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Ex parte Smith

Supreme Court of Alabama

January 11, 2019

Ex parte Aaron Cody Smith
v.
Aaron Cody Smith In re: State of Alabama

          Montgomery Circuit Court, CC-16-1397

          PETITION FOR WRIT OF MANDAMUS

          BOLIN, JUSTICE.

         Aaron Cody Smith, a police officer employed by the City of Montgomery Police Department, petitions this Court for a writ of mandamus directing the Montgomery Circuit Court to vacate its order denying Smith immunity pursuant to § 13A-3-23(d), Ala. Code 1975, and to enter an order granting Smith immunity under that statute. In the alternative, Smith petitions this Court for a writ of mandamus directing Montgomery County Circuit Judge Gregory O. Griffin, Sr., to enter an order recusing himself from the case. He also asks this Court to order the trial court to transfer this case to a venue other than Montgomery County based on pretrial publicity.

         Facts and Procedural History

         On February 25, 2016, Smith, a third-shift patrol officer, was on patrol in the Mobile Drive area of Montgomery when he encountered Gregory Gunn walking in the early morning hours. Smith decided to execute a Terry v. Ohio, 392 U.S. 1 (1968), stop. During the Terry stop an altercation occurred between Smith and Gunn, which resulted in Smith shooting Gunn with his service weapon. Gunn died of his wounds.

         On March 2, 2016, Smith was arrested and charged with murder. On November 18, 2016, Smith was indicted for murder by the Montgomery County Grand Jury. The case was assigned to Circuit Judge Gregory O. Griffin, Sr. Public discourse and community protests followed the shooting of Gunn and the subsequent arrest and indictment of Smith. Local political figures participated in the protests and public discourse, and those events received frequent and widespread media coverage, including coverage of the racial aspects of the case (Gunn was black; Smith is white). On December 2, 2016, Smith moved the trial court for a change of venue, asserting that the case had received extensive media coverage and had been "enmeshed with racial undertones by citizens and political figures within the Montgomery County community." On May 15, 2017, Smith moved Judge Griffin to recuse himself from the case following an incident in which Judge Griffin, who is black, was stopped by the Montgomery Police Department while walking in his neighborhood and then indicated his frustration with the stop by making a comment about it on social media. Specifically, Judge Griffin posted the following to his Facebook page:

"[I]t was aggravating to be detained when the only thing I was guilty of was being a black man walking down the street in his neighborhood with a stick in his hand who just happened to be a Montgomery County Circuit Judge in Montgomery, Alabama -- Lord Have Mercy!!!!!"

Judge Griffin's Facebook post garnered over 200 comments from the public and the post was "shared" over 3, 000 times. Smith argued that the stop of Gunn in this case was similar to the stop of Judge Griffin and that to avoid the appearance of impropriety it was necessary for Judge Griffin to recuse himself from the proceedings. Following a hearing on the motion to recuse, in which a particularly contentious debate occurred between Judge Griffin and Smith's counsel, Judge Griffin, on May 10, 2017, entered an order denying the motion to recuse.[1] The trial court then, on June 13, 2017, entered an order denying the motion for a change of venue. Smith petitioned the Court of Criminal Appeals for a writ of mandamus as to the recusal issue. On August 14, 2017, the Court of Criminal Appeals denied Smith's petition for a writ of mandamus, without an opinion. Ex parte Smith (No. CR-16-0850, August 14, 2017), ___ So. 3d___(Ala. Crim App. 2017)(table). Smith then petitioned this Court for a writ of mandamus on the recusal issue. On February 23, 2018, this Court entered an order denying the petition. Ex parte Smith (No. 1161024, Feb. 23, 2018), ___So. 3d___(Ala. 2018)(table).

         On August 14, 2017, Smith moved the trial court for immunity from prosecution pursuant to § 13A-3-23, Ala. Code 1975, arguing that at the time of the shooting he was acting in his official capacity as a policeman for the City of Montgomery and acting "in self defense and/or in the reasonable defense of others." Smith requested an evidentiary hearing on the matter. Following a hearing, the trial court, on July 26, 2018, entered an order denying Smith's motion for immunity from prosecution. At the close of the hearing, and with the media present in the courtroom, the trial court stated the following in open court:

"Often at probation revocation hearings, I have police officers from the Montgomery Police Department to testify, and it's their word against the defendant's word, and I look at the credibility of the officer. Okay. And, quite often, the officer is credible.
"But I have to admit to you that I did not find the officer's testimony today to be credible, and, therefore, I do not feel that you have met your burden of proof that he's entitled to immunity, and this trial will proceed on August 13."

