Kuk v. State

• Decision Date: 24 July 1992
• Citation: 602 So.2d 1213
• Court: Alabama Court of Criminal Appeals
• Parties: Jerome Peter KUK v. STATE of Alabama. CR 91-170.

Page 1213

602 So.2d 1213

Jerome Peter KUK v. STATE of Alabama.

CR 91-170.

Court of Criminal Appeals of Alabama.

July 24, 1992.

David S. Luker and Tamera K. Erskine, Birmingham, for appellant.

James H. Evans, Atty. Gen., and J. Thomas Leverette, Asst. Atty. Gen., for appellee.

BOWEN, Judge.

This is an appeal from the denial of a motion for post-conviction relief that was filed pursuant to Rule 20, A.R.Crim.P.Temp. (now Rule 32, A.R.Crim.P.).

In April 1988, Jerome Peter Kuk, the appellant, was convicted for the murder of William Dillow. He was sentenced to 99 years' imprisonment, was fined $20,000, and was ordered to pay $4,000 in restitution. No direct appeal was taken from that conviction and sentence. The record currently before this Court does not contain the history of the appellant's post-conviction proceedings. However, in an earlier appeal involving the same petition now under consideration, we noted:

"The appellant states that on June 15, 1988, he filed a petition for writ of habeas corpus in the Montgomery Circuit Court and that his petition subsequently was transferred to the Barbour Circuit Court. The appellant says that on January 27, 1989, he filed a petition under Rule 20 in the Barbour Circuit [C]ourt, that notice of appearance by counsel was filed on March 9, 1989, and that the petition was set for hearing on September 22, 1989. The appellant further says that on August 25, 1989, his counsel amended the petition and that, on or about the same date, he filed a pro se motion to dismiss the petition. The record indicates that on October 30, 1989, the appellant's motion to dismiss was granted and that on October 31, 1989, a motion by his counsel to withdraw also was granted. On April 4, 1990, the appellant filed the present petition, which was summarily dismissed on April 6, 1990, 'due to a previous Rule 20 [petition] having been filed.' "

Kuk v. State, 580 So.2d 750, 751 (Ala.Cr.App.1991). Because there was nothing in the record to indicate either that the appellant's prior Rule 20 petition had been adjudicated on the merits or that the State had met its burden of pleading that fact as a ground of preclusion, this Court remanded the cause for further proceedings. Kuk, 580 So.2d at 751-52. On remand, the trial court conducted an evidentiary hearing on the merits of the petition, permitted the parties to brief several points, and allowed the parties to offer written closing arguments. The trial court subsequently entered a written order denying the petition. R. 79C-93C.

I.

The appellant was represented at trial by two retained attorneys. ¹ As one of the grounds of his Rule 20 petition, the appellant asserted that the performance of these attorneys before and during his trial amounted to the ineffective assistance of counsel. A large part of the evidentiary hearing was devoted to this allegation, with both of the appellant's trial attorneys, the appellant, and an attorney called by the appellant as an expert witness testifying on the matter.

A convicted defendant who claims that his attorney was ineffective must meet the two-prong test set out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984):

"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 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."

In order to meet the first prong of the Strickland test, "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. He must also "identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment." 466 U.S. at 690, 104 S.Ct. at 2066.

In assessing whether a defendant has established the first prong of the Strickland test, a reviewing court

"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.... 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." Id.

To support his claim that his trial attorneys were ineffective, the appellant has identified eleven specific omissions that he alleges fell below the Strickland "objective standard of reasonableness." One of these omissions is the attorneys' failure to object to the trial court's instructing the jury on reckless murder.

