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Ex parte State

Supreme Court of Alabama

June 12, 2015

Ex parte State of Alabama
v.
State of Alabama In re: Phillip Allen Moore

          (Tuscaloosa Circuit Court, CC-12-2616; Court of Criminal Appeals, CR-13-0113).

         BRYAN, Justice. Moore, C.J., and Stuart, Bolin, Parker, Main, and Wise, JJ., concur. Murdock and Shaw, JJ., dissent.

          OPINION

         PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS

Page 1006

          BRYAN, Justice.

         WRIT DENIED. NO OPINION.

         Moore, C.J., and Stuart, Bolin, Parker, Main, and Wise, JJ., concur.

         Murdock and Shaw, JJ., dissent.

          DISSENT

         MURDOCK, Justice (dissenting).

         I write separately for what I believe to be two important reasons. First, it is particularly important to note, as Justice Shaw correctly explains in his dissent, that the main opinion in Ex parte Pate, 145 So.3d 733 (Ala. 2013), was a plurality opinion in which only four Justices concurred and is not binding precedent. 145 So.3d at 741 n. 5 (Shaw, J., dissenting). The Court of Criminal Appeals concluded its analysis in this case by stating that, if not for the decision in Pate, it would not have reversed the trial court's judgment convicting Phillip Allen Moore of the offense of menacing. Moore v. State, [Ms. CR-13-0113, Nov. 21, 2014] __ So.3d __, __ (Ala.Crim.App. 2014). That court states, however, that it was " bound by the Pate decision." __ So.3d at __. For the reasons explained by Justice Shaw in his separate writing, that statement is incorrect.

         The other reason I write separately is to note that this is the first " menacing case" to come before this Court since Pate was decided and that the facts presented and the result reached in this case corroborate the concern I expressed in Pate as to " the continued viability of the crime of menacing" if Pate were to be followed. 145 So.3d at 740 (Murdock, J., dissenting). Indeed, in contrast to Justice Shaw (whose views generally coincide with mine), I believe the present case presents no less a manifestation, and perhaps an even stronger manifestation, of this concern than do the facts and the result in Pate.

         Menacing is a Class B misdemeanor and is defined simply as follows: " A person commits the crime of menacing if, by physical action, he intentionally places or attempts to place another person in fear of imminent serious physical injury." § 13A-6-23(a), Ala. Code 1975. To prove that the misdemeanor of menacing has occurred the State must prove simply (1) some " physical action," by which (2) the defendant " intentionally place[d] or attempt[ed] to place" another in fear of " imminent serious physical injury."

         The main opinion in Pate took the position that, as a matter of law, the act of retrieving a firearm did not constitute " physical action" for purposes of satisfying the first element of menacing. Obviously, this is a position with ...


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