On July 28, 2018, Smith again moved Judge Griffin to recuse himself and for a change of venue, asserting that the trial court had invited representatives of the media into the courtroom for the immunity hearing and then proclaimed at the close of that hearing that Judge Griffin did not find Smith's testimony to be credible. Smith contended that that statement in front of the media representatives, which then published the statement, evidenced a bias on behalf of Judge Griffin and had the effect of tainting the public's perception of Smith, thereby tainting the eventual jury pool. Thus, Smith argued that Judge Griffin should recuse himself and that the venue of the case should be changed. On July 31, 2018, the trial court entered an order denying the motions to recuse and for a change of venue. Smith petitioned the Court of Criminal Appeals for a writ of mandamus asking that court to enter an order finding Smith immune from prosecution pursuant to § 13A-3-23, Ala. Code 1975, and dismissing the charge against him or, in the alternative, to direct the trial court to set aside its order denying the motions for recusal and change of venue and to enter an order granting those motions. The Court of Criminal Appeals denied the petition for a writ of mandamus, without an opinion. Ex parte Smith (CR-17-1042, August 3, 2018), ___So.___3d (Ala.Crim.App.2018)(table). This petition followed.

         Standard of Review

"'Our review of a decision of the Court of Criminal Appeals on an original petition for a writ of mandamus is de novo. Rule 21(e)(1), Ala. R. App. P.; Ex parte Sharp, 893 So.2d 571, 573 (Ala. 2003). The standard for issuance of a writ of mandamus is well settled:
"'"A writ of mandamus is an extraordinary remedy, and is appropriate when the petitioner can show (1) a clear legal right to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) the properly invoked jurisdiction of the court."
"'Ex parte BOC Group, Inc., 823 So.2d 1270, 1272 (Ala. 2001) (citing Ex parte Inverness Constr. Co., 775 So.2d 153, 156 (Ala. 2000)).'
"Ex parte McCormick, 932 So.2d 124, 127-28 (Ala. 2005)."

State v. Jones, 13 So.3d 915, 919 (Ala. 2008).

         Discussion

         I. Immunity

         Smith argues that he is immune from prosecution pursuant to § 13A-3-23, Ala. Code 1975.[2] Section 13A-3-23 provides, in 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. A person may use deadly physical force ... if the person reasonably believes that another person is:
"(1) Using or about to use unlawful deadly physical force.
"....
"(3)Committing or about to commit ... assault in the first or second degree ....
"....
"(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.
"....
"(d)(1) A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.
"(2) Prior to the commencement of a trial in a case in which a defense is claimed under this section, the court having jurisdiction over the case, upon motion of the defendant, shall conduct a pretrial hearing to determine whether force, including deadly force, used by the defendant was justified or whether it was unlawful under this section. During any pretrial hearing to determine immunity, the defendant must show by a preponderance of the evidence that he or she is immune from criminal prosecution.
"(3) If, after a pretrial hearing under subdivision (2), the court concludes that the defendant has proven by a preponderance of the evidence that force, including deadly force, was justified, the court shall enter an order finding the defendant immune from criminal prosecution and dismissing the criminal charges.
"(4) If the defendant does not meet his or her burden of proving immunity at the pre-trial hearing, he or she may continue to pursue the defense of self-defense or defense of another person at trial. Once the issue of self-defense or defense of another person has been raised by the defendant, the state continues to bear the burden of proving beyond a reasonable doubt all of the elements of the charged conduct."

         The ore tenus rule is applicable to review of a trial court's decision regarding a motion filed pursuant to § 13A-3-23(d). State v. Watson, 221 So.3d 497 (Ala.Crim.App.2016).

"'When evidence is presented ore tenus to the trial court, the court's findings of fact based on that evidence are presumed to be correct,' Ex parte Perkins, 646 So.2d 46, 47 (Ala.1994); '[w]e indulge a presumption that the trial court properly ruled on the weight and probative force of the evidence,' Bradley v. State, 494 So.2d 750, 761 (Ala.Crim.App.1985), aff'd, 494 So.2d 772 (Ala. 1986); and we make '"all the reasonable inferences and credibility choices supportive of the decision of the trial court."' Kennedy v. State, 640 So.2d 22, 26 (Ala.Crim.App.1993), quoting Bradley, 494 So.2d at 761."

