No. 97-6650
Federal
Circuits, 11th Cir.
November 20,
1998
Before ANDERSON, COX and
DUBINA, Circuit Judges.
ANDERSON, Circuit Judge:
FACTS AND PROCEDURAL
HISTORY
David Ray Duren appeals the
district court's denial of his petition for writ
of habeas corpus, in which he seeks relief from
his conviction of capital murder and from his
sentence of death. On the evening of October 20,
1983, sixteen year-old Charles Leonard picked up
his girlfriend, sixteen year-old Kathleen
Bedsole, in his father's Oldsmobile. On their
date they were planning to visit some haunted
houses in the Birmingham area sponsored by a
local radio station.
As Leonard drove he noticed a
car behind them flashing its headlights.
Thinking the car behind them that of a friend,
he pulled over into a cul-de-sac and waited.
Several minutes later, another car entered the
circle, backed out, and then parked. Two men,
David Ray Duren and Richard Kinder, emerged and
approached the teenagers, still waiting in the
Oldsmobile. Duren, carrying a pistol, ordered
Leonard and Bedsole out of the car. Duren and
Kinder, the latter now wielding a knife, then
forced the couple into the trunk.
The two men then drove the
Oldsmobile along with their own vehicle to a
nearby lot. Abandoning their own car, Duren and
Kinder reunited in Mr. Leonard's Oldsmobile.
They proceeded to a drive-in restaurant,
intending to rob it. Before the robbery
transpired, however, Kinder bungled it by
prematurely exposing a pistol. The pair then
fled the scene of the botched attempt.
After driving some distance,
Duren stopped the car in a secluded area in
Trussville, Alabama. Duren and Kinder opened the
trunk, removed the couple, and tied them
together. Kinder seized Kathleen Bedsole's purse
and took two twenty-dollar bills from it. The
two men then stepped away and huddled, briefly
discussing the fate of the couple. They resolved
that Duren would shoot the teenagers to
eliminate possible witnesses. Their
deliberations finished, Kinder returned to the
car; Duren, pistol now in hand, strode toward
the bound couple.
Standing approximately seven
feet from the tied teenagers, Duren raised his
pistol, aimed it, and squeezed the trigger. The
gun discharged, striking Kathleen Bedsole in the
head. She collapsed,
pulling down Leonard with her. Duren lowered the
gun and continued firing, striking Leonard in
the legs, hips, and chest. Apparently believing
both teenagers were dead, Duren walked back to
the car and drove away with Kinder.
Shortly after the two men
drove away, Charles Leonard, still alive,
extricated himself from the rope that bound him.
Though riddled with three bullet wounds, Leonard
managed to make his way to the home of Mr. and
Mrs. Dosier, who promptly notified the Sheriff's
Department of the crimes. Kinder and Duren were
apprehended shortly thereafter in nearby Huffman,
Alabama. Later the same evening, Charles Leonard
identified Duren as the man who had shot him and
Kathleen Bedsole. Upon subsequent questioning,
Duren confessed twice to his participation in
the crime. He also led officers to the crime
scene and pointed out where he had hidden the
murder weapon.
At trial in Jefferson County,
Alabama, on March 7, 1984, a jury convicted
Duren of capital murder-intentionally killing
his victim while engaged in the commission of an
armed robbery and/or kidnapping. Later that day,
the jury returned a verdict fixing the
punishment at death. Before the sentence was
actually imposed, however, the judge presiding
over the case, Judge Joseph Jasper, learned that
his deceased wife was a fifth cousin of the
defendant Duren. Judge Jasper recused himself,
and the case was transferred to Judge James
Garrett.
At the sentencing, September
14, 1984, Judge Garrett adopted the trial
transcript, yet afforded Duren the opportunity
to present any witnesses he desired. In large
measure, Duren called the same witnesses as he
had at trial, plus two new witnesses. After
considering all of the evidence, Judge Garrett
concluded that the aggravating circumstances
outweighed the mitigating circumstances and
therefore imposed a sentence of death.
The Alabama Court of Criminal
Appeals upheld the conviction on February 25,
1986. Duren v. State, 507 So.2d 111, 121 (Ala.Crim.App.1986).
The court remanded the case, however, on the
ground that the record was insufficient to
conduct an adequate proportionality review of
the sentence. On remand, the trial court made
further findings and conducted a proportionality
review as to the propriety of the death sentence.
