Duren v. Hopper

United States Court of Appeals,

Eleventh Circuit.

No. 97-6650.

David Ray DUREN, Petitioner-Appellant,

v.

Joe HOPPER, Commissioner of Alabama Department of Corrections, Respondent-Appellee.

Nov. 20, 1998.

Appeal from the United States District Court for the Northern District of Alabama. (No. CV-96-PT-
2476-S), Robert B. Propst, Judge.

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,1 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

1
Dr. Robert Brissie, the State's forensic pathologist, testified that Bedsole was not
immediately killed by the small caliber bullet which penetrated the base of her skull. Instead, in
his opinion, she was rendered paralyzed from the neck down, resulting in her asphyxiation.

2
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

3
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 202

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

2
Rule 20 has since been finalized as Rule 32 of the Alabama Rules of Criminal Procedure.

4
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.3 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.

3
Other claims asserted by Duren on appeal, which are not addressed in this opinion, are
rejected without need for discussion.

5
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.4 Considering

the strength of the prosecution's case, no reasonable probability existed that the outcome of the

4
Duren also contends the court's instructions to the jury regarding the doctrine of transferred
intent converted the defense's argument—that Duren intended to shoot Leonard rather than
Bedsole—into one of sure guilt. It should be noted, however, that the court merely read the
indictment to the jury (charging Duren with the capital murder of Bedsole) and explained
generally the doctrine of transferred intent. The court did not specifically highlight the
connection between the jury charge and Duren's defense. Moreover, even the prosecution did
not inordinately devastate the defense, but instead argued briefly that murder was an intentional
killing, whether or not it was the intended victim who perished. At no time was the defense
presented by Appell emphasized as one equated with certain guilt.

6
proceeding would have been different had Appell not argued as he did.5 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

5
Because the evidence presented against Duren at trial was overwhelming, all other
arguments asserting ineffective assistance of counsel at the guilt phase of the trial are without
merit and warrant no discussion.

7
members6 to testify to Duren's "horrible childhood."7 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."8

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

6
These included: Mary Jo Detlefsen (great aunt); James Duren (grandfather); Shelby Duren
(aunt); and Raymond Duren (father).
7
From Appell's closing Argument at trial: "I believe David had a horrible childhood, not an
excuse, not a justification, but he had the kind of childhood that none of us would want our
children to have." (R-658).
8
Closing Argument of Appell. (R-658).

8
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

9
the night of the murder was substantially impaired because of alcohol and drug consumption—was

virtually destroyed.9

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,10 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

9
When asked to corroborate their assumption that Duren was indeed intoxicated, both doctors
referred the court to what Duren had told them himself, as well as the testimony of Teresa
Hardigan, whom the Rule 20 court expressly found to be unreliable.
10
Duren's claim on the merits-i.e., that the improper remarks rendered his trial fundamentally
unfair-is procedurally barred because Duren did not raise this due process claim at trial or on
appeal. Duren has failed to demonstrate cause and prejudice in order to overcome this
procedural default.

10
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.11

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).12 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

11
Duren also argues that the prosecutor suggested that the jury's imposition of a death
sentence could substitute for, and thus would be analogous to, actually preventing the crime,
which of course any jury would have wanted to do. However, we do not believe that a
reasonable juror could so interpret the prosecutor's argument.
12
Cert. granted, Kemp v. Brooks, 478 U.S. 1016, 106 S.Ct. 3325, 92 L.Ed.2d 732
(1986)(vacating Brooks and remanding for further consideration in light of Rose v. Clark, 478
U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)), reinstated on remand, Brooks v. Kemp, 809
F.2d 700 (11th Cir.1987).

11
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)(holding that graphic nature of murder weighs against finding of

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

12
 Duren further claims that his counsel's failure to object to the allegedly defective jury

instructions denied him effective assistance of counsel.13 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.

13
Duren also challenges the allegedly defective jury instructions on the merits. However,
because the jury instructions were not challenged on appeal in state court, this claim is
procedurally barred, and Duren has failed to demonstrate the requisite cause and prejudice to
surmount such default. Attempting to avoid procedural bar with respect to the instruction that
the jury's role was advisory, Duren argues that the Court of Criminal Appeals, 590 So.2d at 367-
68, ruled on the merits of this challenge to the jury instructions. We disagree. We believe that
the court addressed the claim only in the context of a claim of ineffective assistance of counsel
for failing to object to the instructions. This was not a ruling on the substantive claim which
would avoid the procedural bar. See Levasseur v. Pepe, 70 F.3d 187, 192 (1st Cir.1995)(finding
that prior court's treatment of petitioner's underlying constitutional claims in the context of ruling
on his ineffective assistance claim did not preserve constitutional claims for review on collateral
attack).

13
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,14472 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 §

14
In Caldwell, the United States Supreme Court held that certain comments made by the
prosecutor to the jury to the effect that the jury did not have final responsibility with respect to
the imposition of the death penalty violated the defendant's Eighth Amendment rights. Id. at
341, 105 S.Ct. at 2646. The prosecutor's statements were "inaccurate [and] ... misleading" as to
the jury's function and "fundamentally at odds with the role that a capital sentencer must
perform." Id. at 337, 105 S.Ct. at 2643.

14
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 ).15 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.

15
This court in Harich held that "a Caldwell violation should include some affirmative
misstatement or misconduct that misleads the jury as to its role in the sentencing process."
Harich v. Dugger, 844 F.2d 1464, 1473 (11th Cir.1988). There was no such affirmative
misinformation in this case.

15
 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

16
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

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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.

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 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

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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.16

16
All other arguments are without merit and warrant no discussion.

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