June 12, 2015
Ex parte Marvin Nikia Gaston
State of Alabama In re: Marvin Nikia Gaston
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Gaston's convictions and sentences in an unpublished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 [Shuford] at Pace Car?
" A. No ma'am.
" Q. You're not saying he was the one who was
driving, following Ponder and Arrington in that car after
[they left] Front Street [a nightclub]?
" A. No, ma'am.
" Q. And you're not saying that any time that he
[Gaston] is leaning out of the window or shooting out of the
passenger side of the car?
" A. No, ma'am.
" Q. In fact, you never put him on the passenger side of
that vehicle, do you?
" A. No, ma'am."
State also introduced a letter Mushat admitted to authoring
in part and sending to Gaston while they were both in jail.
The letter urged Gaston to agree with Mushat that Mungro was
the shooter and that Savage was the driver.
close of the State's evidence, Gaston moved for judgments
of acquittal, arguing that the State could not establish that
he was involved in the shootings of Arrington and Ponder.
Specifically, Gaston's counsel commented three times that
the State failed to make a " prima facie showing"
that Gaston was complicit in the shootings of Arrington and
Ponder. Gaston's counsel also presented detailed
as to why the evidence was insufficient to convict Gaston. As
part of the " prima facie showing" argument,
Gaston's counsel also discussed Mushat's testimony in
detail and concluded that Mushat " has no information to
show that Mr. Gaston or at least no testimony was solicited
that he either encouraged, promoted, assisted or [in] any
other manner was complicit in the actions -- or the injuries
caused to Mr. Ponder and Mr. Arrington." The trial court
denied Gaston's motion.
of his defense, Gaston called Robert Scott, an automobile
mechanic who had worked on the SUV. Scott testified that the
rear driver-side door window on the SUV was manufactured in
such a way that it lowered only about five inches. Scott also
testified that the door handle on the rear driver-side door
was broken and could not be opened from the inside. Thus,
according to the defense, Gaston was unable to get out of the
SUV without assistance from someone outside the vehicle.
close of all the evidence, Gaston renewed his motion for
judgments of acquittal on both charges. The trial court again
denied Gaston's motion. The jury found Gaston guilty of
first-degree assault and felony murder. The trial court
sentenced Gaston to 30 years' imprisonment on each
conviction, the sentences to run concurrently.
appeal to the Court of Criminal Appeals, Gaston argued, among
other things, that the trial court erred in denying his
motions for judgments of acquittal. In the " Statement
of the Issues" section of his brief to the Court of
Criminal Appeals, Gaston framed the issue as follows: "
The trial court erred in denying Gaston's motion for a
judgment of acquittal where, excluding the accomplice
testimony, the State failed to present legally sufficient
evidence that Gaston acted either as a principal or accessory
as to the offenses at bar." After discussing the
applicable law, Gaston began his analysis by arguing that,
" subtracting Jemario Mushat's accomplice testimony,
the State failed to present sufficient evidence to connect
Gaston to the commission of the offense."
then presented the following supporting arguments: (1) that,
although the State presented evidence indicating that Gaston
was in the SUV when the incident at the Pace Car gas station
occurred, it presented no corroborating evidence to show that
Gaston was in the SUV when the shootings of Arrington and
Ponder occurred; (2) that there was no physical or forensic
evidence connecting Gaston to the offenses; (3) that, even if
the jury believed that Gaston was in the vehicle at the time
of the shootings, all the evidence placed him in the backseat
on the driver's side of the SUV, whereas the gunfire came
from the passenger's side of the SUV; and (4) that none
of the remaining evidence, if the accomplice testimony is
subtracted, suggested that Gaston was guilty of the criminal
offenses for which he was charged. Gaston concluded the
argument section of this issue as follows: " Unlike his
codefendant and alleged accomplices, there is no evidence
indicating that Gaston took any action at any point in the
evening, either by cursing, hitting, driving, or shooting.