On return, the Court of Criminal Appeals
affirmed the death sentence. Id. at 121.
On April 10, 1987, the
Alabama Supreme Court affirmed without comment.
Ex parte Duren, 507 So.2d 121 (Ala.1987).
Duren's petition for writ of certiorari was
denied by the United States Supreme Court on
October 13, 1987. Duren v. Alabama,
484 U.S. 905 , 108 S.Ct. 249, 98 L.Ed.2d
206 (1987). Seeking post-conviction
relief, Duren filed a petition pursuant to
Temporary RULE 20 OF THE ALABAMA RULES OF
CRIMINAL PROCEDURE
on February 10, 1988. The Rule 20 court
concluded that the majority of defendant's
claims were procedurally barred and denied the
ineffective assistance of counsel claim on the
merits. Duren v. State, CC-83-0382, slip op. at
1, 4-16 (Cir. Ct. Jefferson Co. July 27, 1989).
The Alabama Court of Criminal
Appeals affirmed the judgment of the Rule 20
court, denying the ineffective assistance claim
on the merits and finding the others
procedurally barred. Duren v. State, 590 So.2d
360, 362-63 (Ala.Crim.App.1990). The Alabama
Supreme Court affirmed and denied rehearing. Ex
parte Duren, 590 So.2d 369, 375 (Ala.1991). The
Supreme Court of the United States then denied
Duren's petition for writ of certiorari. Duren
v. Alabama,
503 U.S. 974 , 112 S.Ct. 1594, 1594-95,
118 L.Ed.2d 310 (1992).
Finally, Duren filed a
petition in federal court pursuant to 28 U.S.C.
2254 on October 11, 1994. The district court
denied Duren's petition for writ of habeas
corpus and his request for an evidentiary
hearing on July 10, 1997. Duren appeals.
Duren asserts several claims
with respect to the guilt and penalty phases of
his capital murder trial. Regarding the guilt
phase, Duren contends (A) that he was denied the
effective assistance of counsel because he
presented an invalid defense. Regarding the
penalty phase, Duren asserts that he was denied
the effective assistance of counsel: (B) because
he failed to present mitigating evidence of
alcohol and drug abuse; (C) because he failed to
object to certain prosecutorial remarks; and (D)
because he failed to object to certain jury
instructions. Duren also contends with respect
to the penalty phase: (E) that he was denied
necessary funds to obtain a mental health expert
in violation of Ake v. Oklahoma, 470 U.S. 68,
105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), and (F)
that there was constitutional error because the
judge who actually imposed sentence did not
personally hear all of the evidence.
We address each of the foregoing claims in
order.DISCUSSION
A. Ineffective Assistance
of Counsel at the Guilt Phase for Presenting an
Invalid Defense
Duren claims that his trial
counsel, Roger Appell, ineffectively assisted
him because Appell presented an invalid defense
at trial. Appell argued that Duren did not
intentionally kill Kathleen Bedsole because
Duren was aiming for Charles Leonard when he
shot and killed Bedsole. Under the doctrine of
transferred intent, however, Duren would have
still been guilty of murder whether he intended
to kill Bedsole or Leonard. Therefore, because
the defense was without a basis in law, Duren
contends that proffering it denied him the
effective assistance of counsel. See Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984)(establishing parameters of
ineffective assistance claims).
A claim that a defendant's
counsel was so defective as to mandate habeas
corpus relief from a conviction has two
components. First, the defendant must show that
the counsel's performance was deficient.
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064.
Second, the defendant must demonstrate that the
deficient performance prejudiced the defense. Id.
Both showings are required to make out a claim
for ineffective assistance of counsel under the
Sixth Amendment. Accordingly, if a defendant
cannot satisfy the prejudice prong, the court
need not address the performance prong. Id.
Because Duren cannot show that he was prejudiced
by Appell's presentation of an invalid defense,
we need not undertake a performance analysis.
The Strickland court
described the test for prejudice as follows: "[t]he
defendant must show that there is a reasonable
probability that, but for counsel's
unprofessional errors, the result of the
proceeding would have been different. A
reasonable probability is a probability
sufficient to undermine confidence in the
outcome." 466 U.S. at 694, 104 S.Ct. at 2068.
