Duncan v. State

• Decision Date: 17 September 1999
• Citation: 827 So.2d 838
• Parties: Trace Royal DUNCAN v. STATE.
• Court: Alabama Court of Criminal Appeals

827 So.2d 838

Trace Royal DUNCAN v. STATE.

CR-95-1544.

Court of Criminal Appeals of Alabama.

September 17, 1999.

Rehearing Denied December 3, 1999.

Joe W. Morgan, Jr., Birmingham, for appellant.

Bill Pryor, atty. gen., and Michael B. Billingsley, asst. atty. gen., for appellee.

McMILLAN, Judge.

The appellant, Trace Royal Duncan, was charged in a two-count indictment with the capital murder of Vicki Deblieux. Count I of the indictment charged the appellant with the capital offense of murder committed during a kidnapping in the first degree, see § 13A-5-40(a)(1), Ala.Code 1975. Count II of the indictment charged the appellant with the capital offense of murder committed during a robbery in the first degree, see § 13A-5-40(a)(2), Ala. Code 1975. The jury found the appellant guilty on both counts of the indictment and returned an advisory verdict recommending the death penalty, by a vote of 10 to 2. A separate sentencing hearing was held before the trial court, after which the appellant was sentenced to death by electrocution.

The trial court made the following findings of fact concerning the offense:

"On the night of February 21, 1994, Vicki Deblieux, age 37, was dropped off by a friend on [interstate highway] I-59 near Chattanooga, Tennessee, to hitchhike to her mother's home in Louisiana.

"Four teenagers, the defendant, Kenny Loggins, Dale Grayson, and Louis Mangione, all who had been drinking alcohol and smoking marijuana, saw her hitchhiking on I-59 at the Trussville exit in Jefferson County, Alabama. They offered to take her to Louisiana; despite her protests, they took her to a wooded area, on the pretense of picking up another vehicle.

"After arriving there, one of them hit her in the head, she ran and Loggins and Grayson gave chase. They tackled her, and along with the defendant, who was wearing boots, kicked and stomped her in the head and body for 30 minutes until she died.

"They then put her body in the back of a pickup truck and took her and her luggage to Bald Rock Mountain; after removing her clothing and playing with her body they threw her off a cliff.

"They then went to a car wash in Pell City to wash the blood out of the truck. After rummaging through her luggage they hid the luggage in the woods.

"On their return to Birmingham they took Mangione home and then returned to Bald Rock Mountain, where they began to mutilate the body by stabbing and cutting her 180 times, removing part of a lung (one of them biting into it, according to one witness) and removing her fingers and thumbs.

"The next morning the defendant's girlfriend found the three of them in Birmingham asleep in the truck all covered in mud and blood. After helping them clean up they all went to the defendant's apartment.

"On February 26, 1994, three rock climbers found Ms. Deblieux's body and called the police. Her body was taken to the medical examiner's office. On examination by the medical examiner he found the following: Every bone in her face was fractured at least once, her skull was broken open with most of the brain separated from it, large laceration on back of the head, extensive bruises on the head, her left and right ribs were fractured, there [were] at least 180 stab wounds all over the body, two incised wounds in chest and abdomen, left lung removed by knife, bleeding of the tongue (from repeated hits on the head), and all fingers and thumbs removed. The cause of death was blunt force trauma to the head.

"All defendants were later arrested after Mangione began showing one of Ms. Deblieux's fingers to friends."

The record also contains the following statement written by the appellant:

"Dale [Grayson] had been talking about killing somebody for some time that night. I told him I didn't like it. Then he asked me if he did kill someone would I freak out. I told him, `Yea.' He said, `if I kill somebody and you freak out, I'll kill you.' So, I remember— okay. So, all I remember is Dale picking her up, taking her to Medical Center East. I got out of Dale's car, drinking some more beer and curled up on Kenny's truck. Then I heard two loud smacks, like two bottles. I looked up and saw three people running. So I went back to sleep, frightened for my life. Had only known Dale for too few days when this happened."

