Dunkins v. State

• Court: Alabama Court of Criminal Appeals
• Writing for the Court: TYSON
• Citation: Dunkins v. State, 489 So.2d 603 (Ala. Crim. App. 1985)
• Decision Date: 09 April 1985
• Docket Number: 6 Div. 591
• Parties: Horace Franklin DUNKINS, Jr. v. STATE.

Page 603

489 So.2d 603

Horace Franklin DUNKINS, Jr. v. STATE.

6 Div. 591.

Court of Criminal Appeals of Alabama.

April 9, 1985.

Rehearing Denied May 14, 1985.

Certiorari Quashed June 3, 1986 Alabama Supreme Court 84-876.

John C. Falkenberry and Frances Heidt, Stewart, Falkenberry & Whatley, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and Ed Carnes and John Gibbs, Asst. Attys. Gen., for appellee.

TYSON, Judge.

The appellant was convicted of the capital offense of rape when the victim is intentionally killed and sentenced to death by electrocution. This court affirmed his conviction on appeal, as did the Alabama Supreme Court. Dunkins v. State, 437 So.2d 1349 (Ala.Crim.App.), affirmed, 437 So.2d 1356 (Ala.1983). A petition for writ of certiorari to the Alabama Supreme Court was denied without opinion by United States Supreme Court on February 21, 1984. Dunkins v. Alabama, 465 U.S. 1051, 104 S.Ct. 1329, 79 L.Ed.2d 724 (1984).

The appellant filed a petition for writ of error coram nobis before the trial court which issued the judgment of conviction. Following a hearing on the allegations contained therein, the trial court denied the petition.

I

The petitioner alleges that he was denied the effective assistance of counsel at trial and on appeal. He raises a number of issues which he claims proves such an allegation. Such issues are: (1) the failure to interview material and potential witnesses; (2) the failure of counsel to make a record on the systematic exclusion of blacks from the jury and the failure to pursue such matter on appeal; (3) the failure of counsel to pursue the issue of defendant's psychological condition; and (4) counsel's failure to adequately address the issues on appeal.

The United States Supreme Court has established guidelines for review of ineffective assistance of counsel claims. In Daniel v. State, 459 So.2d 948 (Ala.1984), the Alabama Supreme Court recognized that in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the court held:

"A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable."

Strickland, supra 104 S.Ct. at 2064. The court further held:

"When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.

"More specific guidelines are not appropriate. The Sixth Amendment refers simply to 'counsel,' not specifying particular requirements of effective assistance. It relies instead on the legal profession's maintenance of standards sufficient to justify the law's presumption that counsel will fulfill the role in the adversary process that the Amendment envisions. See Michel v. Louisiana, 350 U.S. 91, 100-101, 76 S.Ct. 158, 163-164, 100 L.Ed. 83 (1955). The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.

"...

"Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. CF. Engle v. Isaac, 456 U.S. 107, 133-134, 102 S.Ct. 1558, 1574-1575, 71 L.Ed.2d 783 (1982). A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.' See Michel v. Louisiana, supra, 350 U.S., at 101, 76 S.Ct., at 164. There are countless ways to provide effective assistance of any given case. Even the best criminal defense attorneys would not defend a particular client in the same way. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N.Y.U.L.Rev. 299, 343 (1983).

"...

"Thus, 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. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment."

Strickland, supra 104 S.Ct. at 2065-2066.

To sustain a claim for ineffective assistance of counsel, one must not only show unreasonable error, but also prejudice to the defense. The court explained:

"An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-365, 101 S.Ct. 665, 667-668, 66 L.Ed.2d 564 (1981). The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution.

"...

"The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."

Strickland, supra 104 S.Ct. at 2067-2068. The court further held:

"The governing legal standard plays a critical role in defining the question to be asked in assessing the prejudice from counsel's errors. When a defendant challenges a conviction, the question is whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. When a defendant challenges a death sentence such as the one at issue in this case, the question is whether there is a reasonable probability that, absent the errors, the sentencer--including an appellate court, to the extent it independently reweighs the evidence--would have concluded that the balance of aggravating and mitigating circumstances did not warrant death."

Strickland, supra 104 S.Ct. at 2069. See also, Daniel, supra, at 949-951.

In reviewing the ineffectiveness claims advanced by the petitioner, we must follow the mandate of Strickland and apply its findings to the circumstances of this case.

A

Petitioner alleges that his trial counsel was ineffective for his failure to interview one Ernest Jackson. Both at trial and on appeal, Dunkins contended that his confession was admitted in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), alleging that he was interrogated after having requested counsel. Such claim was rejected by this court.

At the coram nobis hearing, Ernest Jackson testified that he was a co-worker of Dunkins. He was present when the deputies first approached Dunkins at his place of work. Jackson testified that, as the officers were arresting Dunkins, Dunkins told them that he could call his lawyer. Jackson was not called as a witness during trial of the cause and no such remark was brought out in evidence at trial. Evidence was elicited at trial that Dunkins had requested a lawyer later on the same day.

This testimony is the basis of the first claim for ineffective assistance of counsel, such being that trial counsel failed to interview key and potential witnesses.

Trial counsel testified that he had talked with Dunkins on numerous occasions prior to trial of this case. During these conversations Dunkins related a version of the rape and murder which paralleled the confession which was admitted into evidence. Counsel further questioned Dunkins extensively about when Dunkins requested an attorney. Counsel felt that such was important for the basis to attempt to have the confession suppressed. Dunkins never told trial counsel that he requested an attorney at his place of employment. Further, counsel testified that Dunkins indicated Jackson would have nothing to offer in defense of Dunkins.

"[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's...