IN THE DISTRICT COURT OF LEE COUNTY, ALABAMA CRIMINAL DIVISION

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1 ELECTRONICALLY FILED 6/25/2012 4:00 PM DC CIRCUIT COURT OF LEE COUNTY, ALABAMA CORINNE T. HURST, CLERK IN THE DISTRICT COURT OF LEE COUNTY, ALABAMA CRIMINAL DIVISION STATE OF ALABAMA, * * PLAINTIFF, * CASE NOS. * DC V. * DC * DC LEONARD, DESMONTE DESMONTEZ, * DC * DC DEFENDANT. * * MOTION TO ALLOW THE DEFENDANT TO VIEW THE SCENE OF THE CRIME WITH HIS ATTORNEYS COMES NOW, defendant Desmonte Leonard, by and through his attorneys of record, and respectfully moves this Honorable Court pursuant to the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, the Alabama Constitution, and Alabama law, for an Order requiring that law enforcement officials transport defendant to view the crime scene with his attorneys, and allowing them to discuss the case in a manner whereby the attorney client privilege is preserved. Defendant submits the following in support of this motion: 1. In order to provide effective assistance of counsel as required under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Strickland v. Washington, 466 U.S. 668 (1984), it is necessary that defense 1

2 counsel view the crime scene and the locations where defendant was alleged to have committed the crimes charged. It is necessary that defendant be present for the viewing. Defendant is unable to be present without a court order because he is being detained in the Montgomery County Detention Center without bond. 2. The facts of this case are complicated. Defendant s attorneys need to take pictures, take measurements, or otherwise properly investigate the scene of the alleged crime with defendant s assistance. The State has, through its agents, viewed the crime scene firsthand with all the evidence intact, taken pictures, measurements, and otherwise conducted any and all tests they have deemed appropriate under the circumstances. 3. To deny Defendant the right to travel with his attorneys to view the scene of the crime would amount to a denial of due process of law and effective assistance of counsel as guaranteed by the United States and Alabama Constitutions. 4. Defendant is charged with a capital crime. The possibility that a death sentence may be imposed on defendant should he be convicted in this case implicates important state 2

3 and federal constitutional concerns that require special attention by the Court, the prosecutor and everyone else involved in these proceedings. Therefore, it is in the interest of justice to modify restrictions or requirements that a court would ordinarily impose in non-capitol cases. See Eddings v. Oklahoma, 455 U.S. 104, 117 (1982) (O'Connor J. concurring). As a matter of substantive constitutional law, the possibility that death may be imposed as a criminal sanction is fundamentally and qualitatively different from every other punishment meted out by a state. It is different substantively from life in prison; it is different substantively from life in prison without the possibility of parole. Indeed, death, because of its severity and finality, occupies a constitutional classification that is unique unto itself. The Constitution requires a reliability in capital cases that has no parallel in noncapital cases. See generally: Woodson v. North Carolina, 428 U.S. 280 (1976). In other words potential death penalty cases are different and should be conducted with heightened care. To allow Defendant to view the scene as requested would not prejudice the State's case in any manner and would only serve to promote a fair and impartial trial. 3

4 WHEREFORE THE PREMISES CONSIDRERED, defendant Desmonte Leonard respectfully requests this Court: a. Enter an Order requiring that his custodian transport him from the Montgomery County Detention Center to view the crime scene with his attorneys, and return him upon conclusion. Respectfully submitted this the 25th day of June s/jeffery C. Duffey Jeffery C. Duffey (DUF003) Attorney for Defendant Desmonte Leonard Law Office of: Jeffery C. Duffey 600 South McDonough Street Montgomery, Al Telephone: Fax: Of Counsel: Susan G. James (JAM012) Attorney for Defendant 600 South McDonough Street Montgomery, Al Telephone: Fax: CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing document upon: Robert T. Treese III, Lee County 4

5 District Attorney, 2311 Gateway Dr # 111, Opelika, AL th , by AlaFile E-Notice on this the 25 day of June, s/jeffery C. Duffey 5