Ex parte Duren

Citation590 So.2d 369
PartiesEx parte David Ray DUREN. (Re David Ray Duren v. State). 1900162.
Decision Date13 September 1991
CourtSupreme Court of Alabama

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

James H. Evans, Atty. Gen., and Sandra J. Stewart, Asst. Atty. Gen., for appellee.

MADDOX, Justice.

David Ray Duren appealed from the denial of his Rule 20, A.R.Crim.P.Temp., petition for relief from his conviction of capital murder and sentence of death. The Court of Criminal Appeals affirmed. 590 So.2d 360. On certiorari review he contends that he was denied effective assistance of counsel during his trial and during his sentencing hearing.

In 1984, Duren was convicted of the October 20, 1983, robbery and murder of Kathleen Bedsole. On appeal, the Court of Criminal Appeals remanded the case to the trial court for the entry of specific written findings of fact relating to the punishment phase of the trial; on return to remand on October 14, 1986, that court affirmed Duren's conviction, and it denied rehearing on November 12, 1986, Duren v. State, 507 So.2d 111 (Ala.Cr.App.1986); and this Court affirmed his conviction on April 10, 1987, Ex parte Duren, 507 So.2d 121 (Ala.1987). The United States Supreme Court denied certiorari. Duren v. Alabama, 484 U.S. 905, 108 S.Ct. 249, 98 L.Ed.2d 206 (1987). Duren filed with the Jefferson Circuit Court a petition for Rule 20, A.R.Crim.P.Temp., relief, which that court denied. On August 24, 1990, the Court of Criminal Appeals affirmed that denial.

The Alabama Court of Criminal Appeals listed the facts surrounding the murder, as shown in the trial court's findings of fact, as follows:

"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 "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.

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 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 brain."

Duren v. State, 507 So.2d at 113-14.

During the trial of the case, Duren's sole "defense" was that he had meant to kill Charles Leonard instead of Kathleen Bedsole. Because Alabama recognizes the theory of transferred intent, that was not a defense. Duren was found guilty of a capital offense involving the robbery and intentional murder of Kathleen Bedsole, Ala.Code 1975, § 13A-5-40(a)(2), and was sentenced to death.

Duren contends that he was denied effective assistance of counsel during his trial and during his sentencing hearing. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), sets out the standard of proof required in an ineffective assistance of counsel claim. In that case, the United States Supreme Court states:

"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, 466 U.S. at 687, 104 S.Ct. at 2064.

In Ex parte Womack, 541 So.2d 47 (Ala.1988), this Court discussed the applicability of Strickland to ineffective assistance of counsel claims in Alabama. That case stated:

"The first prong of the Strickland test is that 'the defendant must show that counsel's representation fell below an objective standard of reasonableness.' 466 U.S. at 688, 104 S.Ct. at 2064. The court explained that this prong of the test does not impose specific guidelines but rather implies fulfillment of the basic duties of the attorney, to assist the client and to be a loyal advocate of the client's position. Likewise, the Supreme Court explained that an attorney has a duty to 'bring to bear such skill and knowledge "The Court went on to explain that judicial scrutiny of counsel's performance must be highly deferential, avoiding the lure of 20/20 hindsight, and must adopt counsel's perspective at the time of trial. '[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' 466 U.S. at 689, 104 S.Ct. at 2065. Because of the diverse methodologies employed by defense counsel and the broad range of opinion about how to best address a particular situation, the burden is upon the defendant to overcome the presumption that the challenged action constitutes 'sound trial strategy.' Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 164, 100 L.Ed. 83 (1955). The court must determine whether,

                as will render the trial a reliable adversarial testing process.'  466 U.S. at 688, 104 S.Ct. at 2065, citing Powell v. Alabama, 287 U.S.   at 68, 53 S.Ct.   at 63 [77 L.Ed. 158 (1932) ].  'Moreover, the purpose of the effective assistance guarantee of the Sixth Amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system.  The purpose is simply to ensure that criminal defendants receive a fair trial.'  466 U.S. at 689, 104 S.Ct. at 2065
                

" '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 that particular case. At the same time, the court should...

To continue reading

Request your trial
143 cases
  • Capote v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 10 Enero 2020
    ...context of the entire proceeding in which the comments were made." ’ Duren v. State, 590 So. 2d 360 (Ala. Cr. App. 1990), aff'd, 590 So. 2d 369 (Ala.1991), cert. denied, 503 U.S. 974, 112 S.Ct. 1594, 118 L.Ed.2d 310 (1992) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 ......
  • Reynolds v. State Of Ala.
    • United States
    • Alabama Court of Criminal Appeals
    • 1 Octubre 2010
    ...prosecutor must be evaluated in the context of the whole trial. Duren v. State, 590 So. 2d 360, 364 (Ala. Cr. App. 1990), aff'd, 590 So. 2d 369 (Ala. 1991), cert, denied, 503 U.S. 974, 112 S.Ct.1594, 118 L.Ed.2d 310 (1992). 'Prosecutorial misconduct is subject to a harmless error analysis.'......
  • Doster v. State Of Ala.
    • United States
    • Alabama Court of Criminal Appeals
    • 30 Julio 2010
    ...and the remarks must be evaluated in the context of the whole trial, Duren v. State, 590 So. 2d 360 (Ala. Cr. App. 1990), aff'd, 590 So. 2d 369 (Ala. 1991). 'In order to constitute reversible error, improper argument must be pertinent to the issues at trial or its natural tendency must be t......
  • Sheffield v. State Of Ala.
    • United States
    • Alabama Court of Criminal Appeals
    • 5 Noviembre 2010
    ...and the remarks must be evaluated in the context of the whole trial, Duren v. State, 590 So. 2d 360 (Ala. Cr. App. 1990), aff'd, 590 So. 2d 369 (Ala. 1991). 'In order to constitute reversible error, improper argument must be pertinent to the issues at trial or its natural tendency must be t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT