Duren v. State

• Decision Date: 24 August 1990
• Docket Number: 6 Div. 272
• Citation: 590 So.2d 360
• Parties: David Ray DUREN v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 360

590 So.2d 360

David Ray DUREN v. STATE.

6 Div. 272.

Court of Criminal Appeals of Alabama.

Aug. 24, 1990.

Rehearing Denied Oct. 12, 1990.

Rory Fitzpatrick and Don E. Gorton III of Bingham, Dana & Gould, Boston, Mass., for appellant.

Don Siegelman, Atty. Gen., and Sandra J. Stewart, Asst. Atty. Gen., for appellee.

TAYLOR, Presiding Judge.

The appellant, David Ray Duren, appeals the denial of his Rule 20, A.R.Crim.P.Temp., petition. In 1984, the appellant was sentenced to death for the 1983 robbery and murder of Kathy Bedsole. We remanded appellant's case for written findings of fact relating to the punishment phase of the trial. Duren v. State, 507 So.2d 111 (Ala.Cr.App.1986). On return to remand, we affirmed appellant's conviction, as did the Alabama Supreme Court. Ex parte Duren, 507 So.2d 121 (Ala.1987). The United States Supreme Court denied certiorari in 1987. Duren v. Alabama, 484 U.S. 905, 108 S.Ct. 249, 98 L.Ed.2d 206 (1987). Appellant filed the current petition in 1988.

The evidence established at trial that on the night of October 20, 1983, the appellant robbed and killed Kathleen Bedsole. The appellant confessed twice to killing Miss Bedsole. The appellant and another individual approached Bedsole's car and told her and her companion to get in the trunk of the car. While the victim and Charles Leonard were in the trunk, the appellant and co-defendant drove to a fast food restaurant and robbed the employees of the restaurant. The appellant then drove the car to a deserted area, took the victim and Leonard out of the trunk and shot and killed Bedsole while she and Leonard were tied together. Four more shots were fired, three of which hit Charles Leonard. Prior to shooting Miss Bedsole, the appellant took two $20 bills from her purse. The appellant was tried and convicted of the murder of Bedsole, which was made capital by the fact that she was killed during a robbery.

Appellant raises many issues on appeal concerning the effectiveness of his trial counsel. The United States Supreme Court case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), sets the standard for evaluating counsel's performance. A two-pronged test is used. "First, the defendant must show that counsel's performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. The attorney must render "reasonably effective assistance." The appellant must show that his counsel's performance was unreasonable, considering all of the attendant circumstances. The Supreme Court went on further to say that "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.

"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 v. Washington, 466 U.S. at 697, 104 S.Ct. at 2069.

I

Appellant initially contends that his trial counsel was ineffective in relying on a defense that was without basis in law. As we stated in the opinion written on appellant's direct appeal: "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." Duren v. State, 507 So.2d at 112. Appellate counsel relied on the defense that Duren did not intend to shoot Miss Bedsole, but rather, intended to shoot her friend Charles Leonard. Attorney Appell testified at the Rule 20 hearing that he knew about the doctrine of transferred intent and that he knew this was not a valid defense. He was hoping that the jury would not find the specific intent necessary for capital murder and, thus, would convict the appellant of regular murder. The trial court made the following findings in regard to this issue:

"When he made this argument, Appell knew that, due to the doctrine of transferred intent, this was not a legally valid defense. Appell presented this defense for several reasons. First, it had been raised by Duren in his confession. Second, after investigation, Appell knew that the prosecution's case was overwhelming and Duren's chances of acquittal or conviction of a lesser included offense were extremely small. Third, Appell knew that, even if this position was not a valid legal defense, a verdict based on this defense would still benefit Duren.

"Appell's decision was not unreasonable. The prosecution's case was overwhelming. Appell had rejected intoxication as a defense because he thought Duren's claim was not credible and that such a defense would only prejudice a jury against his client."

The appellant argues that his trial counsel violated Disciplinary Rule 7-102(A)(2), Code of Professional Responsibility of the Alabama State Bar, which states that "a lawyer shall not knowingly advance a claim or defense that is unwarranted under existing law, except that he may advance such claim or defense if it can be supported by good faith argument for an extension, modification, or reversal of existing law." However, a violation of the Disciplinary Rules does not automatically mean that the appellant lacked effective assistance of counsel.

As the Supreme Court stated in Strickland, the A.B.A. Rules are only "guides to determining what is reasonable.... No particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant." Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065.

In the current case, appellant's trial counsel was faced with overwhelming evidence of the appellant's guilt. The appellant had twice confessed to killing the victim. There was also the eyewitness testimony of Charles Leonard, who identified Duren as the individual who shot and killed Miss Bedsole. The prosecution had a very strong case against the appellant. Thus, we cannot say that Appell's conduct was unreasonable under the circumstances of the instant case. Appell had been practicing law for approximately 10 years at the time of trial and about half of his practice at the time of this trial had been criminal work. He had also represented five defendants prior to the appellant who faced the death penalty. After taking all of the facts into consideration, we agree with and quote the trial judge in saying that "Appell's decision was not unreasonable."

II

The appellant next argues that his counsel was ineffective in failing to develop a defense based on intoxication at the time of the crime. Appell testified at the Rule 20 hearing that he did not raise this as a defense because he thought that the appellant was not telling the truth when he said that he had been taking drugs and also because he thought that this defense would be more prejudicial to the defendant than helpful to him since there was an intense dislike for drugs in the area. Appellant contends that his trial counsel rejected the intoxication defense without investigation. Appell's testimony showed that some investigation was made prior to his decision not to rely on intoxication as a defense. For the reasons stated above, Appell stated that he decided that the appellant would be better off not using that defense.

Even if no substantial investigation had been made, we would still hold that counsel was not ineffective. The federal courts have adopted a three-pronged test to determine if "a decision to forgo a plausible line of defense without substantial investigation was reasonable under the circumstances." Gates v. Zant, 863 F.2d 1492, 1498 (11th Cir.1989), cert. denied, 493 U.S. 945, 110 S.Ct. 353, 107 L.Ed.2d 340 (1989). See also, Birt v. Montgomery, 725 F.2d 587 (11th Cir.1984), cert. denied, 469 U.S. 874, 105 S.Ct. 232, 83 L.Ed.2d 161 (1984). The first factor looks at the attorney's "experience and general awareness that the rejected line of defense was available." The second factor looks at the overall defense strategy, and the third factor looks at the "foreseeable prejudice that might have resulted had the defense not been rejected." Gates v. Zant, 863 F.2d at 1498.

These factors give some guidance when evaluating Appell's decision not to raise intoxication as a defense. The initial inquiry takes into account the attorney's experience with criminal cases. "The more experienced an attorney is, the more likely it is that his decision to rely on his own experience and judgment in rejecting a defense without substantial investigation was reasonable under the circumstances." Gates v. Zant, 863 F.2d at 1498. As stated earlier, Appell had practiced for approximately 10 years prior to the trial of the appellant. Approximately half of his practice was comprised of criminal work. He also had been involved in five prior death penalty cases. We can say that Appell's decision was the "conscious decision of an experienced criminal defense lawyer." Gates v. Zant, 863 F.2d at 1499.

Second, the intoxication defense did not fit into Appell's overall defense strategy. Third, the jury could have been more prejudiced against the appellant if they chose to ignore his defense of intoxication. Furthermore, the testimony as to whether the appellant had been drinking is at the very least inconsistent. A defense witness testified at the Rule 20 hearing that the appellant was intoxicated on the night of the murder and also had taken LSD. During the trial, this witness stated that she had only seen the appellant several days prior to the murder. The...