The evidence does nothing to actually connect Gaston to the
commission of the offenses." Gaston therefore concluded
that his motion for judgments of acquittal should have been
granted and requested that the Court of Criminal Appeals
reverse his convictions and sentences and render judgments of
acquittal in his favor.
unpublished memorandum, the Court of Criminal Appeals framed
this issue as follows:
" Gaston contends that the trial court erred in denying
his motion for judgments
of acquittal because, he says, the State's evidence was
insufficient to support a finding of guilt. Specifically,
Gaston argues that the State did not produce evidence to
corroborate the testimony of accomplice Jemario Mushat, as
required by § 12-21-222, Ala. Code, 1975. ..."
Citing Marks v. State, 20 So.3d 166, 172
(Ala.Crim.App. 2008), the Court of Criminal Appeals held that
Gaston failed to preserve this issue for appeal because he
challenged only the sufficiency of the evidence at trial,
without specifically arguing that Mushat's testimony was
petitioned this Court for a writ of certiorari, which this
Court granted on August 28, 2014.
" '" Appellate courts are limited in reviewing
a trial court's denial of a motion for judgment of
acquittal grounded on insufficiency." McFarland v.
State, 581 So.2d 1249, 1253 (Ala.Crim.App. 1991). " The
standard of review in determining sufficiency of evidence is
whether evidence existed at the time [the defendant's]
motion for acquittal was made, from which the jury could by
fair inference find the [defendant] guilty." Linzy
v. State, 455 So.2d 260, 26 (Ala.Crim.App. 1984)
(citing Stewart v. State, 350 So.2d 764
(Ala.Crim.App. 1977), and Hayes v. State, 395 So.2d
127 (Ala. Crim. App.), writ denied, 395 So.2d 150 (Ala.
1981)). In determining the sufficiency of the evidence, we
view the evidence in the light most favorable to the State.
" Ex parte Burton, 783 So.2d 887, 890-91
" 'The role of appellate courts is not to say
what the facts are. Our role ... is to judge whether the
evidence is legally sufficient to allow submission of an
issue for decision to the jury.' Ex parte
Bankston, 358 So.2d 1040, 1042 (Ala. 1978)."
Ex parte Williford, 931 So.2d 10, 13 (Ala. 2005)
(alterations in original).
argues, among other things, that Marks and Ex parte Weeks,
591 So.2d 441 (Ala. 1991), upon which Marks was based, are
due to be overruled because, he says, they are inconsistent
with decisions of this Court addressing preservation of the
issue of sufficiency of the evidence for appellate review. In
Ex parte Maxwell, 439 So.2d 715, 717 (Ala. 1983),
this Court stated the general rule for preserving an
objection to the sufficiency of the evidence:
" To preserve the issue for appeal, it is necessary for
defendant to state his grounds upon moving to exclude
evidence; however, it is not necessary to draw the trial
court's attention to the particular defect. It is
sufficient that the defendant state the ground that the
prosecution has failed to make a prima facie case."
general rule in Maxwell has been cited favorably many times
by this Court. See, e.g., Ex parte Parks, 923 So.2d
330, 334 (Ala. 2005); Ex parte McNish, 878 So.2d
1199, 1200-01 (Ala. 2003); Ex parte Hall, 843 So.2d
746, 748-49 (Ala. 2002); and Ex parte Johnson, 620
So.2d 665, 668-69 (Ala. 1993).
in Ex parte Weeks, 591 So.2d at 442, this Court,
almost in passing, effectively held that a general motion for
a judgment of acquittal is insufficient to preserve for
appellate review the issue whether an accomplice's
testimony was sufficiently corroborated. Weeks did not quote
from, cite to, or even mention Maxwell. Since Weeks was
decided in 1991, this Court has never cited Weeks again in
any of its decisions involving the issue before us.
Court of Criminal Appeals examined Weeks carefully in Marks,
interpreting Weeks to mean that an objection to the
sufficiency of the evidence does not preserve
the specific issue of accomplice corroboration. Although the
Marks court held that Weeks was an " anomaly" in
the precedent of this Court, it nevertheless felt bound to
follow Weeks on the specific issue of preservation of the
issue of accomplice corroboration for appellate review.