State v. Hargett, 935 So.2d 1200, 1203 (Ala.Crim.App.2005).

         The evidence presented at the immunity hearing indicated the following: Smith was a third-shift patrol officer assigned to District 14 in the Mobile Drive area of Montgomery. In the weeks preceding the events giving rise to this case, District 14 had experienced an increased number of residential and vehicle burglaries. Those burglaries were primarily occurring between 1 a.m. and 5 a.m. Smith testified that he had been told by a superior to "stop anything and everything that moves" in that district and that Smith had to "get a hold of the burglary problem" in District 14.

         On February 25, 2016, at approximately 3 a.m., Smith was on patrol when he turned his police vehicle onto McElvy Street and saw Gregory Gunn walking on the sidewalk. Gunn was wearing a dark hoodie and was walking in the opposite direction and on the other side of the street from Smith. Smith testified that the clothing Gunn was wearing matched the description of the clothing worn by an individual who had dropped a stolen laptop while running from Smith the previous week. Smith explained that because of the "high-crime" neighborhood, the time of the morning, and Gunn's clothing, he decided to execute a Terry stop on Gunn.

         Smith testified that he angled his vehicle toward Gunn and illuminated him with the lights of the vehicle. Smith stated that, at that time, Gunn put his hands in the pockets of the hoodie and starting walking at a quicker pace. Smith got out of the vehicle and instructed Gunn to take his hands out of his pockets and to place them on the hood of the vehicle. Gunn complied and placed his hands on the hood of Smith's vehicle. Smith testified that Gunn became agitated as Smith began patting him down. Smith stated that as he moved his hand to the front of Gunn's waistband he felt a "hard object" that "felt like a gun." Smith testified that Gunn slapped his hand away and stuck his hands back into the pockets of his hoodie. Smith unholstered his Taser and threatened to use it on Gunn if he did not put his hands back on the hood of the vehicle. Smith stated that Gunn complied and put his hands back on the hood of the vehicle. At that point Smith reholstered his Taser and called for backup on his handheld radio.

         Smith testified that, once he called for backup, Gunn started "side stepping" toward the front bumper of the vehicle, shoved Smith with his elbow, and ran away. As Smith chased Gunn he yelled for Gunn to show his hands and to get on the ground. Smith stated that he saw Gunn move his hands toward the front of his waistband. Smith stated that he feared that Gunn was reaching for a weapon so he unholstered his Taser and fired a Taser cartridge into Gunn's back. Gunn fell face first and landed on his stomach. Smith testified that he ordered Gunn to put his hands behind his back and that Gunn refused to comply. Smith stated that at that point Gunn "jutted" his hands under his body and toward his waistband. Smith re-energized the Taser and shocked Gunn again. Smith testified that Gunn ripped the prongs attached to the Taser cartridge out of his back and got up and ran away. Smith testified that he gave chase and that when Gunn continued to refuse to comply with Smith's orders to stop he fired a second Taser cartridge into Gunn. Smith stated that the second Taser cartridge had no effect on Gunn and that Gunn stated, "fk your Taser, bitch" and continued running. Smith continued to chase Gunn and got close enough to attempt to "drive stun"[3]him with the Taser. Smith stated that he contacted Gunn on the right shoulder with the Taser and that Gunn grimaced as if he were in pain, jerked his shoulder away, and kept running. Smith testified that at that point the Taser was useless.

         Smith continued to chase Gunn ordering him to stop running, which Gunn refused to do. At that point the two men were moving up a driveway toward a house.[4] Smith then deployed his baton -- a telescoping metal baton -- and struck Gunn on his arms and legs. Smith testified that the baton strikes had no effect on Gunn. Smith testified that Gunn exclaimed, "[A]ll right, police," in a threatening manner and then retreated to a dark area on the porch of the house. Smith stated that Gunn then armed himself with a steel painting pole that was located on the porch. Smith testified that he heard a "metallic clanging" sound and in a "split second" saw a yellow pole. Smith stated that he backed up and hit "something that blocked" him and prevented him from leaving the porch. Smith testified that he felt trapped on the porch and that he feared for his life. Smith stated that at that point he "ditched" his baton, drew his service weapon, and fired it at Gunn. Smith stated that after he fired his weapon Gunn stumbled off the porch and fell in the yard face up. Gunn was hit with multiple rounds and died from his wounds. Smith testified that other responding officers arrived to the scene within seconds of the shooting. Smith testified that immediately after the ...


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