June 12, 2015
Ex parte State of Alabama
State of Alabama In re: Phillip Allen Moore
(Tuscaloosa Circuit Court, CC-12-2616; Court of Criminal
Justice. Moore, C.J., and Stuart, Bolin, Parker, Main, and
Wise, JJ., concur. Murdock and Shaw, JJ., dissent.
FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL
DENIED. NO OPINION.
C.J., and Stuart, Bolin, Parker, Main, and Wise, JJ., concur.
and Shaw, JJ., dissent.
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is not binding precedent. 145 So.3d at 741 n. 5 (Shaw, J.,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.
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.
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
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
which I strenuously disagreed in Pate and still
facts in Pate (and in turn the factual parallels between Pate
and the present case), however, were not limited to the bare
act of arming one's self. In Pate, after verbally
threatening the victim, the defendant did in fact engage in
the " physical action" of walking to his truck and
retrieving a shotgun from that vehicle. In addition, however,
the defendant in Pate then engaged in the further "
physical action" of turning and beginning to advance
toward the victim with the weapon in hand. Ex parte
Pate, 145 So.3d at 736 n.2. Here,
Moore likewise, after retrieving his weapon, turned and
advanced toward the victim with the weapon in hand.
Furthermore, the facts of both cases include very explicit,
verbal statements made by the defendants that provide context
for their physical actions and from which the jury in each
case reasonably could have drawn inferences as to the
presence of the state of mind required for an act of
menacing. See Ex parte Pate, 145 So.3d at 736; id.
at 741 (Murdock, J., dissenting); Moore v. State, __
So.3d __at __; id. at __ (Burke, J.,
in mind the deference accorded the verdict of jurors who have
heard and assessed the testimony of witnesses appearing
before them, as well as the quantum of proof required in a
criminal case, the essential question is whether there is
substantial evidence from which the jurors reasonably could
have found that Moore intended or attempted to place the
victim in fear of imminent serious injury. In the context of
preexisting conflict with the victim, a man retrieves a
3-foot-long metal pipe and then turns and advances to a
face-to-face confrontation within 15 to 20 feet of the victim
while holding the 3-foot-long pipe in a threatening position
(" kind of like a batter" according to one
witness). Fifteen to 20 feet simply is not that much distance
for an angry man postured as described with a 3-foot-long
metal pipe. As the State explained in a passage in its brief
quoted with approval by the majority opinion in the Court of
" 'Moore was in a position to inflict lethal damage
because he was capable of striking West and crushing his
skull in about 3 or 4 seconds. Moore, in the position in
which he had the pipe, also could have thrown this weapon at
Moore, __ So.3d __at __ (quoting the State's
brief, p. 15).
the evidence of Moore's physical actions, Moore's
demeanor, including the verbal abuse that preceded and
accompanied his physical actions, and other evidence of the
volatility of the situation heard by the jury, I cannot say
--or more appropriately, I do not believe the Court of
Criminal Appeals was correct in saying -- that, as a matter
of law, reasonable jurors were foreclosed from finding that
Moore engaged in an act of " menacing." Because I
believe that the petition presents a probability of merit, I
respectfully dissent from this Court's decision today not
to grant that petition.
instant matter, the State of Alabama petitions this Court for
certiorari review of the decision of the Court of Criminal
Appeals in Moore v. State, [Ms. CR-13-0113, Nov. 21,
2014] __ So.3d __, 183 So.3d 1000 (Ala.Crim.App. 2014),
reversing Phillip Allen Moore's conviction for menacing.
