Appeal from Limestone Circuit Court. (CC-09-418).
APPLICATION FOR REHEARING OVERRULED; OPINION OF AUGUST 30, 2013, WITHDRAWN AND OPINION SUBSTITUTED; REVERSED AND REMANDED.
For Appellant: Michael C. Sizemore, Athens.
For Appellee: Luther Strange, atty. gen., and Robin D. Scales, asst. atty. gen.
Windom, P.J., and Welch
and Burke, JJ., concur. Kellum, J., concurs in the result.
On Application for Rehearing
This Court's opinion of August 30, 2013, is withdrawn, and the following is substituted therefor.
On September 12, 2012, Keith Daniel George was convicted of the murder of Russell Kent George, see § 13A-6-2, Ala. Code 1975. The trial court sentenced Keith to 50 years' imprisonment. We reverse and remand.
Keith asserted that he acted in self-defense and, at trial, the State attempted to present evidence overcoming Keith's self-defense claim. The State's primary witnesses were Kalane Culley, who was Russell's girlfriend at the time he was killed, and James Evans, the owner of the residence where the altercation between Keith and Russell began on March 15, 2009. Evans testified that he and some of his friends had been fishing on that day and had gone back to Evans's residence to " grill out and all that." Evans testified that he was friends with Keith and Russell and that both men stopped by his residence to visit on March 15, 2009. Evans testified that " [e]verybody was having fun [and] talking" and that he did not notice Keith and Russell having " any kind of dispute or issues" inside the residence. (R. 97-98.)
Testimony from Evans and Culley indicated that, once Russell and Keith left Evans's residence, Keith attempted to prevent Russell, who was drunk, from driving and that Keith became an unprovoked aggressor. The defense, however, proffered the testimony of Keith and Jassen Martin, a long-time friend of Keith. Keith testified that he followed Russell to his car in an attempt to prevent Russell, who was drunk, from driving. Keith testified that Russell quickly became belligerent when Keith attempted to convince him not to drive; according to Keith, Russell, who had gotten into his truck, responded " [h]ell no" when Keith asked him not to drive and " came out of [the] truck flogging [Keith]." (R. 556.) This " flogging," Keith testified, resulted in Keith being struck in the temporal
region of his head. (R. 558.) Keith testified that, at this point, he was stunned by the blow, and he spun around to grab a stick out of the bed of his truck. Keith stated that he threw the stick down onto the ground between the two, thinking that the threatened use of the stick would rein in Russell's aggression. (R. 566.) Keith then testified that, instead, Russell picked up the stick and began hitting Keith with it. (R. 567.) According to Keith, he then maneuvered toward his driver-side door, opened the door, and retrieved his pistol from the center console of the truck.
Keith testified that he produced the pistol in an attempt to ward off Russell's attacks. (R. 569.) With pistol in hand, Keith walked backward toward the rear of the trucks and the edge of the property; Russell, however, continued to follow Keith, swinging the stick at him and landing some blows. Because of Russell's continued aggression, Keith fired an initial shot. (R. 576.) Although the evidence indicated that Russell was shot three times, Keith testified that he remembered firing only one shot.
Martin testified that he was inside the residence when the initial altercation started but that he exited the residence as soon as Keith's son informed him that Keith and Russell were fighting. (R. 451.) Upon exiting the residence, Martin witnessed Russell swinging the stick at Keith and Keith firing a shot at Russell. By this time, both Keith and Russell had made their way out of Evans's yard and into a lot about 10 feet on the other side of the road. (R. 452-53.) According to Martin's testimony, Russell continued to " come after" Keith, and the two were advancing in a " half-moon" pattern across the lot and back toward the road. (R. 458.)
When Martin was approximately two to three feet from Russell, he saw Keith fire the final shot. (R. 458.) Martin testified that Keith was lying down when he fired the final shot. (R. 459.) Keith's final shot caused Russell to drop the stick and fall. Martin caught Russell, helped him to the ground, and began administering CPR. Martin continued to render aid until first responders arrived. Emergency services transported Russell from the scene to Huntsville Hospital, where he later died as a result of the gunshot wounds. (R. 379-80.)
When it instructed the jury on self-defense, the trial court stated, in relevant part:
" The defendant is not justified in using deadly physical force upon another person and cannot prevail on the issue of self-defense if it reasonably appears or the defendant knows that he can avoid the necessity of using ...