Dunaway v. State

• Citation: 198 So.3d 530
• Decision Date: 18 December 2009
• Docket Number: CR–06–0996.
• Parties: Larry DUNAWAY v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

198 So.3d 530

Larry DUNAWAY

v.STATE of Alabama.

CR–06–0996.

Court of Criminal Appeals of Alabama.

Dec. 18, 2009.

Rehearing Denied Feb. 19, 2010.

Charlotte Morrison and Randall S. Susskind, Montgomery, for appellant.

Troy King, atty. gen., and Jon B. Hayden, asst. atty. gen., for appellee.

KELLUM, Judge.¹

The appellant, Larry Dunaway, currently an inmate on Alabama's death row in Holman Correctional Facility, appeals the circuit court's denial of his petition for postconviction relief filed pursuant to Rule 32, Ala. R.Crim. P.

In October 1997, Dunaway was convicted of capital murder for murdering Tressa Patterson during the course of an arson and for murdering James Anthony Patterson, a 22–month–old child, during the course of an arson. See § 13A–5–40(a)(9), Ala.Code 1975. The jury recommended that Dunaway be sentenced to life imprisonment without the possibility of parole for Tressa's murder and to death for James's murder. The circuit court followed the jury's recommendations. Dunaway's convictions and sentences were affirmed on direct appeal. See Dunaway v. State, 746 So.2d 1021 (Ala.Crim.App.1998), aff'd, 746 So.2d 1042 (Ala.1999), cert. denied, 529 U.S. 1089, 120 S.Ct. 1724, 146 L.Ed.2d 645 (2000). This Court issued the certificate of judgment on November 10, 1999.

In April 2001, Dunaway filed a Rule 32 petition in the Barbour Circuit Court attacking his convictions and sentences. He filed amended petitions in October 2001 and January 2004. Evidentiary hearings were held in January 2004, June 2004, and August 2004. On December 14, 2006, the Rule 32 court adopted the State's 110– page order denying the Rule 32 petition. This appeal followed.

This Court set out the following facts in our opinion on direct appeal:

“The evidence showed that [Dunaway] lived with his girlfriend, Tressa Patterson, and her son, James Patterson, in a mobile home in Barbour County. On the evening of January 8, 1997, the mobile home burned. Investigators subsequently discovered the burned bodies of Tressa Patterson and James Patterson, who was 22 months old, in the remains of the mobile home.

“....

“In the course of his investigation, [Fire Marshall Edward] Paulk interviewed [Dunaway]. [Dunaway] made an oral statement and gave a written statement about the fire. In his oral statement, [Dunaway] claimed that he was not present when the fire began. He stated that he had ridden with a ‘crack-head’ in a red pickup truck into Clayton, where he hoped to sell some crack cocaine. He claimed that he decided not to sell the crack, that the man dropped him off on Highway 239 near his mobile home, and that he walked home from there. [Dunaway] claimed that he first saw the fire while he was walking home. He stated that the last time he saw Tressa, she was lying on the couch and James was with her.

“Subsequently, [Dunaway] admitted to Paulk that the story about the man in the red truck was not true. Paulk then asked [Dunaway] if he could take a written statement from him, and [Dunaway] agreed. In that statement, [Dunaway] admitted that he and Tressa had been having problems in their relationship since Thanksgiving of 1996. He stated that Tressa had told him to move out by December 26, 1996, that he had not moved out, and that they had been arguing since December 26, 1996. On or about January 5, 1997, when [Dunaway] still had not moved out, Tressa removed his clothing from the mobile home.

“On January 8, 1997, [Dunaway] watched over James while Tressa was at work. He stated that he and Tressa got into another argument when she came home from work, and that he put a rifle to his head to show his ‘love’ for her. He claimed that he pulled the trigger, but it did not fire. He then laid the rifle on his lap and accidentally fired it at Tressa. [Dunaway] stated that Tressa gasped when she was struck by the first bullet. The noise caused him to panic and he accidentally fired the rifle a second time. [Dunaway] told Paulk that after he determined that Tressa was dead, he said to James, ‘Man, yo momma's dead.’ He then poured rubbing alcohol over Tressa's body and beside the fireplace in the living room. He laid James down near his mother's body and set the alcohol on fire. He then fled to a nearby wooded area and hid the rifle.

“[Dunaway] testified at trial in his own defense. He testified that his mother suffered from paranoid schizophrenia

, and that he had heard voices telling him what to do since he was a child. His trial testimony about the murders was similar to his statement to Paulk, except that he testified that voices started talking to him while he was in the mobile home. He stated that he did not remember everything he did between the time he shot Tressa and the time he realized he was in the woods, and he added that he was not in control of himself at the time. He contended that he did what the voices told him to do. He testified that he made up the story about going to Clayton because he was scared and nervous. He also admitted

that, in spite of his statements immediately following the fire, he knew Tressa and James were in the mobile home when it was burning.”

