Born v. State

• Decision Date: 11 September 2020
• Docket Number: CR-18-0605
• Citation: Born v. State, 331 So.3d 626 (Ala. Crim. App. 2020)
• Parties: Supreme BORN v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

331 So.3d 626

Supreme BORN

v.STATE of Alabama

CR-18-0605

Court of Criminal Appeals of Alabama.

September 11, 2020

William K. Bradford of Bradford Ladner, LLP, Mobile, for appellant.

Steve Marshall, atty. gen., and Robin D. Scales, asst. atty. gen., for appellee.

On Return to Remand ^*

COLE, Judge.

Supreme Born appeals his convictions for one count of attempted murder, a violation of §§ 13A-6-2 and 13A-4-2, Ala. Code 1975, two counts of discharging a firearm into an occupied vehicle, a violation of § 13A-11-61, Ala. Code 1975, and one count of discharging a firearm into an unoccupied vehicle, a violation of § 13A-11-61, Ala. Code 1975, and his resulting sentences.

Procedural History

In February 2018, Born was indicted for two counts of discharging a firearm into an occupied vehicle, one count of discharging a firearm into an unoccupied vehicle, and one count of attempted murder. The charges were joined for a single trial, without objection. The charges arose out of a gun battle in the parking lot of a Birmingham retail meat market.

In June 2018, Born filed a motion seeking immunity from prosecution on the ground that he acted in self-defense. After conducting an evidentiary hearing, the circuit court denied the motion. Born did not file a petition for a writ of mandamus challenging that decision.

In September 2018, Born was tried before a jury. The jury returned guilty verdicts on all four charges. The trial court entered judgments in accordance with the jury's verdicts. On December 11, 2018, the trial court held a sentencing hearing and sentenced Born to "a term of life [in prison] with the possibility of parole," with the sentence to "run concurrently with all cases." (C. 36, 70, 104, 139; R. 471-72.)

On January 10, 2019, Born filed a motion for a judgment of acquittal or, in the alternative, for a new trial. The trial court denied the motion on January 17, 2019. Born appealed.

On October 15, 2019, this Court issued an order holding that Born's life sentences exceeded the maximum authorized by law with respect to the convictions for discharging a firearm into an occupied vehicle and the conviction for discharging a firearm into an unoccupied vehicle, and remanding the case to the trial court for it to resentence Born with respect to those convictions.

On November 12, 2019, on remand, the trial court held a sentencing hearing and resentenced Born to 20 years’ imprisonment on each of the convictions for discharging a firearm into an occupied vehicle, and to 10 years’ imprisonment on the conviction for discharging a firearm into an unoccupied vehicle, all to run concurrently. On January 6, 2020, the case was resubmitted on return to remand.

Facts

At trial, Edward Brown testified that he was a licensed contractor. Brown had hired Born to work for him on several jobs, but Born was not a regular employee. During Easter weekend of 2017, Brown was in Sumter County visiting relatives when Born telephoned him several times demanding that Brown pay him money that he said Brown owed him.

On the following Monday, a man named Alphonzo, who owned a vegetable and fruit stand located in the parking lot of Discount Meat Market, called Brown and told him that Born was saying that Brown owed him money. Brown did not think he owed Born anything, but decided he would take some money to Born to avoid problems. Brown testified that he and his friend, Taurus Hawkins, drove to the meat market in Brown's truck to meet with Born.

According to Brown, when he arrived at the meat market, he saw Born and Alphonzo standing at the vegetable and fruit stand. Brown stopped his truck so that Born was standing near the passenger side of Brown's truck. Brown testified that, as he got out of the truck, he saw Born reaching for a pistol in his waistband. Brown asked Born if he needed a pistol to talk to him about money. Born immediately began firing shots at Brown, initially striking the windshield of Brown's truck. Born then fired shots that struck the passenger door, the rear window, and the tool box of Brown's truck. When Born stumbled and fell behind the truck, Brown reached inside his truck and grabbed his shotgun from the backseat.¹ He never fired the shotgun because he realized that it had no shells in it.

Brown ran across the street, and when he got to the walkway in the middle of the street he noticed that he had been shot in the leg. Once he was on the other side of the street, he looked back and saw that Born had two pistols and was shooting with both hands. Brown testified that at some point he saw that another man wearing an apron was also shooting at him.

Brown's friend, Taurus Hawkins, drove Brown to the University of Alabama at Birmingham Hospital in Brown's truck. At the hospital, Brown learned that he had been shot in the leg, in his wrist, and in the stomach area. He testified that doctors did not perform surgery to remove the bullet in his leg because it would not be safe to do so.