"Under Alabama law, there are three forms of murder: 'intentional murder,' defined in [Ala.Code 1975,] § 13A-6-2(a)(1); 'reckless [or universal malice] murder,' defined in § 13A-6-2(a)(2); and 'felony murder,' defined in § 13A-6-2(a)(3)." Starks v. State, 594 So.2d 187, 193 (Ala.Cr.App.1991). The appellant was charged in a one-count indictment with intentional murder only. See Supp.R. 28, 240-41. However, the trial court instructed the jury on both intentional murder and reckless murder. Supp.R. 245-48. The case of Marsh v. State, 418 So.2d 191 (Ala.Cr.App.1982) (hereinafter "Marsh I" ), involved this same situation. Marsh objected to the reckless murder instruction at trial and, on appeal, argued that that instruction constituted a fatal variance from the indictment, which charged him with only intentional murder. Marsh I, 418 So.2d at 192. With a minimum of discussion, this Court held that the jury charge on both intentional murder and reckless murder was proper. Marsh I, 418 So.2d at 192-93.

Marsh I was decided May 18, 1982, and the Alabama Supreme Court denied certiorari review on August 27, 1982. Less than two years later, however, our Supreme Court overruled Marsh I and held that it is reversible error for a trial judge to instruct the jury on reckless murder where the indictment charges the defendant with only intentional murder. Ex parte Washington, 448 So.2d 404 (Ala.1984) (decided March 9, 1984). The Court began its discussion by recognizing that

"[a] defendant is constitutionally entitled to be informed of the nature and the cause of the accusation against him. The function of the indictment is to inform the accused of the crime with which he is charged, so that he may prepare a defense if one is available. The person accused of a crime is required at trial to answer only the specific charge contained in the indictment."

Ex parte Washington, 448 So.2d at 407 (citations omitted) (emphasis added). After determining that intentional murder and reckless murder are, in fact, different offenses, the Court "conclude[d] that the trial court erred in giving an instruction on ['reckless' or] 'universal malice' murder. Defendant has a constitutional right to be informed of the charges against him." Ex parte Washington, 448 So.2d at 408.

Within ten months after the release of the Alabama Supreme Court's opinion in Ex parte Washington, this Court had summarily reversed five murder convictions on the authority of that opinion. Dawson v. State, 449 So.2d 800 (Ala.Cr.App.1984) (decided April 10, 1984); Hughley v. State, 451 So.2d 439 (Ala.Cr.App.1984) (decided May 22, 1984); Ponder v. State, 451 So.2d 1382 (Ala.Cr.App.1984) (decided June 12, 1984); Bell v. State, 455 So.2d 1022 (Ala.Cr.App.1984) (decided August 28, 1984); Marsh v. State, 461 So.2d 51 (Ala.Cr.App.1984) (decided December 11, 1984) (hereinafter "Marsh II "). The last of these five cases, Marsh II, involved the same defendant whose conviction we had affirmed in Marsh I. In Marsh II, we determined that the holding of Ex parte Washington was to be applied retroactively, and we reversed Marsh's conviction based on the improper jury instruction on reckless murder. Marsh II, 461 So.2d at 53.

In Mathews v. State, 491 So.2d 1087 (Ala.Cr.App.1986) (decided May 27, 1986), we again reversed a murder conviction where the indictment had charged only intentional murder and the trial court had instructed the jury on reckless murder. Eighteen months later, we held that an instruction on reckless murder where the defendant was charged with only intentional murder was not harmless error under Rule 45, A.R.App.P. Hall v. State, 520 So.2d 218 (Ala.Cr.App.1987) (decided October 27, 1987). In each of the cases cited above, defense counsel objected to the reckless murder charge at trial.

The appellant was tried on April 25, 1988, more than four years after Ex parte Washington was decided. We are of the opinion that any reasonably competent attorney would have been aware, at the time of the appellant's trial, of Washington and at least most of its progeny. ² Consequently, we find that the performance of the appellant's retained trial attorneys in failing to object to a clearly erroneous jury instruction "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. It is simply impossible for this Court to conclude that, "under the circumstances, the challenged action 'might be considered sound trial strategy.' " Strickland, 466 U.S. at 689, 104 S.Ct. at 2065. See Commonwealth v. Stago, 267 Pa.Super. 90, 406 A.2d 533, 536-38 (1979).

In its written order, the trial court recognized that the instruction on reckless murder constituted error at the appellant's trial, but found that the appellant was not prejudiced by the...