Dunaway, 746 So.2d at 1023–25.

Standard of Review

This postconviction proceeding was initiated by Dunaway. According to Rule 32.2, Ala. R.Crim. P., Dunaway has the sole “burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle [him] to relief.” When discussing the burden of pleading, this Court in Boyd v. State, 913 So.2d 1113 (Ala.Crim.App.2003), stated:

“ ‘Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.’ Boyd v. State, 746 So.2d 364, 406 (Ala.Crim.App.1999). In other words, it is not the pleading of a conclusion ‘which, if true, entitle[s] the petitioner to relief.’ Lancaster v. State, 638 So.2d 1370, 1373 (Ala.Crim.App.1993). It is the allegation of facts in pleading which, if true, entitle a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala. R.Crim. P., to present evidence proving those alleged facts. ”

913 So.2d at 1125.

“The standard of review on appeal in a post conviction proceeding is whether the trial judge abused his discretion when he denied the petition. Ex parte Heaton, 542 So.2d 931 (Ala.1989).” Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App.1992). “[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo.” Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). “Moreover, ‘when reviewing a circuit court's rulings made in a postconviction petition, we may affirm a ruling if it is correct for any reason.’ ” Lee v. State, 44 So.3d 1145, 1149 (Ala.Crim.App.2009), quoting Bush v. State, 92 So.3d 121, 134 (Ala.Crim.App.2009).

Last, on direct appeal we reviewed Dunaway's conviction for plain error. However, the plain-error standard of review does not apply to postconviction petitions filed pursuant to Rule 32, Ala. R.Crim. P., even when those petitions attack capital-murder convictions in which the death sentence has been imposed. See Hunt v. State, 940 So.2d 1041, 1049 (Ala.Crim.App.2005).

I.

Dunaway first argues that the circuit court erred in adopting in toto the State's proposed order denying postconviction relief because, he argues, the findings of fact are not those of the circuit court's.

“Alabama Courts have repeatedly upheld the circuit court's adoption of proposed orders drafted by the State in postconviction cases.” Hodges v. State, 147 So.3d 916 (Ala.Crim.App.2007). “[E]ven when a circuit court adopts a proposed order in its entirety, the petitioner must show that the findings of fact and conclusions of law in that order are ‘clearly erroneous' before an appellate court will reverse the order solely on the basis that the order was submitted by the State.” Hyde v. State, 950 So.2d 344, 371 (Ala.Crim.App.2006). For the reasons set out in this opinion, we find that the circuit court's findings are not clearly erroneous. Therefore, no basis for relief exists regarding this claim.

II.

Dunaway next argues that the circuit court erred in denying his claim that several jurors failed to truthfully answers questions during voir dire examination, thereby, he argues, denying him the ability to use his peremptory strikes effectively and to make any challenges for cause.

“It is true that the parties in a case are entitled to true and honest answers to their questions on voir dire, so that they may exercise their peremptory strikes wisely. See Fabianke v. Weaver, 527 So.2d 1253 (Ala.1988). However, not every failure to respond properly to questions propounded during voir dire ‘automatically entitles [the defendant] to a new trial or reversal of the cause on appeal.’ Freeman v. Hall, 286 Ala. 161, 166, 238 So.2d 330, 335 (1970) ; see also Dawson v. State, [710 So.2d 472] at 474 [ (Ala.1997) ]; and Reed v. State, [547 So.2d 596 (Ala.1989) ]. As stated previously, the proper standard to apply in determining whether a party is entitled to a new trial in this circumstance is ‘whether the defendant might have been prejudiced by a veniremember's failure to make a proper response.’ Ex parte Stewart, 659 So.2d [122] at 124 [ (Ala.1993) ]. Further, the determination of whether a party might have been prejudiced, i.e., whether there was probable prejudice, is a matter within the trial court's discretion.”

Ex parte Dobyne, 805 So.2d 763, 771–72 (Ala.2001) (footnote omitted).

“The Supreme Court in Ex parte Dobyne [, 805 So.2d 763 (Ala.2001),] identified factors to be used to determine whether probable prejudice existed. The factors include the temporal remoteness of the event, the ambiguity of the question asked, and the juror's willfulness in providing inaccurate information. 805 So.2d at 772.

“ ‘The form of prejudice that would entitle a party to relief for a juror's nondisclosure or falsification in voir

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