The appellant, after making this statement, added further information upon questioning by the authorities; he then reviewed and signed the statement. That portion of the statement is as follows:

"Dale [Grayson] and Kenny [Loggins] stood on her throat and jumped up and down. I went over and kicked her in the head. She was put in the back of the truck and we drove somewhere where there was a lot of rocks. I noticed that someone had put a beer bottle up inside her. She did not have any clothes on at this time. Kenny and Dale took her out of the truck and threw her over the cliff. Dale, Kenny, Louis and myself left and went to a car wash. There we washed the truck. We then left and Dale and Kenny took me and Louie home. I did not see Dale and Kenny anymore until later that night. Dale and Kenny had two fingers in the back of the truck. I told Kenny he was sick, crazy. Kenny gave Louis one of the fingers. Louie showed it to me— showed me the finger later. Louis told me he was going to make a necklace and put the finger on the necklace."

I.

The appellant contends that the evidence was insufficient to support his conviction for capital murder under § 13A-5-40(a)(1) because, he says, the State failed to prove the elements of kidnapping in the first degree. The appellant argues that there was no evidence of a kidnapping, because, he says, the victim was never restrained, held, abducted, or forcibly confined. In support of his argument, the appellant contends that the victim was willing to be a passenger in the truck and was voluntarily with the participants at the scene of the killing until the moment of her death.

Section 13A-6-43 defines "kidnapping in the first degree" as follows:

"(a) A person commits the crime of kidnapping in the first degree if he abducts another person with intent to

". . . .

"(3) Accomplish or aid the commission of any felony or flight therefrom: or

"(4) Inflict physical injury upon him...."

The abduction element of kidnapping in the first degree is defined at § 13A-6-40(2), as follows:

"(2) ABDUCT. To restrain a person with intent to prevent his liberation by either:

"(a) Secreting or holding him in a place where he is not likely to be found, or

"(b) Using or threatening to use deadly physical force."

Additionally, "restrain" is defined at § 13A-6-40(1), Ala.Code 1975, as follows:

"(1) To intentionally or knowingly restrict a person's movements unlawfully and without consent, so as to interfere substantially with his liberty by moving him from one place to another, or by confining him either in the place where the restriction commences or in a place to which he has been moved. Restraint is `without consent' if it is accomplished by:

"(a) Physical force, intimidation or deception...."

This Court stated in Owens v. State, 531 So.2d 2, 13-14 (Ala.Cr.App.1986):

"Proof of intent, necessary to convict under § 13A-6-43, `must be found by the jury and may be inferred from the facts and circumstances attending the whole transaction.' Doss v. State, 23 Ala.App. 168, 123 So. 237, 248 (1929). In the case at bar, the State's evidence was predominately circumstantial in nature. `A conviction may be had on evidence which is entirely circumstantial, so long as that evidence is so strong and cogent as to show defendant's guilt to a moral certainty.' Tanner v. State, 291 Ala. 70, 71, 277 So.2d 885, 886 (1973). `The test to be applied is whether the jury might reasonably find that the evidence excluded every reasonable hypothesis except that of guilt; not whether such evidence excludes every reasonable hypothesis but guilt, but whether a jury might reasonably so conclude.' Cumbo v. State, 368 So.2d 871, 874 (Ala.Crim.App.1978), cert. denied, 368 So.2d 877 (Ala.1979). In reviewing the sufficiency of the State's evidence of kidnapping in the first degree, we must view the evidence in the light most favorable to the State. Id."

The State's evidence revealed that the appellant and his codefendants picked up the victim with the intent to "inflict physical injury upon" her. The appellant's written statement indicated that "Dale had been talking about killing somebody for some time that night," prior to the victim's abduction. The act of transporting the victim to an isolated area clearly supports the conclusion that the appellant and his accomplices intended to prevent her liberation by "[s]ecreting [her] or holding [her] in a place where [she was] not likely to be found." The evidence indicated that the restraint required for the abduction of the victim was accomplished through "deception." § 13A-6-40(1)(a). The evidence indicated that the victim was hitchhiking to Louisiana to see her mother and that the appellant and his codefendants, acting under false pretenses, informed the victim that they would take her to Louisiana. Additionally, evidence was presented that the victim protested when the car exited the interstate and the driver drove to a wooded area to pick up a truck. Moreover, the evidence indicated that the victim asked to be let out of the car when she realized that they were not headed toward her destination. Thus, at that point, she was being held against her will. Evidence was presented that immediately before her death, the victim was hit in the head with a beer bottle, at which time she attempted to run away but was tackled, and then kicked and beaten until she died. According to his own statement, the appellant participated in the murder. The evidence strongly suggests that the foursome intended to harm Deblieux. Moreover, there was evidence indicating that the appellant stood watch over the victim when she "used the bathroom" in the woods and that he returned to tell the others that she...