Duren v. State, 6 Div. 619

• Decision Date: 25 February 1986
• Docket Number: 6 Div. 619
• Citation: 507 So.2d 111
• Parties: David Ray DUREN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 111

507 So.2d 111

David Ray DUREN v. STATE.

6 Div. 619.

Court of Criminal Appeals of Alabama.

Feb. 25, 1986.

On Return to Remand Oct. 14, 1986.

Rehearing Denied Nov. 12, 1986.

Roger C. Appell, Birmingham, for appellant.

Charles A. Graddick, Atty. Gen., and William D. Little, Asst. Atty. Gen., for appellee.

BOWEN, Presiding Judge.

David Ray Duren was convicted for the capital offense involving the robbery and intentional murder of Kathleen Bedsole in violation of Alabama Code 1975, § 13A-5-40(a)(2), and sentenced to death. Three issues are raised on this appeal of that conviction and sentence.

I

At the jury sentencing-phase of the defendant's trial, the trial judge instructed the jury that, "The only [aggravating] circumstances that I'm going to charge you on are what you heard at the trial as to the component portions of the offense itself and as to kidnapping. * * * Aggravating circumstances shall be the following: The capital offense was committed while the defendant was engaged or was an accomplice in the commission of or an attempt to commit or flight after committing or attempting to commit robbery or kidnapping." These were the only aggravating circumstances on which the jury was instructed. The defendant argues that these instructions violated his right to due process of law because the jury was never given a legal definition of kidnapping.

The aggravating circumstance upon which the jury was instructed is found in § 13A-5-49(4): "The capital offense was committed while the defendant was engaged or was an accomplice in the commission of, or an attempt to commit, or flight after committing, or attempting to commit, rape, robbery, burglary or kidnapping." Alabama Code 1975, § 13A-5-49(4). The undisputed evidence in this case, including the facts admitted by the defendant, show that the capital offense was committed while the defendant was engaged in the commission of a robbery and a kidnapping.

This case is unique in that the defendant admitted that the State's evidence was undisputed except on the issue of whether or not the defendant intended to shoot Miss Bedsole. In his opening remarks, defense counsel stated, "Basically, the evidence is going to be, if not identical to what Mr. McDonald [Assistant District Attorney] said, it's going to be substantially the same. We expect the evidence will not sway very much from what Mr. McDonald said it was going to be [in his opening comments to the jury]." Defense counsel then argued that the defendant should be In his closing argument, defense counsel stated, "The evidence is exactly undisputed. It comes out exactly the way Mr. McDonald said, but there is one point of dispute." That "point of dispute" was whether or not Miss Bedsole was facing the defendant at the time he shot her. Counsel stated, "And in fact everything that he [Leonard, the State's only eyewitness] said is exactly the way David [defendant] said it happened. There is no dispute. There is no difference except for that one point."

convicted and punished for murder but not for capital murder.

In complying with Alabama Code 1975, § 13A-5-47(d), the trial court entered written findings of fact summarizing the crime and the defendant's participation in it. On appeal, the defendant adopts those findings as his own and states, "There was never any dispute as to the facts of this case." Appellant's brief, p. 3. Those findings are:

"Findings of Fact from the Trial. This Court makes the following findings of fact from the trial based on the transcript of the testimony provided to this Court for review prior to the sentencing hearing:

"The victim in this case, Kathleen Bedsole, and her companion, Charles Leonard, were on a date on October 20th, 1983 and had left the victim's home at approximately 9:00 p.m. with the intention of going to visit some haunted houses sponsored by radio stations in the Birmingham area, as this was in the Halloween season.

"Sometime after leaving the victim's home, the couple had parked at a location in the Huffman area and, according to testimony of witness Charles Leonard, had been there some five to ten minutes prior to two individuals coming up to the car. One of the individuals was armed with a pistol and was identified by witness Leonard as being the defendant, David Ray Duren. The two individuals instructed the victim and her companion, Charles Leonard, to get out of the car and, further, that, if they did as they were instructed, they would be okay.

