Released for Publication July 22, 2015.
Appeal from Montgomery Circuit Court. (CC-13-919). Eugene W. Reese, Trial Judge.
REVERSED AND REMANDED.
For Appellant: Emmett W. Hampton, Montgomery; and Amanda Staton Johnston, Prattville.
For Appellee: Luther Strange, atty. gen., and Jack W. Willis, asst. atty. gen.
KELLUM, Judge. Windom, P.J., and Welch, J., concur. Burke, J., concurs in the result. Joiner, J., concurs in part; dissents in part, with opinion.
The appellant, Eric Devon Johnson, appeals his conviction for murder, see § 13A-6-2, Ala. Code 1975. The circuit court sentenced Johnson to life imprisonment and ordered him to pay $50 to the crime victims compensation fund, $8,617.43 in restitution, and court costs.
Johnson and his brother, Ellis Andrel Diggs, were tried jointly for the murder of Garry Blackwell. The record indicates the following pertinent facts. On February 4, 2012, Blackwell was operating an unlicensed club out of a house in Montgomery called " The Cave." (R. 279.) At this club, women engaged in erotic dancing (i.e., " stripping" ), and they also engaged in prostitution. Chasity Bowen, one of Blackwell's dancers, had met Blackwell the previous year through a mutual friend and had grown close to Blackwell.
At approximately 4:00 a.m. on the morning of February 4, 2012, Bowen was preparing to leave after working at the club; however, her keys and other belongings were in the " VIP" room with one of the prostitutes and a customer. Blackwell refused to allow Bowen to enter the room to retrieve her belongings, and the two got into an altercation. Blackwell demanded that Bowen leave the club and picked her up and carried her outside after she refused to leave on her own. Once outside, Bowen told Blackwell that she had " a boyfriend that's going to fuck [him] up." (R. 285.) Bowen testified that Blackwell responded saying, " I don't give a fuck who you call and what they bring, because when they made one gun, they made more. ... [I]f they come up here and think they are going to control and do this and do that, [I] will bury them." (R. 298.) Others who witnessed the incident took Bowen's threat seriously; however, Blackwell laughed it off and said that " [i]f it was his time, it was his time to go." (R. 205.)
Bowen arrived home very early in the morning while everyone in the house was still asleep. Bowen testified that she woke up Diggs and told him that Blackwell put his hands on her, hit her in the face, and threw her out of the club. Diggs responded that Blackwell had " fucked up," got dressed, then woke up Johnson and a few other people who were sleeping in the house. (R. 288.) Diggs, Johnson, and another man left the house and went to The Cave to confront Blackwell.
Johnson and Diggs arrived at The Cave, and Diggs asked to see Blackwell. Sheena Bullock, a dancer at The Cave, was standing beside Blackwell when Johnson and Diggs arrived. According to Bullock, Blackwell and Diggs argued with each other. Bullock testified that Johnson stood back and said nothing. Bullock testified that she went inside to warn other people after she saw an impression of a pistol in the pouch of Johnson's sweatshirt.
Diggs confronted Blackwell and asked what had happened between Blackwell and Bowen; Johnson continued to stand back and say nothing. As Blackwell tried to explain what had happened earlier, Diggs said " enough of this shit." (R. 223.) Charles Lewis and Daryl Ball were at the club that evening and saw Diggs reach into the waistband of his pants and pull out a pistol. Lewis testified that Diggs fired several shots. From ...