Released for Publication July 22, 2015.
Appeal from Montgomery Circuit Court. (CC-13-1127). Eugene W. Reese, Trial Judge.
REVERSED AND REMANDED.
For Appellant: Joshua Steven Segall, Montgomery.
For Appellee: Luther Strange, atty. gen., and Laura I. Cuthbert, asst. atty. gen.
WELCH, Judge. Windom, P.J., and Kellum, J., concur. Burke, J., concurs in the result. Joiner, J., concurs in part and dissents in part, with opinion.
Ellis Andrel Diggs was convicted of the intentional murder of Garry Blackwell, see § 13A-6-2(a)(1), Ala. Code 1975. Diggs was sentenced as a habitual felon to life in prison without the possibility of parole. On appeal, Diggs contends that the trial court committed reversible error when it refused to instruct the jury on self-defense and provocation manslaughter.
Diggs contends that the evidence presented during his trial supported the giving of a jury instruction on self-defense.
On the night of February 3, 2012, Blackwell was using an abandoned house on Haardt Street in Montgomery for the purpose of hosting, for paying customers, an entertainment venue providing female dancers, strippers, and prostitutes. This venue was called " The Cave." (R. 279.) Chasity Bowen was Diggs's longtime girlfriend. She worked for Blackwell as a dancer and stripper. According to Bowen, Blackwell had not been acting like himself. She claimed that he had recently gotten into an altercation with another dancer who worked for him, and on the morning of February 4 he had consumed more alcohol than was normal for him and he was intoxicated or at least, according to Bowen, over his limit. At approximately 4:00 a.m. on the morning of February 4, 2014, Bowen and Blackwell got into a dispute that escalated into foul language, spitting on one another, Blackwell's delivering a glancing blow across Bowen's cheek, and ultimately Blackwell's lifting Bowen by her waist and carrying her from inside The Cave into the yard. Bowen testified that, after being removed from The Cave, she told Blackwell that " you done fucked up. ... I got a boyfriend that's going to fuck you up." (R. 285.) According to Bowen, Blackwell responded, " I don't give a fuck about your boyfriend. I done played football. ... You think I'm worried about a simple basic nigger?" (R. 285.) Bowen testified that Blackwell further stated, " 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.) Bowen testified that she got a ride home where she woke Diggs from his sleep and told him what Blackwell had done. Bowen testified that she wanted Diggs to confront Blackwell about the way he was " acting out," but she did not want Blackwell to be killed. Bowen testified that Diggs stated, " Blackwell fucked up" and he and his brother, Eric Johnson, left. (R. 287.) When Diggs returned, he told Bowen what had happened at The Cave concerning his shooting Blackwell.
Diggs testified on his own behalf as follows. Chasity Bowen had been Diggs's girlfriend for five or six years and Diggs considered her to be his wife. He also knew and accepted that Bowen worked for Blackwell as a dancer and stripper. Diggs knew Blackwell because Bowen worked for Blackwell and because about eight months earlier, Blackwell and Blackwell's two young daughters had lived with Bowen during a period when Diggs was in jail. Diggs stated that he was not happy about that situation, but, according to Diggs, any differences he and Blackwell may have had about Blackwell's living with Bowen had been resolved through discussion and based on their mutual respect for the one another. Ultimately, following Diggs's release from jail, Blackwell voluntarily moved out of Bowen's residence. Diggs testified that he had not had any problem with Blackwell from the time Blackwell moved out of Bowen's house until the night Blackwell died.
Diggs testified that Bowen was known to tell a lie and to exaggerate. When she woke him up in the early morning of February 4, 2012, she was hysterical and saying that Blackwell had " put his hand on [her]." (R. 380.) She did have some swelling on her face. Diggs asserted that he did not go to The Cave intending to shoot Blackwell. He claimed that he intended to go to The Cave and speak to
Blackwell and find out if what Bowen said was true. According to Diggs, if it was true he intended to tell Blackwell " to stay away from [Bowen], don't call her no more, it is over with, y'all ain't going to have no more dealings" and that if Blackwell ever put his hands on Bowen again ...