Ex parte Duren
Citation | 590 So.2d 369 |
Parties | Ex parte David Ray DUREN. (Re David Ray Duren v. State). 1900162. |
Decision Date | 13 September 1991 |
Court | Supreme 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.
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:
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:
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:
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