Duncan v. State

• Decision Date: 18 March 2005
• Docket Number: CR-03-1634.
• Citation: 925 So.2d 245
• Parties: Trace Royal DUNCAN v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

925 So.2d 245

Trace Royal DUNCAN v. STATE of Alabama.

CR-03-1634.

Court of Criminal Appeals of Alabama.

March 18, 2005.

On Return to Remand May 27, 2005.

Rehearing Denied July 8, 2005.

Certiorari Denied August 19, 2005 Alabama Supreme Court 1041589.

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M. Bradley Almond, Tuscaloosa, for appellant.

Troy King, atty. gen., and Jasper B. Roberts, Jr., asst. atty. gen., for appellee.

BASCHAB, Judge.

On November 2, 1995, the appellant, Trace Royal Duncan, was convicted of the capital offenses of kidnapping-murder, a violation of § 13A-5-40(a)(1), Ala.Code 1975, and robbery-murder, a violation of § 13A-5-40(a)(2), Ala.Code 1975. By a vote of 10-2, the jury recommended that he be sentenced to death. On March 8, 1996, the trial court accepted the jury's recommendation and sentenced him to death. This court affirmed the appellant's convictions on direct appeal, see Duncan v. State, 827 So.2d 838 (Ala.Crim.App.1999); the Alabama Supreme Court affirmed our judgment, see Ex parte Duncan, 827 So.2d 861 (Ala.2001); and the United States Supreme Court denied the appellant's petition for certiorari review, see Duncan v. Alabama, 537 U.S. 860, 123 S.Ct. 237, 154 L.Ed.2d 99 (2002). The relevant facts of the case are set forth in this court's opinion on direct appeal. This court issued a certificate of judgment on February 26, 2002.

On July 29, 2003, the appellant, through counsel, filed a Rule 32 petition, challenging his convictions. Thereafter, the appellant, through counsel, filed amended Rule 32 petitions on August 21, 2003, on November 4, 2003, and on March 29, 2004. After the State responded, the circuit court summarily denied the petition and the amendments thereto. This appeal followed.

As an initial matter, we note that, in Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 1200, 161 L.Ed.2d 1 (2005), the United States Supreme Court held that "[t]he Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed." Because this case is before this court on appeal from the denial of the appellant's Rule 32 petition, we must determine whether Roper applies retroactively to cases on collateral review. In Clemons v. State, [Ms. CR-01-1355, August 29, 2003] ___ So.2d ___, ___ (Ala.Crim.App.2003), when concluding that the United States Supreme Court's decision in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), applies retroactively to cases on collateral review, we reasoned:

"In Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989), the United States Supreme Court held:

"`[W]e now adopt Justice Harlan's view of retroactivity for cases on collateral review. Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.'

"The Court then recognized two exceptions to the general rule: (1) those instances in which the new rule places certain kinds of conduct beyond the power of the criminal law-making authority to proscribe and (2) those instances in which the new rule is a `watershed' rule of criminal procedure that requires the observation of procedures that are implicit in the concept of ordered liberty and whose non-application would seriously diminish the likelihood of an accurate conviction. See Teague, 489 U.S. at 307, 311, 313, 109 S.Ct. at 1073, 1076, 1077.

"In Penry [v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989)], supra, the United States Supreme Court stated:

"`Under Teague, we address the retroactivity issue as a threshold matter because Penry is before us on collateral review. 489 U.S., at 310. If we were to hold that the Eighth Amendment prohibits the execution of mentally retarded persons such as Penry, we would be announcing a "new rule." Id., at 301. Such a rule is not dictated by precedent existing at the time Penry's conviction became final. Moreover, such a rule would "brea[k] new ground" and would impose a new obligation on the States and the Federal Government. Ibid. (citing Ford v. Wainwright, 477 U.S. 399, 410 (1986), which held that the Eighth Amendment prohibits the execution of insane persons, as a case announcing a new rule).

"`In Teague, we concluded that a new rule will not be applied retroactively to defendants on collateral review unless it falls within one of two exceptions. Under the first exception articulated by Justice Harlan, a new rule will be retroactive if it places "`certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe.'" Teague, supra, at 307 (quoting Mackey [v. U.S.], 401 U.S. [667], at 692 [(1971)] (Harlan, J., concurring in judgments in part and dissenting in part)). Although Teague read this exception as focusing solely on new rules according constitutional protection to an actor's primary conduct, Justice Harlan did speak in terms of substantive categorical guarantees accorded by the Constitution, regardless of the procedures followed. This Court subsequently held that the Eighth Amendment, as a substantive matter, prohibits imposing the death penalty on a certain class of defendants because of their status, Ford v. Wainwright, supra, at 410 (insanity), or because of the nature of their offense, Coker v. Georgia, 433 U.S. 584 (1977) (rape) (plurality opinion). In our view, a new rule placing a certain class of individuals beyond the State's power to punish by death is analogous to a new rule placing certain conduct beyond the State's power to punish at all. In both cases, the Constitution itself deprives the State of the power to impose a certain penalty, and the finality and comity concerns underlying Justice Harlan's view of retroactivity have little force. As Justice Harlan wrote: "There is little societal interest in permitting the criminal process to rest at a point where it ought properly never to repose." Mackey, supra, at 693. Therefore, the first exception set forth in Teague should be understood to cover not only rules forbidding criminal punishment of certain primary conduct but also rules prohibiting a certain category of punishment for a class of defendants because of their status or offense. Thus, if we held, as a substantive matter, that the Eighth Amendment prohibits the execution of mentally retarded persons such as Penry regardless of the procedures followed, such a rule would fall under the first exception to the general rule of nonretroactivity and would be applicable to defendants on collateral review.'

"492 U.S. at 329-30, 109 S.Ct. at 2952-53 (emphasis added). Accordingly, we conclude that the decision in Atkins falls within Teague's first exception to the general rule of nonretroactivity and applies retroactively to cases that are on collateral review."

(Footnote omitted.) Similarly, Roper prohibits the execution of offenders who were under the age of 18 when their crimes were committed, regardless of the procedures followed. Therefore, we conclude that the decision in Roper falls within Teague's first exception to the general rule of nonretroactivity and applies retroactively to cases that are on collateral review.

The record clearly establishes that the appellant was 17 years old at the time of the offense in this case. Therefore, pursuant to Roper, his sentence of death is unconstitutional and must be set aside. For the reasons set forth herein, we conclude that the circuit court properly denied his requests for post-conviction relief as to the guilt phase of his trial and that his conviction is valid. However, in accordance with Roper, we must remand this case to the circuit court for that court to set aside the appellant's sentence of death and to resentence him to imprisonment for life without the possibility of parole. Further, because the sentence of death is no longer valid, it is not necessary to review the appellant's claims regarding the penalty phase of his trial because error, if any, in that regard is rendered harmless by Roper, and any arguments concerning the penalty phase of his trial are now moot. See Rule 45, Ala. R.App. P.

The appellant raises several arguments, including claims that his attorneys rendered ineffective assistance during the proceedings. In reviewing the circuit court's rulings on the appellant's arguments, we apply the following principles:

"`"[T]he plain error rule does not apply to Rule 32 proceedings, even if the case involves the death sentence." Thompson v. State, 615 So.2d 129 (Ala.Cr.App. 1992).' Cade v. State, 629 So.2d 38, 41 (Ala.Crim.App.1993), cert. denied, , 114 S.Ct. 1579, 128 L.Ed.2d 221 (1994).

"In addition, `[t]he procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed.' State v. Tarver, 629 So.2d 14, 19 (Ala.Crim.App. 1993)."

Brownlee v. State, 666 So.2d 91, 93 (Ala. Crim.App.1995).

"To prevail on a claim of ineffective assistance of counsel, the defendant must show (1) that his counsel's performance was deficient and (2) that he was prejudiced as a result of the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

"`The appellant must show that his counsel's performance was unreasonable, considering all of the attendant circumstances. . . . "[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 690, 104 S.Ct. at 2066.'

"Duren v. State, 590 So.2d 360, 362 (Ala. Cr.App.1990), aff'd, 590 So.2d 369 (Ala. 1991), cert. denied, , 112 S.Ct. 1594, 118 L.Ed.2d 310 (1992).

"When this court is reviewing a claim of ineffective assistance of counsel, we...