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Dennis v. State

Alabama Court of Criminal Appeals

August 16, 2019

Darryl Anthony Dennis
v.
State of Alabama

          Appeal from Mobile Circuit Court (CC-95-3347.67; CC-95-3348.67)

         ON RETURN TO REMAND [1]

          COLE, JUDGE.

         Darryl Anthony Dennis appeals the circuit court's summary dismissal of his eighth Rule 32, Ala. R. Crim. P., petition for postconviction relief. We affirm.

         Facts and Procedural History

         In 1995, Dennis was charged with one count of first-degree rape, see § 13A-6-61, Ala. Code 1975, and one count of first-degree burglary, see § 13A-7-5, Ala. Code 1975. This Court, in an unpublished memorandum affirming those convictions, summarized the State's evidence at Dennis's trial as follows:

"[O]n August 19, 1995, the victim left her apartment unlocked while she showered. The victim did this because she was expecting the arrival of a girlfriend, and she did not want her friend to have to wait outside if she arrived before the victim got out of the shower.
"When the victim got out of the shower and walked out of the bathroom, she discovered [Dennis] standing in her bedroom. [Dennis] pulled the victim onto the bed, raped her, and forced her to perform oral sex, before leaving the apartment. After [Dennis] left her apartment, the victim called 911 and reported the incident to law enforcement officials. While the victim remained in her bathroom, her girlfriend arrived, followed by the police. The victim put on a pair of shorts and a top, and was taken to the hospital for treatment.
"[Dennis] contended that he had encountered the victim earlier in the day and had sexually propositioned her. According to [Dennis], the victim invited him into her apartment, and agreed to engage in consensual sexual intercourse with him for money. [Dennis] stated that the victim became upset when she realized he had not used a condom during intercourse. She then ran into the bathroom and slammed the door. He left the apartment while she was still in the bathroom.
"At trial, the parties entered into a stipulation that the DNA from the semen on the victim's shorts matched [Dennis's] DNA."

Dennis v. State (No. CR-95-1699, Oct. 31, 1997), 727 So.2d 176 (Ala.Crim.App.1997) (table). Based on this evidence, the jury found Dennis guilty as charged, and the circuit court sentenced Dennis to 35 years in prison for each of his convictions. This Court affirmed Dennis's convictions and sentences in an unpublished memorandum and issued a certificate of judgment on May 29, 1998.

         Since then, including the petition underlying this appeal, Dennis has filed eight Rule 32 petitions challenging his convictions and sentences. In each of those petitions, Dennis alleged that, during jury deliberations, the trial judge entered the jury-deliberation room, removed a newspaper from that room, and admonished the jury without either Dennis or his counsel being present.[2] Although Dennis's claims regarding the trial judges's alleged conduct have taken various forms over his eight petitions (e.g., a violation of his right to be present and a denial of his right to counsel), each claim has been rooted in those basic allegations.

         Starting with his first petition, which Dennis filed on May 26, 2000, Dennis alleged that his right to be present at all stages of his trial was violated because, he said, while the jury was deliberating and while "neither [Dennis] nor his lawyer were present, "

"it appears that the Court entered the jury room after speaking with one of the prosecutors (Affidavit of Nicole Parker, attached). After that conversation, the same witness reports that the Court confiscated a newspaper from one of the jurors[, which] ... contained an article about this case. The Court's conversations with the jury are not recorded in the transcript of the trial."

(Record in CR-00-0912, C. 23.) But the judge who presided over Dennis's trial also presided over Dennis's first Rule 32 petition and, after holding a hearing on Dennis's petition, denied Dennis's claim that "[h]is right to be present at all stages of the proceedings was violated when the court confiscated a newspaper from one of the jurors prior to the arrival of [Dennis] and his counsel." (Record in CR-00-0912, C. 40.) In its order, the circuit court concluded, in part, that, "as this court stated at length at the hearing on the Rule 32 motion, it has always been the practice of this court to conduct all proceedings in the defendant's presence. No witness was offered at the hearing on the Rule 32 motion." (Record in CR-00-0912, C. 40.)

         After the circuit court denied Dennis's petition, Dennis filed a "motion to amend," in which he argued that he "was denied his Sixth Amendment right to counsel during the trial court's off-the-record confiscation of a newspaper from the jury." (Record in CR-00-0912, C. 43.) To support his claim, Dennis attached to his amendment a letter purportedly authored by James Brandyburg (one of the assistant district attorneys who prosecuted Dennis), in which Brandyburg explained:

"The trial judge was advised by one of the attorneys that a juror was observed entering the 'open' courtroom with a newspaper. My recollection of this incident is that all the attorneys were present when the trial judge promptly removed the newspaper. Although I do not recall who informed the judge, or the specifics on how the newspaper was removed, it is obvious that based on [Dennis's] claim that I was not the only person present privy to this incident."

(Record in CR-00-0912, C. 54-55.) The circuit court did not rule on Dennis's motion. Dennis appealed.