Duren cannot satisfy the
prejudice prong. The overwhelming evidence
presented at trial establishing his guilt far
outweighs whatever detriment, if any, Duren may
have suffered as a result of his counsel's
defense. Duren confessed twice to the killing.
He led police officers to the crime scene and
even revealed the location of the hidden murder
weapon.
In addition, Charles Leonard,
a victim-eyewitness to the crime, identified
Duren as the gunman only a few hours after the
shooting. Leonard also provided powerful
testimony at trial detailing Duren's murderous
actions. Thus, the evidence of Duren's guilt was
essentially undisputed at trial. The only
factual dispute involved the positioning of
Bedsole and Leonard when Duren fired the pistol.
In light of the overpowering
evidence of Duren's guilt, therefore, we hold
that Duren was not prejudiced by Appell's
argument that Duren intended to kill Leonard but
not Bedsole.
Considering the strength of the prosecution's
case, no reasonable probability existed that the
outcome of the proceeding would have been
different had Appell not argued as he did.
Consequently, Duren's claim of ineffective
assistance at trial fails under the prejudice
prong of Strickland.
B. Ineffective Assistance
of Counsel at Sentencing for Failure to Present
Mitigating Evidence of Alcohol and Drug Abuse
Next Duren claims that he
lacked effective assistance of counsel at the
penalty phase of his capital murder trial
because his attorney failed to present as
mitigating evidence Duren's alleged voluntary
intoxication on the night of the crime and his
alleged history of substance abuse. In order to
make good on this claim, Duren must show that
Appell's failure to explore substance abuse as a
mitigating circumstance constituted a deficient
performance and that he was prejudiced as a
result. Strickland, 466 U.S. at 687, 104 S.Ct.
at 2064. Duren fails on both counts.
From the perspective of
experience, Duren's counsel, Roger Appell, was
"a reasonably competent attorney" under
Strickland. 466 U.S. at 686, 104 S.Ct. at 2064 (citing
McMann v. Richardson, 397 U.S. 759, 770-771, 90
S.Ct. 1441, 1448-49, 25 L.Ed.2d 763 (1970)).
Appell possessed considerable experience as a
criminal defense attorney when he was appointed
to represent Duren. Admitted to the bar in 1976,
Appell had been practicing for eight years at
the time of Duren's trial, with criminal defense
constituting approximately half of his practice.
He had been involved in numerous felony trials
and worked on five capital cases before Duren's
murder trial.
After substantial pre-trial
investigation of Duren's case, Appell concluded
that he would not focus on Duren's substance
abuse. Instead, he decided to call David Duren
and several of his family members
to testify to Duren's "horrible childhood."
In so doing, Appell established that Duren's
mother abandoned him at an early age, his second
stepmother physically abused him, and his third
stepmother resented him. As a result, Duren was
extremely withdrawn from any meaningful family
community as a child, sequestering himself in
his room for days at a time.
Appell thus presented Duren
as a young man who had been warped by mental and
physical abuse suffered as a child. Faced with
the unforgiving facts pointing to Duren's guilt,
Appell's aim was to help the jury "get an
understanding" of David Duren, to expose his
inner turmoil, to offer the jury a window on his
torment. Appell tendered this testimony "not as
a justification," but for the sake of "understanding
and mercy."
Appell's choice to emphasize
Duren's troubled childhood over his alleged
substance abuse was found by the Rule 20 court
to be a "strategic decision." Duren v. Alabama,
No. CC83-0382, slip op. at 7 (Cir. Ct. Jefferson
Cty. July 27, 1989). According to the Rule 20
court, Appell articulated two sound reasons for
not presenting a substance abuse defense: first,
he did not believe that Duren's claim of
intoxication was credible; and second, he
thought such evidence would prejudice the jury.
The Rule 20 court found that
Duren's statements that he was intoxicated from
alcohol and drugs on the night of the murder
were not credible. Considering the complexity of
Duren's crime, the clarity of his confession,
and the testimony of the officers who observed
him that evening, this finding has ample support
in the record. The Rule 20 court also found that
evidence of Duren's drug abuse would have risked
enhancing juror prejudice against Duren, and
would have undercut his image as an innocent
victim of child abuse. Appell's testimony to
this effect and his experience in criminal
trials in Jefferson County provide ample support
for this finding of fact.