The State presented evidence indicating that two vehicles, in addition to Brown's truck, had been shot into and damaged. An evidence technician from the Birmingham Police Department also noted a bullet strike on the vegetable and fruit stand where an elderly woman had been sitting. At the scene, evidence technicians collected fourteen .40 caliber shell casings and fourteen 9 mm casings. All of the .40 caliber shells had been fired from the same gun; 12 of the 9 mm shells had been fired from one gun, and 2 had been fired from a different gun.

Detective Joylyn Craig, of the Birmingham Police Department, testified that, a few days after the shooting, she viewed a surveillance video from the meat market, but stated that the video could not be located for trial. She testified that the quality was enough to see people, but not to recognize faces. She saw two people shooting, one who came out of the meat market, and one who was standing at the passenger side of Brown's truck.

The defense presented testimony of Marvin Nickerson, who testified that Brown was the initial aggressor. Nickerson, who was employed at the meat market, testified that he walked out of the store to the parking lot to take a break and saw Born, whom he knew, standing in the parking lot talking to the vegetable and fruit vendor. Within minutes, a green truck drove up, circled the parking lot, and stopped near Born. Nickerson testified that the driver of the truck (Brown) got out, looked over the top of the truck, pulled out a short black shotgun that did not have a handle, and began shooting at Born. Thereafter, Born reached underneath his shirt and pulled out a gun and started firing back. The man from the truck walked backward away from the truck onto Jefferson Avenue, and began running while still firing his gun. Born was also firing his gun in the man's direction as the man was running behind the trees across the street. The shooting back and forth continued for several minutes. Nickerson testified that Born's son came out of the meat market and fired a shot.

Standard of Review

" ‘In determining the sufficiency of the evidence to sustain the conviction, this Court must accept as true the evidence introduced by the State, accord the State all legitimate inferences therefrom, and consider the evidence in the light most favorable to the prosecution.’ Faircloth v. State, 471 So. 2d 485, 489 (Ala. Cr. App. 1984), affirmed, Ex parte Faircloth, [471] So. 2d 493 (Ala. 1985).

" ‘....

" ‘ "The role of appellate courts is not to say what the facts are. Our role ... is to judge whether the evidence is legally sufficient to allow submission of an issue for decision to the jury." Ex parte Bankston, 358 So. 2d 1040, 1042 (Ala. 1978). An appellate court may interfere with the jury's verdict only where it reaches "a clear conclusion that the finding and judgment are wrong." Kelly v. State, 273 Ala. 240, 244, 139 So. 2d 326 (1962).... A verdict on conflicting evidence is conclusive on appeal. Roberson v. State, 162 Ala. 30, 50 So. 345 (1909). "[W]here there is ample evidence offered by the state to support a verdict, it should not be overturned even though the evidence offered by the defendant is in sharp conflict therewith and presents a substantial defense." Fuller v. State, 269 Ala. 312, 333, 113 So. 2d 153 (1959), cert. denied, Fuller v. Alabama, 361 U.S. 936, 80 S. Ct. 380, 4 L. Ed. 2d 358 (1960).’ Granger [v. State], 473 So. 2d [1137,] 1139 [(Ala. Crim. App. 1985)].

"... ‘Circumstantial evidence alone is enough to support a guilty verdict of the most heinous crime, provided the jury believes beyond a reasonable doubt that the accused is guilty.’ White v. State, 294 Ala. 265, 272, 314 So. 2d 857, cert. denied, 423 U.S. 951, 96 S. Ct. 373, 46 L. Ed. 2d 288 (1975). ‘Circumstantial evidence is in nowise considered inferior evidence and is entitled to the same weight as direct evidence provided it points to the guilt of the accused.’

Cochran v. State, 500 So. 2d 1161, 1177 (Ala. Cr. App. 1984), affirmed in pertinent part, reversed in part on other grounds, Ex parte Cochran, 500 So. 2d 1179 (Ala. 1985)."

White v. State, 546 So. 2d 1014, 1017 (Ala. Crim. App. 1989).

Discussion

On appeal, Born argues (1) that the evidence was insufficient to prove that he shot into an occupied vehicle owned by Zerry Robinson; (2) that the evidence was insufficient to prove that he shot into an unoccupied vehicle owned by Ashlai Parker; (3) that the evidence was insufficient to prove that he shot into an occupied vehicle owned by Edward Brown; (4) that the evidence was insufficient to prove the offense of attempted murder of Edward Brown; (5) that his sentence of life imprisonment violates the Eighth Amendment to the United States Constitution; and (6) that the trial court erred in denying his pretrial motion for immunity and that this Court should overrule its prior precedent holding that an immunity claim becomes moot after a trial and conviction.

I. Sufficiency of the Evidence

Insufficient Evidence: Case No. CC-18-358 Shooting into An...