chelsea Hunt, age 7 years. ...Mark Hall of the Pelham Police Department found .32 caliber and .45 caliber spent shells.

"The Defendant was asked questions by the police to ascertain possible suspects.The Defendant told the police when he arrived at Mr. Duke's house, he went no further than the foyer where he saw his father, Mr. Duke's body.The Defendant was also asked if he wished to be placed in protective custody, which he responded in the affirmative.

"Sometime later, during the course of investigation by the City of Pelham Police Department, the police discovered Defendant had spoken to one Sarah Woodruff and had told her that he had killed his family.

"The investigation led to two other co-defendants, Mike Ellison(hereinafter referred to as `Ellison') and David Collums(hereinafter referred to as `Collums') and to a fourth and final Defendant, Brandon Samra(hereinafter referred to as `Samra').Statements from Sarah Woodruff and the other Defendant(s) led to the recovery of the weapons and to the Defendant in this case being a suspect with his eventual arrest.

"Evidence further revealed:

"On that Saturday night of March, 1997, the Defendant, who had been with the co-defendants, went to his father's house and there he asked his father, Mr. Duke, if he could use his truck.Mr. Duke denied Defendant use of the truck.The Defendant, with the co-defendants, then went over to Michael Ellison's house and while there, the Defendant said he was tired of his father bossing him around and he was going to kill his father.He gained access to a .45 caliber pistol and Ellison gained access to a .32 caliber pistol.The Defendant wiped the .45 caliber pistol down and took each bullet out and wiped them down and replaced them in the magazine.Michael Ellison got the .32 caliber pistol and wiped it down.The Defendant and the co-defendants then went back to Mr. Duke's house in a vehicle Michael Ellison was driving.Ellison handed the .32 caliber pistol to Samra.Samra and the Defendant got out of the vehicle and went into Mr. Duke's house.Ellison and Collums stayed out in the vehicle.Sometime prior to going into the house, either Ellison or Collums inquired about the two children and Ms. Hunt.In reply, the Defendant said they could not leave any witnesses.

"Inside the house beyond the foyer area, was Mr. Duke, Dedra Hunt(hereinafter referred to as `Ms. Hunt'), and Ms. Hunt's two small children, Chelisa and Chelsea.The house had a main level, an upstairs, and a basement.They were all on the main level when the Defendant and Samra walked in.The Defendant and Samra had agreed on who was to kill Mr. Duke and Ms. Hunt.

"With the .45 caliber pistol, the Defendant shot Mr. Duke once.The Defendant then attempted to shoot Mr. Duke a second time which missed, possibly because Mr. Duke threw an artificial cat at the Defendant while he was aiming for Mr. Duke.The Defendant fired a third shot at Mr. Duke and prior to this third shot, the Defendant stated that he(Defendant) would see him (Mr. Duke) in hell.

"While the Defendant was shooting Mr. Duke, Samra fired the.32 caliber pistol at Ms. Hunt and the shot hit Ms. Hunt and knocked some teeth out.Ms. Hunt and the two children ran upstairs and while she was running, Samra fired a second shot at her which connected.Ms. Hunt went into the upstairs bathroom with her daughter, Chelisa and locked the bathroom door.

"The Defendant went upstairs after Ms. Hunt and the two children.The bathroom door was locked and Samra attempted to kick the bathroom door in, but to no avail.The Defendant then knocked a hole in the door and reached inside and unlocked the door.The Defendant then shot Ms. Hunt.The Defendant also had a knife at that time and went to the shower where Chelisa was.The Defendant cut Chelisa's throat, telling her that it would only hurt a minute.

"Thereafter, the Defendant went into the bedroom where Chelsea was under the bed.The Defendant pulled Chelsea out from underneath the bed.Chelsea apparently attempted to fend off the Defendant as she sustained about 15 knife wounds on her left hand and three knife wounds on her right hand.Due to Chelsea's struggle with the Defendant, the Defendant told Samra to help him.Then both the Defendant and Samra killed Chelsea by cutting her throat.

"Before the Defendant and Samra left Mr. Duke's house, the Defendant went to where his father was and took Mr. Duke's wallet.They also took the knives used in the killings and threw those in a storm drain nearby.In addition, Samra and the Defendant washed their hands and hid the guns.Thereafter, the four Defendants went to a movie and kept the movie stubs to have an alibi.

"The following day, they went back to Mr. Duke's home and made it look like a burglary and a killing as a result thereof by rummaging through the house.

"Ms. Phyllis Rolan, a D.N.A. expert, testified at the trial.Blood had been found in Mr. Duke's kitchen and based on Ms. Rolan's testimony, the Court concluded the blood in the kitchen was Mr. Duke's that Defendant got on him.The Court concluded the Defendant went into the kitchen to obtain knives to assist in the killings of Ms. Hunt and the two children.Mr. Duke's blood was also found in the hole of the upstairs bathroom door, which indicated it came from the Defendant as he reached in to unlock the bathroom door.Blood of Mr. Duke was also found on a bandanna that Defendant owned which was found beside Chelsea.Mr. Duke's blood was also on the Defendant's right tennis shoe and Ms. Hunt's blood on the Defendant's left tennis shoe.Mr. Duke's blood was also found on Defendant's cap.

"Samra testified as to the Defendant's involvement in the deaths of the above four individuals.Sarah Woodruff also testified to Defendant's admission to her of the killings.

"Dr. Joseph Embry, a physician employed by the Alabama Department of Forensic[Sciences], who has previously performed over 4,000 autopsies in his career, ... conducted separate autopsies of the four deceased persons in this case.His opinion was consistent with the above testimony that gunshot wounds and stab wounds killed the four persons.Dr. Embry concluded that Chelisa's throat was cut and there was bleeding in Chelisa's airways and that Chelisa could have only lived for a matter of minutes after her throat was cut.Dr. Embry also concluded that the cuts of Chelsea's neck caused Chelsea's death.He pointed out that Chelsea had a number of defensive cuts as well.Dr. Embry also supplied bullets he found during his autopsies to Ed Moran of the Department of Forensic[Sciences].

"With the assistance of Ellison, the .32 caliber pistol and the .45 caliber pistol were recovered.

"Mr. Ed Moran, a ballistics expert with the Alabama Department of Forensic[Sciences], who received spent shells and bullets recovered from the bodies of Mr. Duke and Ms. Hunt, compared those spent shells and the bullets to the .32 caliber pistol and the .45 caliber pistol recovered.In his opinion they were consistent with each other."

(C. 548-52.)

Both Duke and Samra were indicted on charges of capital murder because the multiple murders were committed pursuant to a common scheme or plan.Samra was tried first; he was convicted of capital murder and was sentenced to death.³

Standard of Review

In every case where the death penalty is imposed, this Court must review the record for any plain error, i.e., for any defect in the proceedings, whether or not the defect was brought to the attention of the trial court.Rule 45A, Ala.R.App.P., provides:

"In all cases in which the death penalty has been imposed, the Court of Criminal Appeals shall notice any plain error or defect in the proceedings under review, whether or not brought to the attention of the trial court, and take appropriate appellate action by reason thereof, whenever such error has or probably has adversely affected the substantial right of the appellant."

As this Court stated in Hall v. State,820 So.2d 113, 121(A...