Appeal from Mobile Circuit Court. (CC-93-1158; CC-93-1159). Robert Kendall, TRIAL JUDGE. This Opinion Substituted by the Court for Withdrawn Opinion of July 29, 1994, Previously .
Certiorari Denied March 3, 1995. Released for Publication July 5, 1995.
The opinion of the court was delivered by: Taylor
ON APPLICATION FOR REHEARING
This court's opionion of July 29, 1994, is hereby withdrawn and the following opinion substituted therefor.
The appellant, Bobby Lee Bates, was convicted of two counts of assault in the first degree, a violation of § 13A-6-20, Code of Alabama. *fn1 He was sentenced to 20 years' incarceration on each count, those sentences to be served consecutively.
The state's evidence tended to show that on February 20, 1993, during Mardi Gras festivities in Mobile an encounter occurred between Bates, his girlfriend, Marcus Russell, and JaMarcus Maddox, who was accompanied by other young men.
Mr. Jerome Traywick, an eyewitness to the events, testified that he saw Maddox touch the shoulder of a girl walking with the appellant, twice. The first time Maddox touched the girl, Bates continued to walk, but the second time, Bates turned around and asked Maddox, "What's up?" Mr. Traywick testified that Bates then turned around and pulled out a gun and started shooting. Mr. Traywick heard three shots and saw that Russell had been shot in the leg and that Maddox had been shot in the buttocks.
Maddox testified that at the time of the incident he did not know either the appellant or the girl. He said that he was standing near a concession stand when one of his friends began to argue with the girl. He said that he got involved in the dispute and that he called the girl a "bitch" twice and told her that she did not look good. According to Maddox, Bates told him not to call his girlfriend a bitch and they got into a shoving match. Maddox said that Bates then pulled a gun and shot him while he was running.
Officer Douglas Huntley of the intelligence division of the Mobile Police Department and three other officers, who were in the area when the incident occurred, also heard gunshots and noticed that Russell had been shot in the leg. The officers saw that Russell's gaze was fixed on Bates and Huntley began to pursue Bates who was running on Government Street. Another officer also began to pursue Bates as he turned onto Warren Street.
Officer Huntley shouted, "Stop, police" several times. Huntley finally caught Bates, grabbed his arm, and shouted "Stop, police." Bates pulled away, saying that he had not done anything. Huntley grabbed Bates again and told him to show his hands and get down on the ground and told him that he did not have anything to worry about if he did not do anything.
Officer Darryl Williams testified that he arrived and grabbed Bates's shoulders and tried to throw him down on the ground. Bates ducked and spun around, landing against Williams' car. Bates then shot Officer Williams and Officer Huntley and began to run down Warren Street. Another officer witnessed both shootings and pursued Bates, yelling "Police." Bates continued to run.
Several uniformed police officers set up a barricade. As the appellant approached the barricade, an officer yelled, "Police officer, drop the dam gun or I will shoot." Bates darted between two cars and then threw down his weapon.
The appellant contends that he was denied effective assistance of counsel because, he says, his counsel had a conflict of interest in that he was representing one of the victims in the case.
At trial, the state moved to hold a hearing to determine whether an actual conflict of interest existed. The record ...