Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ex parte Fuller

Supreme Court of Alabama

March 3, 2017

Ex parte Paudriciquez Martez Fuller
v.
State of Alabama In re: Paudriciquez Martez Fuller

         Jefferson Circuit Court, Bessemer Division, CC-14-422; Court of Criminal Appeals, CR-14-0368.

          PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS

          PER CURIAM

         WRIT QUASHED. NO OPINION.

          Stuart, Bolin, Shaw, and Main, JJ., concur. Parker, Murdock, and Bryan, JJ., dissent. Wise, J., recuses herself.

          PARKER, Justice (dissenting).

         I respectfully dissent from the majority's decision to quash the writ of certiorari this Court previously issued. This Court granted certiorari review to consider whether the Court of Criminal Appeals erred in holding that the Jefferson Circuit Court ("the trial court") did not commit reversible error in refusing to give two jury instructions requested by Paudriciquez Martez Fuller. Fuller v. State, [Ms. CR-14-0368, December 18, 2015] __ So.3d __ (Ala.Crim.App.2015). Specifically, we granted certiorari review to consider 1) whether Fuller was entitled to a jury instruction under Alabama's stand-your-ground law, § 13A-3-23(b), Ala. Code 1975, and 2) whether Fuller was entitled to a jury instruction on a lesser-included offense. I would affirm the Court of Criminal Appeals' judgment as to the first issue and reverse it as to the second issue.

         Alabama law defines self-defense in § 13A-3-23, Ala. Code 1975, which states, in pertinent part:

"(a) A person is justified in using physical force upon another person in order to defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he or she may use a degree of force which he or she reasonably believes to be necessary for the purpose. ...
"(b) A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground."

         Although not explicitly stated in § 13A-3-23, the Court of Criminal Appeals explained in Malone v. State, [Ms. CR-14-1326, June 3, 2016] __ So.3d __, ___ (Ala.Crim.App.2016), that the duty-to-retreat requirement, which was part of Alabama's common law, is still applicable under § 13A-3-23, as follows:

"Before it was amended in 2006, § 13A-3-23(b), Ala. Code 1975, provided, in relevant part:
"'(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if it reasonably appears or he knows that he can avoid the necessity of using such force with complete safety:
"'(1) By retreating, except that the actor is not required to retreat:
"'a. If he is in his dwelling or at his place of work and was not the original aggressor; or
"'b. If he is a peace officer or a private person lawfully assisting a peace officer at his discretion.'
"As noted in the Commentary to the Code section, § 13A-3-23 in 1975 'codifie[d] much of the contemporary doctrine on self-defense and the protection of others. Little distinction exists between former Alabama law and that of these codifications, except in the aspect pertaining to third persons in whose aid defendant has acted.' With regard to former subsection (b) specifically, the Commentary stated:
"'Subsection (b) further qualifies the use of deadly force. If the defendant can avoid the necessity of taking life by retreating, in general he must give way. Former Alabama law required retreat if it is "reasonably apparent" that it can be done without increasing the danger. Some contemporary codifications require the defendant to "know" that safe retreat is possible. The Criminal Code retains the obligation to retreat in the interest of preserving life, but gives the defendant the benefit of reasonable appearances rather than actual knowledge of an alternative. Not requiring retreat from "in" one's dwelling or place of business conforms to Alabama case law.'
"Thus, former subsection (b) was a codification of the common-law rules regarding a duty to retreat before using deadly force. As noted by one commentator, before its codification in former subsection (b), the duty to retreat had been recognized in Alabama cases for almost a century. See Jason W. Bobo, Following the Trend: Alabama Abandons the Duty to Retreat and Encourages Citizens to Stand Their Ground, 38 Cumb. L. Rev. 339, 354-58 (2008) (discussing the history of the duty to retreat in Alabama cases).
"The 2006 amendment to § 13A-3-23 removed former subsection (b) and replaced it with the following:
"'A person who is justified under subsection (a) in using physical force, including deadly physical force, and who is not engaged in an unlawful activity and is in any place where he or she has the right to be has no duty to retreat and has the right to stand his or her ground.'
"As amended, § 13A-3-23 no longer includes an express codification of the common-law rules regarding the duty to retreat. In recognizing that there is no duty to retreat under certain conditions, however, § 13A-3-23 assumes that the common-law rules regarding a duty to retreat generally remain in effect in evaluating a claim of justified deadly force under § 13A-3-23. Otherwise, the no-duty-to-retreat provision of § 13A-3-23(b) makes no sense. Indeed, as this Court has recently explained:
"'Section 13A-3-23(b) provides a qualified exception to the common-law rule that required a person to retreat rather than use deadly physical force if that person can retreat without increasing his or her peril. See Kyser v. State, 513 So.2d 68 (Ala.Crim.App.1987) (setting forth the standard concerning a person's duty to retreat under the common law and under a prior version of § 13A-3-23). Section 13A-3-23(b) exempts people who are not engaged in an unlawful activity and are in any place where they have the right to be from the common-law rule.'
"Wallace v. State, [Ms. CR-14-0595, Dec. 18, 2015] So.3d __, __ (Ala.Crim.App.2015) (quoting Fuller v. State, [Ms. CR-14-0368, Dec. 18, 2015] __ So.3d __, __ (Ala.Crim.App.2015) (emphasis added)). Accordingly, an accused who claims to have been justified in using deadly force under § 13A-3-23 must have complied with the common-law rules regarding the duty to retreat unless he or she meets the requirements of § 13A-3-23(b)."

         In my view, the pivotal issue in this case is whether Fuller presented evidence indicating that he was not engaged in unlawful activity so as to be entitled to a jury instruction under § 13A-3-23(b). Fuller does not dispute the fact that he was prohibited from possessing a firearm under § 13A-11-72(a), Ala. Code 1975. However, Fuller argues that he presented evidence indicating that he was justified in possessing the firearm before he needed it to actually defend himself, which, Fuller argues, entitled him to a jury instruction under § 13A-3-23(b).

         Fuller's actual argument is that he presented evidence indicating that he was justified in using the firearm to defend himself and, thus, that he was justified in possessing the firearm prior to his needing it to defend himself. See Fuller's brief, at pp. 8-9. Fuller argues that he presented evidence indicating that he reasonably believed that Romaine Witherspoon, the victim, was going to use unlawful physical force on him as evidenced by the fact that Witherspoon pointed a gun at Fuller. Fuller also argues that he presented evidence indicating that he had no reasonable opportunity to retreat. Essentially, Fuller argues that he presented evidence indicating that he is entitled to a jury instruction under § 13A-3-23(a). Fuller then appears to argue that, on this basis, he was entitled to a jury instruction under § 13A-3-23(b).

         There is no question that Fuller has demonstrated that he was entitled to a jury instruction on self-defense; the trial court agreed and so instructed the jury. It is well settled in Alabama that a person prohibited from possessing a firearm under § 13A-11-72(a) may be justified in possessing a firearm for purposes of self-defense.[1] See Ex parte Taylor, 636 So.2d 1246, 1247 (Ala. 1993). However, Ex parte Taylor and its progeny do not give a person prohibited from possessing a firearm under § 13A-11-72(a) carte blanche to possess a firearm at all times. This Court stated in Ex parte Taylor:

"'We hold that when a felon is in imminent peril of great bodily harm, or reasonably believes himself or others to be in such danger, he may take possession of a weapon for a period no longer than is necessary or apparently necessary to use it in self-defense, or in defense of others. In such situation justification ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.