Marks, 20 So.3d at 172. As noted above, the Court of Criminal
Appeals in the present case based its decision on Marks and,
in turn, on Weeks.
12-21-222, Ala. Code 1975, provides: " A conviction of
felony cannot be had on the testimony of an accomplice unless
corroborated by other evidence tending to connect the
defendant with the commission of the offense, and such
corroborative evidence, if it merely shows the commission of
the offense or the circumstances thereof, is not
sufficient." In other words, if a conviction for a
felony is based on an accomplice's testimony, then there
must be corroborating evidence tending to connect the
defendant with the commission of the offense. It would
appear, then, that if the State does not present such
corroborating evidence, it has not presented sufficient
evidence to send the question of the defendant's guilt to
the jury. If this is true, then it is difficult to justify
Weeks (and subsequently Marks).
appropriate case, this Court should consider overruling Weeks
and Marks. However, I believe it is not necessary in this
case to overrule Weeks and Marks because, even if
Mushat's testimony was sufficiently
corroborated, I believe that the State still failed
to present sufficient evidence that Gaston was guilty of the
crimes with which he was charged. Mushat testified that
Gaston was in the SUV at the time of the shooting, that
Gaston was sitting in the backseat behind the driver, and
that the shots came from the backseat, although he could not
tell who was firing the shots. Mushat did not testify that
Gaston fired the shots that killed Ponder or wounded
Arrington, that Gaston fired any shots at all, or that Gaston
even had a gun. Moreover, Mushat did not testify to anything
from which the jury could reasonably infer that Gaston aided,
abetted, or encouraged those who did fire the shots. In other
words, Mushat testified only that Gaston was in the SUV when
the crimes occurred, and " mere presence at the scene of
a crime is not enough to support a conviction." Ex parte
Smiley, 655 So.2d 1091, 1095 (Ala. 1995).
even taken together with Mushat's testimony, the other
evidence in this case was also insufficient to allow a
reasonable jury to find beyond a reasonable doubt that Gaston
was guilty of the charged offenses. Shuford testified merely
that Gaston was present at the Pace Car gas station 30 to 60
minutes before the shootings. Shuford testified that there
was no " bad blood" between him and Gaston and that
Gaston was merely in the wrong place at the wrong time. Manor
that Gaston was not involved in the altercation at the gas
station. Although a jury might reasonably infer that, based
on the gas-station altercation, Gaston would have a desire to
harm others who did have " bad blood" with his
friends, a jury would have to make yet another inference that
Gaston committed the wrongful acts for which he was charged.
See Systrends, Inc. v. Group 8760, LLC, 959 So.2d
1052, 1074 (Ala. 2006) (noting that an " '"
inference" is a reasonable deduction of fact, unknown or
unproved, from a fact that is known or proved,'" but
that an " '" inference cannot be derived from
another inference" '" (quoting Khirieh v.
State Farm Mut. Auto. Ins. Co., 594 So.2d 1220, 1224
Sgt. Myrick testified that Gaston admitted to riding around
in the SUV that evening but told him that he and Mushat were
not in the SUV when the shooting occurred. Because the jury
knew that Mushat pleaded guilty, the jury could reasonably
infer that Gaston lied to Sgt. Myrick about that fact.
Nevertheless, the jury would have to make another inference
based on that inference to determine that Gaston was guilty
of the crimes with which he was being charged.
even assuming that the shells found at the scene of the
shooting could be connected to the occupants of the SUV, the
evidence showed that the shots came from three different
weapons. Because there were five occupants of the SUV, the
jury would have had to guess which of the occupants fired the
shots. There is a difference between reasonably inferring
guilt from the evidence presented, which is permissible, and
completely guessing, which is not. See Systrends,
959 So.2d at 1074 (noting that a jury " might draw
reasonable inferences from the facts established by the
evidence" but that " '" [e]vidence ...
which affords nothing more than mere speculation, conjecture,
or guess is insufficient to warrant the submission of a case
to the jury" '" (quoting Finley v.