For the reasons discussed below, I dissent from denying the
crime of " menacing" is statutorily defined 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." Ala. Code 1975, § 13A-6-23(a). The main
opinion in Ex parte Pate, 145 So.3d 733 (Ala. 2013),
held that the act
of arming one's self with a firearm was not sufficient to
constitute the crime of menacing. Specifically, the main
opinion stated that such action, as a matter of law, was not
a " physical action" for purposes of menacing. 145
So.3d at 738.
instant case, Moore, the defendant, armed himself
with a pipe. This act, although threatening in nature, was
less likely than the act in Pate to place a victim in fear of
imminent serious physical injury: Moore was too far away from
the victim to hit him with the pipe, while the victim in Pate
was well within range of the defendant's much more
dangerous weapon. That Moore approached the victim and
taunted him makes no difference; the defendant in Pate also
approached the victim after threatening the victim with
actual physical harm and then arming himself with a much more
dangerous weapon than did Moore. If Pate is to be followed,
then there is no probability of merit in the argument that
the Court of Criminal Appeals erred in reversing Moore's
conviction. See Rule 39(f), Ala. R. App. P. (" If the
Supreme Court, upon preliminary consideration, concludes that
there is a probability of merit in the petition and that the
writ should issue, the Court shall so order ...." ).
Indeed, if Pate is to be followed, it is difficult to imagine
that § 13A-6-23(a) has any meaningful field of
operation. However, I do not believe that Pate is binding
Pate, four members of the Court concurred in the main
opinion, one concurred in the result, two dissented, and two
did not sit in the case. Only four Justices--not a majority
of the Court--joined the main opinion, and it is not binding
precedent. See Ala. Code 1975, § 12-3-16 (" The
decisions of the Supreme Court shall govern the holdings and
decisions of the courts of appeals ...." ), and KGS
Steel, Inc. v. McInish, 47 So.3d 780, 781 (Ala.Civ.App.
2009) (noting that only " 'decisions of the
majority' of the Supreme Court" are "
decisions" for purposes of § 12-3-16) (quoting
Willis v. Buchman, 30 Ala.App. 33, 40, 199 So. 886,
892 (1940) (opinion after remand)). See also Jones v.
City of Huntsville, 288 Ala. 242, 244, 259 So.2d 288,
dissented in Pate, and I remain convinced that Pate was
wrongly decided. In my opinion, both the facts in Pate and
the facts in the instant case show acts--physical
action--that could place, or constitute an attempt to place,
another person in fear of imminent serious physical injury.
In the instant case, I would decline to follow the nonbinding
decision in Pate, reverse the Court of Criminal Appeals'
decision, and affirm Moore's menacing conviction.
The judges of the Court of Criminal
Appeals, as well as Justice Shaw, also disagree with this
position. Both judges of the Court of Criminal Appeals who
dissented, Judge Windom and Judge Burke, obviously disagree.
See, e.g., Moore, __ So.3d at __ (Burke, J.,
dissenting). And the other three judges on the Court of
Criminal Appeals concurred in a per curiam opinion that
states that, " [b]efore Pate," they too "
would have been inclined to recognize" what they refer
to as " the inherent logic" of the State's
position on what constitutes physical action, as well as the
type of showing that will satisfy the state-of-mind element
of menacing. See Moore, __ So.3d at __.
In the present case, the jury's
assessment of both the physical-action element and the
state-of-mind element could have been influenced by the
general environment and state of conflict created by Moore
and his cohort, including the facts that Moore, as well as
his cohort and the cohort's girlfriend, had been
drinking; that Moore purposefully played music with obscene
lyrics loudly enough to be heard by the victim and his wife
and teenage daughter; that Moore and his cohort were making
lewd gestures directed at the victim; and that Moore's
cohort contemporaneously caused physical injury to the victim
by running into him with a car.
The Court of Criminal Appeals described the
facts in the instant case in Moore, supra, and I see no need
to repeat them here.
Moore could have been within range to throw
the pipe at the victim, but such possibility only shows that
the facts of this case are more similar to Pate, where the
menacing conviction was reversed.
Rule 16(b), Ala. R. App. P., provides that,
when, by reason of disqualification, the number of Justices
competent to sit in the determination of a cause is reduced,
a majority shall suffice, but at least four Justices must
concur. The concurrence of four Justices of a seven-member
court " would suffice" as a majority only when the
Court is reduced to seven members by reason of
disqualification. The opinion in Pate does not state that the
two Justices who did not vote in that case had recused
themselves from consideration of the case. Thus, it cannot be
said that the number of Justices competent to sit was reduced
by " disqualification," and the number of Justices
required to constitute a majority was five, not four. See
also Ala. Code 1975, § 12-2-14.