Because the Rule 20 court's
finding of fact that a tactical decision was
made draws ample support from the record, it
becomes a question of law for this court as to
whether Appell's decision not to invoke Duren's
substance abuse was reasonable under the
circumstances. Cave v. Singletary, 971 F.2d
1513, 1518 (11th Cir.1992). We readily conclude
that Appell's strategy was reasonable on these
facts.
The mitigating evidence of
voluntary intoxication would have been very weak
in light of the strong evidence that Duren was
not in fact intoxicated on the night of the
murder. We also agree with Appell's reasoning
that evidence of Duren's chronic drug use may
have been viewed by the jury as inconsistent
with the strategy of appealing to the jury for
mercy based on Duren's unfortunate childhood.
Therefore, under all of the circumstances, we
find that Appell's tactical decision was
reasonable and not below the wide range of
performance set out as acceptable in Strickland
v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984).
Moreover, Duren cannot
demonstrate that he was prejudiced by Appell's
failure to present mitigating evidence of
Duren's alleged intoxication on the night in
question. After canvassing the evidence relating
to whether or not Duren might have been impaired
by alcohol or drug abuse, the Rule 20 court
found that Duren was not in fact intoxicated on
the night of the murder. Duren v. State, No.
CC-83-0382, slip. op. at 9-10 (Cir. Ct.
Jefferson Cty. July 27, 1989). Given this
finding of fact, the doctors' testimony at the
Rule 20 hearing-that Duren's capacity to control
his actions on the night of the murder was
substantially impaired because of alcohol and
drug consumption--was virtually destroyed.
The doctors' testimony was
based largely on Duren's own account of the
relevant events. The premise of the doctors'
testimony was that Duren was impaired and
intoxicated on the night in question as a result
of alcohol and drug abuse. When that premise was
stripped away by the findings of fact of the
Rule 20 court, the doctors' testimony was left
with little or no probative value.
Because the doctors'
testimony was factually unsound, there is no
reasonable probability that the result of the
penalty phase would have been different, even if
the suggested evidence of alcohol and drug abuse
had been explored in great detail. A weak
defense is not made strong merely by its
presentation to a jury. Given the frailty of
Duren's mitigating evidence, we cannot conclude
that Duren was prejudiced by his counsel's
failure to present it.
C. Ineffective Assistance
of Counsel at Sentencing for Failure to Object
to the Prosecutor's Inappropriate Comments
Duren claims that the
prosecution made several improper remarks during
its closing argument at the sentencing phase,
that the comments rendered his trial
fundamentally unfair,
and that his counsel was ineffective for failing
to object to the remarks. Duren claims that the
prosecutor, in his closing argument at the
sentencing phase, suggested that the only reason
Duren might have kept Bedsole alive was to use
her sexually, suggested that the victim's
killing had a profound impact on her family, and
argued that the jury would be responsible for
future murders by Duren or others like him if
the jury did not condemn him to die.
We find no impropriety in the
prosecutor's remark concerning the impact on the
victim's family. See Payne v. Tennessee, 501
U.S. 808, 828-31, 111 S.Ct. 2597, 2609-11, 115
L.Ed.2d 720 (1991)(holding such evidence is
constitutionally admissible)(overruling Booth v.
Maryland, 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d
440 (1987), and South Carolina v. Gathers, 490
U.S. 805, 109 S.Ct. 2207, 104 L.Ed.2d 876
(1989)).
With respect to the
prosecutor's argument concerning future murders
by Duren or others, we believe that the jury
reasonably interpreted those remarks as
referring to either specific or general
deterrence, and thus we find no impropriety. See
Brooks v. Kemp, 762 F.2d 1383, 1407 (11th
Cir.1985)(en banc)(finding that arguments based
on special and general deterrence are
appropriate in light of accepted penalogical
justifications for use of death as a punishment).
Thus, the only comment that concerns us is the
suggestion that the evidence gave rise to a
reasonable inference that the only reason Duren
would have spared Bedsole's life was to use her
sexually.
We assume impropriety in this
prosecutorial remark, and consider whether or
not Duren can satisfy the prejudice prong of his
claim of ineffective assistance of counsel on
account of counsel's failure to object. We must
evaluate whether or not there is a reasonable
probability that the result of the sentencing
proceeding would have been different if counsel
had objected. In this evaluation, we weigh the
fact that the evidence against Duren at
sentencing was overwhelming: he confessed twice
to binding and shooting the couple, execution-style.