Patterson, 705 So.2d 826, 830 (Ala. 1997), quoting in
turn Sprayberry v. First Nat'l Bank, 465 So.2d
1111, 1114 (Ala. 1984))).
short, the State wholly failed to present evidence indicating
that Gaston fired the shots that killed Ponder and wounded
Arrington, which are the wrongful acts for which Gaston was
tried. The jury could not reasonably infer that Gaston shot
Arrington and Ponder just because he was present in the
vehicle. " [M]ere presence at the scene of a crime is
not enough to support a conviction." Smiley,
655 So.2d at 1095. Given the lack of evidence in this case,
no jury could find beyond a reasonable doubt that Gaston
committed either of the crimes with which he was charged;
therefore Gaston's motion for judgments of acquittal was
due to be granted.
there was not sufficient evidence to find Gaston guilty under
the theory of aiding and abetting.
" A person is legally accountable for the behavior of
another constituting a criminal offense if, with the intent
to promote or assist the commission of the offense:
" (2) He aids or abets such other person in committing
§ 13A-2-23, Ala. Code 1975.
" In order to convict [a defendant] under this
complicity provision, 'the State must adduce some legal
evidence implying that he either recruited, helped or
counseled in preparing ... [to commit the crime] or undertook
some part in its commission. Criminal agency in another's
offense is not shown merely by an exhibition of
Jones v. State, 481 So.2d 1183, 1187 (Ala.Crim.App.
1985) (quoting Pugh v. State, 42 Ala.App. 499, 502,
169 So.2d 27, 30 (1964)) (second alteration in the original).
prosecutor told the jury during his closing argument:
" If you don't even want to address the issue of who
pulled the trigger, it does not matter.
" Under the theory of aiding and abetting ... when you
offer any sort of assistance, support, any sort of
encouragement -- and you don't actually have to say I
hereby assist you, I support you in this, here use my gun;
you don't have to say those things -- it can be implied
-- but with that, that means you do not have to put a gun in
one of their hands."
State still failed to present evidence indicating that Gaston
provided any assistance, support, or encouragement in the
commission of these crimes.
not abundantly clear in this case whether Gaston was
challenging only the Court of Criminal Appeals' holding
that he had waived the argument that Mushat's testimony
was not sufficiently corroborated or whether he was also
bringing to us the ultimate issue of the sufficiency of the
evidence to sustain the convictions. At trial, Gaston argued
in his motion for judgments of acquittal that the State
failed to present a prima facie case. As part of that
argument, Gaston argued that Mushat did not testify to
anything that would have established Gaston's guilt. On
appeal, Gaston argued that, if Mushat's testimony is
excluded, the State failed to present sufficient evidence to
language in Gaston's brief to the Court of Criminal
Appeals was confusing. On the one hand, it could imply that
the evidence presented by the State would have been
sufficient if Mushat's testimony had been corroborated.
On the other hand, it could mean that Mushat's testimony
was due to be excluded because it did nothing to establish
Gaston's guilt and that, if Mushat's testimony is
excluded, the State failed to present sufficient evidence to
convict Gaston. I believe that Gaston meant the latter,
especially because (1) this interpretation is consistent with
what Gaston argued at trial and (2) Gaston concluded his
argument before the Court of Criminal Appeals by arguing that
the State presented no evidence (which necessarily would
include Mushat's testimony) indicating that Gaston
committed the offenses in question. I believe, therefore,
that the Court of Criminal Appeals incorrectly interpreted
Gaston's argument to be solely about corroboration of
accomplice testimony when it was really about the sufficiency
of the evidence as a whole.
petition for a writ of certiorari, Gaston addressed not only
the issue whether his corroboration argument had been
preserved for appeal (which, in turn, required asking us to
overrule Weeks), but also the issue whether the State
presented sufficient evidence to convict him. Gaston argued
that the Court of Criminal Appeals confused the question of
law, which was whether the State presented sufficient
evidence to convict him, with a specific argument, which
dealt with whether Mushat's testimony had been
sufficiently corroborated. Gaston also argued that, once
Mushat's testimony was subtracted, the State failed to
present sufficient evidence to convict him. After this Court
granted certiorari review, Gaston briefed these issues, and
the State made no objection that Gaston was briefing an
irrelevant issue because the sufficiency-of-the-evidence
issue was not properly before us. Thus, I believe the issue
of the sufficiency of the evidence was properly before this
even if it was not, the United States Supreme Court has held
that " a court may consider an issue 'antecedent to
... and ultimately dispositive of' the dispute before it,
even an issue the parties fail to identify and brief."
