Amended April 14, 2016.
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
APPEALS. (Montgomery Circuit Court, CC-10-597; Court of
Criminal Appeals, CR-11-0823).
Bolin, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ.,
concur. Moore, C.J., dissents.
QUASHED. NO OPINION.
Chief Justice (dissenting).
Nikia Gaston was convicted of felony murder, see §
13A-6-2(a)(3), Ala. Code 1975, and first-degree assault, see
§ 13A-6-20, Ala. Code 1975. Gaston was sentenced to 30
years' imprisonment on each conviction, the sentences to
run concurrently, and he was ordered to pay $8,140 in
restitution and $50 to the Crime Victims Compensation Fund.
On appeal, the Court of Criminal Appeals affirmed
Gaston's convictions and sentences in an unpublished
memorandum, reasoning, among other things, that Gaston failed
to preserve for appellate review his objection that his
accomplice's testimony was not corroborated. Gaston
v. State 173 So.3d 5 (Ala.Crim.App. 2014) (table). This
Court issued a writ of certiorari to review the Court of
Criminal Appeals' decision but now quashes the writ.
Because I do not believe the State presented sufficient
evidence to convict Gaston, I respectfully dissent.
evening of June 13, 2009, Marvin Gaston, Samdriquez Hall,
Jemario Mushat, Seandarius Savage, and Pete Mungro were
riding around Montgomery in a blue GMC
sport-utility vehicle (" the SUV" ) that belonged
to Gaston's aunt, who had allowed Mungro to borrow it. At
approximately 10:00 p.m., Gaston and his companions stopped
at a Pace Car gasoline station on Narrow Lane Road. While
they were putting gasoline into the SUV, Hall was involved in
a brief altercation with LaQuinta Shuford. Hall punched
Shuford, yelling " f[***] Court Block," an apparent
reference to a gang whose area is South Court Street in
Montgomery. Shuford's girlfriend, Kimberly Manor,
intervened and stopped the situation from escalating.
testified that he then reached for his cellular telephone and
that, when he did so, Mungro approached Shuford holding his
belt, as if " he had a gun tucked under his belt."
Apparently, Mungro believed that Shuford was reaching for a
gun. Savage intervened and told Mungro that Shuford did not
have a gun and that he was not threatening them. Shuford and
Manor returned to their vehicle, and Mungro, Hall, and their
companions (including Gaston) returned to the SUV. As Manor
was driving her vehicle away from the gas station, the SUV
pulled up beside her vehicle. Manor heard someone yell,
" B[****], pull over." Manor looked to her left,
where she saw Mushat pointing a gun out of the passenger-side
front window of the SUV. Mushat fired a shot, which hit
Manor's vehicle. Nobody was injured, and the SUV sped
testified that she did not know Gaston, that she could not
identify him as an occupant of the SUV, that he did not
threaten her at the gas station, that she did not see him
with a gun, and that he did not aid " in anything that
went on" that night. Likewise, Shuford testified that
there was no " bad blood" between him and Gaston.
Shuford also testified that he could not implicate Gaston in
the events of June 13, 2009. When asked to describe
Gaston's involvement in the gas-station altercation,
Shuford testified that Gaston was merely in the "
[w]rong place at the wrong time."
30 to 60 minutes after the incident at the Pace Car gas
station, Steve Arrington and Terrance Ponder were heading
westbound on East Boulevard in a Buick Roadmaster automobile.
Arrington testified that, after he and Ponder went through a
traffic light near the Pace Car gas station on Narrow Lane
Road, the blue SUV carrying Gaston and his companions came up
behind them and tried to run them off the road. Occupants of
the SUV fired shots at the Roadmaster and eventually came
alongside it on the left, at which point the vehicles
collided. More shots were fired into the Roadmaster, and the
SUV then sped away. Arrington was wounded and Ponder was
killed as a result of the shooting. Arrington was unable to
say which occupants of the SUV had fired the shots. Arrington
also testified that he did not know Gaston.
returned the SUV to Gaston's aunt sometime between 11:00
p.m. and 12:00 a.m. that night. The SUV had sustained damage
to its right rear-quarter panel. The following day, Mungro
told Gaston's aunt to put the SUV in her backyard and
instructed her not to open the door of her house for anyone.
confirmed that the Roadmaster had been shot 19 times. Police
also recovered seven shell casings from the area in which the
shooting occurred. Adam Groom, a forensic scientist with the
Department of Forensic Sciences, testified that the shell
casings appeared to be fired from three different weapons.
However, police were unable to connect the ejected shells to
any firearms that were seized during the investigation;
therefore, they were unable to connect the shell casings or
bullets to any of the occupants of the SUV.
Michael Myrick of the Montgomery Police Department testified
that Gaston voluntarily gave a statement to the police during
the investigation of the incident. According to Sgt. Myrick,
Gaston admitted that he had been riding around in the SUV
earlier on the evening of the shooting. However, Gaston
denied any knowledge of the shooting, claiming that he and
Mushat had been dropped off before the time at which the
police indicated the shooting occurred.
and his companions were arrested for their involvement in the
shooting. Gaston was charged with the felony murder of Ponder
and with first-degree assault as to Arrington. The
State's theory of the incident was that Shuford's
friends and Gaston's friends were members of rival groups
and that the encounter at the Pace Car gas station prompted
Gaston and his companions to look for other members of
Shuford's group to harm, which led to the shooting of
Arrington and Ponder. Gaston and Hall were tried together but
were represented by different counsel. During her opening
statement, Gaston's counsel told the jury that Gaston
would not dispute either that he was present during the
incident at the Pace Car gas station or that he was in the
SUV when Arrington and Ponder were shot.
who had pleaded guilty to Ponder's murder and to
Arrington's assault, testified for the State at
Gaston's trial. Mushat testified that, when the shootings
of Arrington and Ponder occurred, three people were sitting
in the backseat of the SUV, that Gaston was one of them, and
that Gaston was sitting behind the driver. Mushat said he was
sitting in the front passenger seat. Mushat testified that
shots were fired from the backseat out of the rear passenger
window (which could be lowered only halfway), but he was
unable to say which of the three men in the backseat fired
the shots. Mushat also provided the following on
" Q. You're not saying Mr. Gaston had a gun, are
" A. No ma'am.
" Q. You're not saying Mr. Gaston shot at anybody
that night, are you?
" A. No ma'am.
" Q. You're not saying that he was the person who
instigated a fight with ...