See Harich v. Wainwright, 813 F.2d 1082, 1095
(11th Cir.1987) (commenting that powerful
eyewitness evidence concerning murder weighs
against finding prejudice), aff'd in pertinent
part, 844 F.2d 1464, 1468-69 (11th Cir.1988) (en
banc).
We also observe that the
sentencing judge admonished the jury to confine
itself to the evidence in recommending sentence.
Finally, we note that the prosecution did not
dwell on the inappropriate comment. See Brooks,
762 F.2d at 1415 (finding that potential
prejudicial effect of undesirable prosecutorial
commentary was minimized by its brevity).
Indeed, in the instant case,
the inappropriate comments were not only brief,
but were belied by the context of the
prosecutor's own statements. The comment was
made as the prosecutor was ridiculing Duren's
story that he intended to kill only Leonard and
that he did not intend to kill Bedsole. The gist
of the prosecutor's argument was that it made no
sense to eliminate only one of two witnesses.
Thus, the context of the prosecutor's statements
indicate that even the prosecutor did not
believe Duren intended to keep Bedsole alive for
any reason.
Under all the circumstances,
we cannot conclude that there is a reasonable
probability that the result of the sentencing
proceeding would have been different if counsel
had objected to the inappropriate prosecutorial
remark.
D. Ineffective Assistance
of Counsel at Sentencing for Failure to Object
to Certain Jury Instructions
Duren further claims that his
counsel's failure to object to the allegedly
defective jury instructions denied him effective
assistance of counsel.
This claim is based upon three alleged mistakes
by the trial court to which Duren argues that
his counsel should have objected: 1) failing to
give a discretionary mercy charge (reminding the
jury of its option to return life without parole);
2) charging the jury that it must recommend
death if it found the aggravating circumstances
outweighed the mitigating ones; and 3)
instructing the jury that its role was advisory
in recommending a sentence. We reject each of
these arguments in turn.
Duren's first assertion-that
his counsel should have insisted on the jury
being instructed concerning its option to return
a sentence of life without parole-fails under
the prejudice prong of Strickland. Duren's
counsel argued persuasively and at length about
mercy, without contradiction by the trial judge
or the prosecutor. Under the circumstances of
the case, the absence of such an instruction or
a general mercy charge does not establish a
reasonable probability that the result of the
sentencing phase would have been different had
such an instruction or charge been given.
Duren's next assertion-that
the second jury instruction listed above had the
effect of improperly mandating a death sentence
and should have been objected to-is also
unpersuasive. Because the jury was instructed to
recommend death only if it found that the
aggravating circumstances outweighed the
mitigating circumstances, we doubt that the
effect of the instruction was to mandate a death
sentence. However, we need not address that
issue because we conclude that this claim also
fails under the prejudice prong of Strickland.
As noted above, defense
counsel was permitted to argue extensively for
mercy at sentencing. Counsel's argument in this
regard went without challenge from either the
prosecutor or the court. The court charged the
jury that any facet of the defendant's character
be considered in mitigation along with any
aspect of the offense. Therefore, the range of
mitigating circumstances available to the jury
was unlimited. Under all of the circumstances,
we cannot conclude that a reasonable probability
exists that the result of the sentencing
proceeding would have been different in absence
of the instruction at issue.
Duren's third assertion--that
Appell failed to object to the trial court's
instruction that the jury's role in returning a
sentence was merely advisory--also fails for
want of prejudice under Strickland. Duren argues
that this instruction violated CALDWELL V.
MISSISSIPPI, 472 U.S. 320, 472 U.S. 320, 105
S.CT. 2633, 86 L.ED.2D 231 (1985),
and thus Appell, as a matter of rudimentary
competence, should have challenged it. We reject
Duren's argument for several reasons.
At Duren's sentencing, the
trial court properly informed the jury that its
role was "advisory" pursuant to Alabama law and
further elaborated upon its function by actually
reading Ala.Code § 13A-5-46(d) (1975). The jury
instruction was entirely consistent with Alabama
law. In outlining the jury's proper sphere, the
court did not mislead the jury, diminish its
importance, or absolve it of responsibility for
its decision. See Harich v. Dugger, 844 F.2d
1464, 1473 (11th Cir.1988)(holding that
informing jury of its "advisory" function does
not violate Caldwell ).