United States Nat'l Bank of Oregon v. Independent
Ins. Agents of America, Inc., 508 U.S. 439, 447, 113
S.Ct. 2173, 124 L.Ed.2d 402 (1993) (quoting Arcadia v.
Ohio Power Co., 498 U.S. 73, 77, 111 S.Ct. 415, 112
L.Ed.2d 374 (1990)). The present dispute ultimately arose
from the question whether the State presented sufficient
evidence to convict Gaston. The issue of the sufficiency of
the evidence is therefore antecedent to the questions whether
Mushat's testimony was corroborated sufficiently and
whether Gaston preserved that argument for appellate review.
Moreover, if the State failed to present sufficient evidence
to convict Gaston, then Gaston is entitled to a judgment of
acquittal, which would dispose of the other issues.
He that walketh with wise men shall be wise: but a companion
of fools shall be destroyed." Proverbs 13:20 (King
James). Gaston may have been a " companion of
fools," but that is all that the State could prove.
Merely being a companion of fools is not a punishable crime
at law. The jury could not reasonably infer from the fact
that Gaston was in the SUV with four other people that he was
the one who fired the shots or that he aided or abetted those
who did. I therefore believe the prosecution obtained
Gaston's convictions and sentences by proving "
guilt by association" instead of by proving guilt beyond
a reasonable doubt. Because the State did not meet its
burden, I believe the judgment of the Court of Criminal
Appeals is due to be reversed and that Gaston is due to be
acquitted. For these reasons, I respectfully dissent.
I note, however, that the State made
excellent arguments in response to Gaston's contentions
in his brief to this Court and that Gaston failed to file a
" 'Corroborate means to
strengthen, to make stronger; to strengthen, not the proof of
any particular fact to which the witness has testified, but
to strengthen the probative, criminating force of his
testimony.'" Andrews v. State, 370 So.2d
320, 322 (Ala.Crim.App. 1979) (citing Malachi v.
State, 89 Ala. 134, 140-41, 8 So. 104, 106 (1889)).
" Evidence of flight or other indications of
consciousness of guilt may be considered as corroborative
evidence." Andrews, 370 So.2d at 322. In this
case, Gaston's apparent lie to the police -- that he and
Mushat were not in the SUV when the shooting occurred --
tended to corroborate Mushat's testimony that Gaston was
in the SUV when the shooting occurred. Because I believe that
Mushat's testimony was sufficiently corroborated, I
believe that overruling Weeks and Marks would have made no
difference in this case; therefore, it was not necessary to
See also Planned Parenthood of Kansas &
Mid-Missouri v. Moser, 747 F.3d 814, 837 (10th Cir.
2014) (following United States Nat'l Bank) ("
Waiver, however, binds only the party, not the court. A party
that waives an issue is not entitled to have us consider and
rule on it. But it is well-settled that courts have
discretion to raise and decide issues sua sponte, even for
the purpose of reversing a lower-court judgment." );
Belize Telecom, Ltd. v. Government of Belize, 528
F.3d 1298, 1303-04 (11th Cir. 2008) (applying United States
Nat'l Bank); cf. Blue Cross & Blue Shield of Alabama v.
Hodurski, 899 So.2d 949, 960 (Ala. 2004) (" '"
Appellate review does not consist of supine submission to
erroneous legal concepts .... Our duty to enunciate the law
on the record facts. Neither the parties nor the trial judge,
by agreement or by passivity, can force us to abdicate our
appellate responsibility." '" (quoting
Forshey v. Principi, 284 F.3d 1335, 1357 n.20 (Fed.
Cir. 2002), quoting in turn Empire Life Ins. Co. v.
Valdak Corp., 468 F.2d 330, 334 (5th Cir.