         On appeal, this Court affirmed by unpublished memorandum the circuit court's denial of Dennis's petition, in which Dennis claimed that the trial court had entered the jury room, confiscated a newspaper, and admonished the jury without Dennis or his counsel being present. See Dennis v. State (No. CR-00-0912, Aug. 24, 2001), 837 So.2d 888 (Ala.Crim.App.2001) (table).

         On February 13, 2001, Dennis filed his second Rule 32 petition. In that petition, Dennis alleged that he was denied the right to counsel during a critical stage of his trial when "the trial court entered the jurors' deliberating room and confiscated a Mobile Press Newspaper from the jurors with information concerning [Dennis's] trial. This incident occurred off-the-record and was not recorded in the court reporter's record on direct appeal." (Record in CR-01-1480, C. 43.) To support his allegation, Dennis again cited the Brandyburg letter. (Record in CR-01-1480, C. 43.)

         In response, the State alleged that, because Dennis's first petition "was addressed on its merits," and because Dennis's claim about the circuit court's confiscating a newspaper was the same as, or similar to, the claim Dennis raised in his first petition, Dennis's petition was a successive petition under Rule 32.2(b), Ala. R. Crim. P. (Record in CR-01-1480, C. 53-57.) The circuit court agreed with the State and summarily dismissed Dennis's claim as successive under Rule 32.2(b), Ala. R. Crim. P. (Record in CR-01-1480, C. 84-87.) Dennis appealed, and this Court affirmed the circuit court's decision in an unpublished memorandum. See Dennis v. State (No. CR-01-1480, Sept. 20, 2002), 868 So.2d 488 (Ala.Crim.App.2002) (table).

         Thereafter, Dennis raised the same denial-of-counsel claim in his third Rule 32 petition. (Record in CR-02-0855, C. 47-49.) The circuit court again summarily dismissed that claim, Dennis again appealed, and this Court again affirmed the circuit court's judgment by an unpublished memorandum. In that unpublished memorandum, this Court held:

"[Dennis] argues that he was denied counsel during a critical stage of his trial. Specifically, he contends that, during the jury's deliberations and outside the presence of his counsel, the trial court entered the jury deliberation room and removed a newspaper that contained an article about the trial. This Court addressed the merits of and rejected the same or a similar claim on appeal from the dismissal of [Dennis's] second Rule 32 petition. Therefore, that claim is precluded as successive. See Rule 32.2(b), Ala. R. Crim. P."

(Emphasis added.) Dennis v. State (No. CR-02-0855, Apr. 18, 2003), 880 So.2d 513 (Ala.Crim.App.2003) (table).

         Undeterred by the circuit court's previous decisions and this Court's affirmances of those decisions, Dennis again raised the same denial-of-counsel claim in his fourth and fifth Rule 32 petitions. (See Record in CR-05-2105, C. 50, and in CR-09-0419, C. 57.) The circuit court summarily dismissed those petitions, Dennis appealed, and this Court affirmed those decisions by unpublished memorandums. See Dennis v. State (No. CR-05-2105, Jan. 12, 2007), 4 So.3d 588 (Ala.Crim.App.2007) (table); Dennis v. State (No. CR-09-0419, June 18, 2010), 77 So.3d 629 (Ala.Crim.App.2010) (table).

         About three years after this Court affirmed the summary dismissal of Dennis's fifth Rule 32 petition, Dennis filed his sixth Rule 32 petition. In that petition, Dennis again reasserted his denial-of-counsel claim. Dennis also raised a slight variation of that claim, alleging that his denial-of-counsel claim "was previously denied due to the State's fraud on the court." (Record in CR-13-0324, C. 46.) According to Dennis, the alleged fraud centered on the State's use of the Brandyburg letter, claiming that the State "knowingly misrepresented" the statement in which "[Brandyburg] recalls all attorneys being present during the ex parte jury misconduct instruction" because, Dennis asserts, the statement "was referring only to all attorneys representing the State" being present--not Dennis's counsel. (Record in CR-13-0324, C. 46.) The circuit court rejected both claims. Dennis appealed, and this Court again affirmed the circuit court, holding as follows in its unpublished memorandum:

"Dennis's claim that the trial court was without jurisdiction to render judgment or impose his sentences because he was denied his Sixth Amendment right to counsel during alleged ex parte jury instructions given by the trial court is procedurally barred by Rule 32.2(b), Ala. R. Crim. P., because this petition is successive and this claim, or a variant thereof, has been raised and addressed in previous petitions. See Dennis v. State, (CR-01-1480) 868 So.2d 488 (Ala.Crim.App.2002) (table); Dennis v. State, (CR-02-0855) 880 So.2d 513 (Ala.Crim.App.2003) (table); Dennis v. State, (CR-05-2105) 4 So.3d 588 (Ala.Crim.App.2007) (table); Dennis v. State, (CR-09-0419) 77 So.3d 629 (Ala.Crim.App.2010) (table). Dennis argues, though, that this claim is not successive because it is a jurisdictional claim that has not been addressed on the merits. Contrary to Dennis's assertion, this claim has been addressed on its merits. See Dennis, (CR-01-1480) 868 So.2d 488 ('Although dismissed by the trial court as ...

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