"The victim, Kathleen Bedsole, and her companion, Charles Leonard, were subsequently placed in the trunk of the automobile, and the car drove from that location. The witness Leonard testified that on being placed in the trunk that the car traveled for a short distance and stopped. He heard one of the car doors open and, after a short time span, close, and the car proceeded on. After traveling a short distance, the car appeared to get on an interstate highway and traveled for some length of time. On exiting the interstate, the car shortly thereafter entered what appeared to be a drive-in restaurant, and a conversation was overheard between one of the two defendants and an employee of the restaurant. Only a few words were heard, but one of them appeared to be an exclamation shouted by one of the restaurant employees of the word, 'robbery.' Immediately thereafter, the car sped away from the location.

"The car again drove for some distance and appeared to get back on an interstate and drove to a location in the eastern section of Jefferson County known as Trussville. The car drove to a secluded location wherein the victim, Kathy Bedsole, and her companion, Charles Leonard, were taken from the trunk of the car. The second defendant, later identified as Richard David Kinder, tied the victim and her companion together with a length of rope, and after being tied together, the defendant Kinder retrieved the purse belonging to the victim and removed from said purse two twenty dollar bills which had previously been given to the victim by her father prior to her leaving her home.

"After a brief conversation between the defendant, David Duren, and Richard David Kinder, the defendant Kinder turned the victim and her companion in a position where the victim, Kathy Bedsole, was facing away from the defendant David Duren. At this time the defendant Duren raised the pistol which he had had in his possession and fired one shot, which appeared to strike the victim Bedsole. On firing the shot, the victim "Shortly thereafter, the witness Charles Leonard was able to free himself from the rope binding him with the victim Kathy Bedsole, and he walked to a location where he was able to gain assistance and call the sheriff's office for further assistance. When interviewed by the sheriff's deputy answering the call and after ascertaining from witness Leonard as to what had transpired, a radio transmission was then sent and subsequently received by another deputy sheriff who later observed defendants Duren and Kinder walking along a public roadway in the Roebuck/Huffman area. On questioning the individuals and observing their appearance, they were later taken into custody, and on subsequent questioning by Detective Sgt. M.E. White, made a statement admitting their participation in this crime.

Bedsole fell with her companion, Charles Leonard, landing on top of her, as they were still tied together. At this time defendant David Duren aimed the pistol at Charles Leonard and fired approximately four times with three of the shots hitting the witness Charles Leonard in the chest and the legs. After defendant David Duren quit shooting, he and codefendant Richard Kinder left in the victim Charles Leonard's car.

"Further testimony by Dr. Robert Brissie established the cause of death of the victim, Kathy Bedsole, as being the result of a small caliber distant gunshot wound to the back of the head with penetration of the brain."

The undisputed facts show that the capital offense was committed during the commission of a robbery and a kidnapping. The trial judge's charge on aggravating circumstances was incorrect to the extent that it charged the jury that the only aggravating circumstances they could consider were that the capital offense was committed while the defendant was engaged in the commission of a robbery or kidnapping. However, the defendant was in no way prejudiced by the fact that the trial judge charged the aggravating circumstances in the alternative rather than the conjunctive.

The aggravating circumstance that the capital offense was committed during a robbery, § 13A-5-49(4), corresponds to the aggravation alleged in the indictment of murder during a robbery, § 13A-5-40(a)(2). Beck v. State, 396 So.2d 645, 663 (Ala.1980). In this case, the trial judge could have directed the jury to find the presence of that aggravating circumstance.

"The aggravating circumstance relied upon by the prosecution may be the one corresponding to the aggravating component in the indictment. If so, the instruction may be directory in form. Thus, depending upon the facts of the case, a jury may be told either to search the evidence for one or more aggravating circumstances, or they may be told that their verdict of guilty established the presence of an aggravating circumstance. See Ex parte Kyzer, 399 So.2d 330, 335 (Ala.1981); Ala. Code § 13A-5-50 (Supp.1981)." J. Colquitt, The Death Penalty Laws of Alabama, 33 Ala.L.Rev. 213, 323, n. 743 (1982).

See also E. Carnes, Alabama's 1981 Capital Punishment Statute, 42 Ala.Law. 456, 482-83 (1981).

The undisputed facts of this case show that the defendant abducted the two victims and killed one of them. His actions show that beyond any doubt he is at the very least guilty of kidnapping in the second degree. Alabama Code 1975, § 13A-6-44. Since the trial court instructed the jury that they could consider either one aggravating circumstance or the other, since the jury's verdict that the defendant was...