Rather, unlike the
prosecutor's comments in Caldwell, the
instruction given by the trial court in this
court was accurate and in accordance with
Alabama law. Thus, Duren cannot satisfy the
prejudice prong of Strickland, and his
ineffective assistance of counsel claim must
fail.
In sum, there is no
reasonable probability that Appell's failure to
object to any of the three challenged
instructions altered the result of the
sentencing proceeding. Consequently, Duren was
not prejudiced and his claim fails under
Strickland.
E. Denial of Funds for
Psychiatrist in Violation of Ake
Duren next argues that he was
improperly denied funds with which to procure a
psychiatrist and/or a psychologist in violation
of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087,
84 L.Ed.2d 53 (1985). In Ake, the Supreme Court
held that an indigent defendant who shows that
his sanity at the time of the offense will be a
significant factor at trial must have access to
a competent psychiatrist, thus enabling him to
present an effective defense. Ake, 470 U.S. at
83, 105 S.Ct. at 1097. This right emanates from
the Due Process Clause's guarantee of
fundamental fairness. Id. at 83, 105 S.Ct. at
1097.
Before this due process right
is triggered, however, the defendant must show
"a reasonable probability both that an expert
would be of assistance to the defense and that
denial of expert assistance would result in a
fundamentally unfair trial." Moore v. Kemp, 809
F.2d 702, 712 (11th Cir.1987). This includes
demonstrating, as a preliminary matter, "a
substantial basis for the defense." Id. In
short, the trial court should be notified as to
why an expert is necessary to afford the
defendant a fair trial.
Unlike the defendant in Ake,
however, Duren made no such showing to the trial
court in this case. His pre-trial motion
requesting funds for a psychiatrist and/or
psychologist merely listed several statutory
mitigating factors and baldly asserted a need
for the requested medical experts to assist in
determining whether mitigators existed. Neither
in the motion nor at the hearing on the motion
was the judge given any factual support for the
possibility that one or more of such mitigating
circumstances might exist.
We readily conclude that
Duren failed to make the showing required by
Moore. In addition, when the trial court offered
an evaluation by a state psychologist, Duren
rejected this assistance. We cannot conclude
that Duren was denied a fundamentally fair trial
because he was not provided funds to hire a
psychiatrist. His reliance on Ake is therefore
misplaced.
F. The Failure of the
Substitute Judge to Personally Hear All the
Witnesses
Finally, Duren argues that
the sentencing judge's failure to personally
hear all of the evidence violated the
Confrontation Clause. It is worth recounting the
relevant facts. On March 7, 1984, a unanimous
jury found Duren guilty of capital murder.
Pursuant to Ala.Code § 13A-5-46 (1975), a
sentencing hearing before the jury was commenced
the same day.
At the hearing, the State
presented no witnesses, but instead asked the
court to adopt the prior trial record
demonstrating the relevant aggravating
circumstances. The court agreed. Duren called
seven witnesses, including himself, to testify
to his unfortunate childhood in an effort to
establish mitigating circumstances. After
considering all of this evidence, the jury
recommended a sentence of death. Pursuant to
Ala.Code § 13A-5-47, a separate sentencing
hearing was scheduled to take place before the
trial judge, Judge Joseph Jasper, on May 4,
1984.
Before the hearing transpired,
however, Judge Jasper learned that Duren was the
fifth cousin of his deceased wife. Judge Jasper
informed the parties of his wife's distant
relation to Duren. The next day, May 1, he wrote
to the Judicial Inquiry Commission, seeking
counsel concerning his recusal. On May 14, 1984,
Duren's counsel filed a motion for Judge
Jasper's recusal. The Commission wrote back by
letter dated May 28, 1984, advising him that
recusal was unnecessary.
Despite the Commission's
advice, Judge Jasper recused himself pursuant to
Duren's motion, and the case was assigned to
Judge James Garrett for sentencing. Upon
transfer to Judge Garrett, Duren filed a motion
for new trial, or, alternatively, a new jury
sentencing hearing, on the ground that a judge
who has neither heard the evidence himself nor
had the opportunity to observe the demeanor of
the witnesses cannot fix sentence under Alabama
death penalty law. Judge Garrett denied the
motion, explaining that he had read the trial
transcript and familiarized himself with all of
the trial proceedings and each side's witnesses.
