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Ex parte Gaston

Supreme Court of Alabama

June 12, 2015

Ex parte Marvin Nikia Gaston
State of Alabama In re: Marvin Nikia Gaston

         As 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).

         Stuart, Bolin, Parker, Murdock, Shaw, Main, Wise, and Bryan, JJ., concur. Moore, C.J., dissents.



         Per Curiam.


         MOORE, Chief Justice (dissenting).

         Marvin 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 On appeal, the Court of Criminal Appeals affirmed Gaston's convictions and sentences in an unpublished memorandum, reasoning, among other things, that Gaston failed to preserve for appellate review his objection that his accomplice's testimony was not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.

         On the evening of June 13, 2009, Marvin Gaston, Samdriquez Hall, Jemario Mushat, Seandarius Savage, and Pete Mungro were riding around Montgomery in a blue GMC

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          Yukon 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.

         Shuford 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 away.

         Manor 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."

         Between 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.

         Mungro 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.

         Police 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.

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          Sgt. 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.

         Gaston 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.

         Mushat, 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 cross-examination:

" Q. You're not saying Mr. Gaston had a gun, are you?
" 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 ...

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