He further reasoned that
either side could present whatever witnesses it
wished at the sentencing hearing. Thus, if
either side felt a particular witness's demeanor
was favorable to its case, Judge Garrett invited
it to present that witness before him.
Concluding that this arrangement was fair for
both sides, Judge Garrett held the sentencing
hearing on September 14, 1984.
At the hearing, Duren did
recall almost all of the witnesses that he had
previously presented before the jury; they
testified again to Duren's troubled childhood in
front of Judge Garrett. The State, on the other
hand, called no witnesses, but relied (as it had
in the earlier sentencing hearing before the
jury) on the court's adoption of the trial
transcript. Duren objected to this adoption,
restating the grounds for objection set out in
his motion for new trial-that Judge Garrett had
not heard the evidence himself or observed the
witnesses himself-and thus maintained that Judge
Garrett was constitutionally unequipped to
determine sentence.
In support of his
confrontation argument, Duren cites Proffitt v.
Wainwright, 685 F.2d 1227, 1254 (11th Cir.1982),
for the proposition that the Confrontation
Clause applies to capital sentencing proceedings.
In light of the Clause's applicability, Duren
contends, the State should have been forced to
present its witnesses in person again before
Judge Garrett at sentencing. While Duren's
characterization of Proffitt is correct, we
disagree with him that its holding compels a
finding of constitutional error in this case.
In Proffitt, the defendant's
mental state at the time the offense was
committed was at issue. Id. at 1250. After the
jury had returned a guilty verdict and
recommended a death sentence, the trial judge
suggested that the defendant be examined by two
court appointed psychiatrists before the final
sentence determination. Id. The defendant agreed;
two doctors later examined the defendant and
submitted reports, both finding that the
defendant knew right from wrong when he
committed the offense. Id. At the hearing set
for discussing the reports, however, only one
doctor showed up to testify. Id. Defense counsel
asked the court for the opportunity to
cross-examine the absent doctor. Id. The judge
agreed, stated that the doctor's testimony would
later be made part of the record, but proceeded
to sentence the defendant without it. Id at
1255. Thus, the judge considered the absent
doctor's report in his sentencing, and the
defendant was denied an opportunity to
cross-examine the adverse expert witness before
sentence was imposed. Id.
The instant case is
fundamentally different than Proffitt. Here,
Duren was permitted to fully cross-examine all
of the State's witnesses during the guilt phase
of the trial. The State presented no new
witnesses at the sentencing hearing before Judge
Garrett. Thus, unlike the defendant in Proffitt,
Duren was not denied the cross-examination of a
single witness, much less one as critical as a
psychiatrist devastating an insanity defense.
In addition, Judge Garrett expressly conferred on
Duren the unlimited right to call any witnesses
he desired, including those who had earlier
testified for the State. If Duren had felt it
essential for the sentencing judge to observe
the State's witnesses for himself, then Duren
could have certainly called them before Judge
Garrett. Duren's full cross-examination of the
State's witnesses at trial and his opportunity
to call any witnesses he wished at sentencing
persuade us that there was no Sixth Amendment
error.
Moreover, according to the
Supreme Court, the Confrontation Clause is
designed, through the vehicle of cross-examination,
"to promote reliability in the truth-finding
functions of a criminal trial." Kentucky v.
Stincer, 482 U.S. 730, 107 S.Ct. 2658, 96 L.Ed.2d
631 (1987); see also Proffitt, 685 F.2d at 1254
(stressing reliability of factfinding underlying
capital sentencing).
We have no doubt that the
evidence examined by Judge Garrett before
imposing sentence was sufficiently reliable for
the purposes of the Sixth Amendment. As
mentioned earlier, Duren had fully cross-examined
the State's witnesses, and such examination was
clearly reflected in the record reviewed by
Judge Garrett.
In addition, Judge Garrett
informed Duren's counsel three weeks before the
sentencing hearing that Duren would be permitted
to present any witnesses he wished at sentencing.
In light of the capital nature of this case,
Duren had, at all times, a very strong motive to
fully develop the record. Given this powerful
motive, the complete cross-examination he was
permitted at trial, and his unlimited option to
present any witnesses he chose at sentencing, we
cannot conclude that Duren was denied any right
under the Confrontation Clause to be sentenced
on the basis of reliable information.
CONCLUSION
For the foregoing reasons,
the judgment of the district court denying
relief is AFFIRMED.
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