Facts
and Procedural History
In
February 2021, Johnson was indicted for murder for shooting
and killing Cedric Lee Hubbard. (Johnson's petition, Ex.
A.) On July 5, 2021, Johnson moved the circuit court to hold
"an evidentiary hearing to determine if he is entitled
to immunity from prosecution pursuant to Alabama Code section
13A-3-23." (Johnson's petition, Ex. B.) In his
motion, Johnson alleged that
"multiple witnesses state that [Johnson] and his cousin
Ayindae Brown arrived at Mr. Hubbard's home, at which
time Mr. Hubbard, while armed with a pistol, approached them
and asked them to leave. After Mr. Brown turned his back to
leave, Mr. Hubbard opened fire, and Mr. Johnson returned fire
in defense of himself and Mr. Brown.
"Multiple witnesses also state that Mr. Hubbard was
highly intoxicated and threatened to shoot Ms. Latoya Brown
within an hour prior to this incident.
"While several witnesses state that they did not see who
fired initially, not a single witness interviewed by police
claimed that [Johnson] shot first. Furthermore, none of the
witnesses claimed that either [Johnson] or Mr. Brown
threatened or menaced Mr. Hubbard prior to the
shooting."
(Johnson's
petition, Ex. B (paragraph numbering omitted).)
In its
response to his motion, the State agreed that Johnson was
entitled to the opportunity to prove that he is immune from
prosecution. The State conceded that "no witness
interviewed by law enforcement during its investigation
provided information that [Johnson] fired his weapon
first." (Johnson's petition, Ex. D.) The State
however, argued that Johnson was not immune from prosecution
because "all of the witnesses who state that [Hubbard]
shot his weapon first are related either by blood or by being
in some sort of relationship" with Johnson; that Johnson
"did not have a valid pistol permit at the time of the
shooting" and was, thus, engaged in unlawful activity;
and that Johnson was the initial aggressor and "did not
effectively communicate to [the] Victim his intent to
withdraw from the encounter." (Johnson's petition,
Ex. D.)
On July
22, 2021, Johnson and the State filed a joint stipulation of
fact as to the evidence that would be presented at an
immunity hearing.
The
joint stipulation of fact included an agreement as to what
Dekerria Johnson, Shaliya Brown, Michael Robinson, Ventrelya
Smith, Dezi Jefferson, and Ayindae Brown would testify to at
Johnson's immunity hearing.[1] It also included the following
stipulation:
"Law enforcement recovered two 9mm shell casings from
the scene that [the Alabama Department of Forensic Sciences
('DFS')] determined were fired from Mr.
Robinson's gun.
"Law enforcement recovered six .40 caliber shell casings
that DFS determined were fired from a gun Mr. Kendall Johnson
pawned after this incident.
"Law enforcement recovered eight .45 caliber shell
casings.
"Mr. Cedric Hubbard was shot one time in the chest. A
.40 caliber bullet was recovered from his body. It was too
damaged to compare to the weapon Mr. Kendall Johnson pawned.
"Law enforcement recovered a .25 caliber weapon from Mr.
Hubbard's person. No .25 caliber casings were found at
the scene.
"Law enforcement never recovered a .45 caliber weapon.
"Mr. Kendall Johnson has never had a valid pistol
permit."
(Johnson's petition, Ex. E (paragraph numbering
omitted).)
On July
28, 2021, the parties filed a "Revised Joint Immunity
Hearing Stipulation of Facts," in which they agreed to
the following facts:
"On May 12, 2019, at --- Capri Street, Hubbard and the
mother of one of their children, Latoya Brown, engaged in an
argument regarding their daughter. At some point during the
argument, Hubbard threatened to kill Latoya Brown. Latoya
Brown left the scene and did not return that day. After
leaving, Latoya Brown telephoned her son, Ayindae Brown
(hereinafter, 'Mr. Brown'), and told him about the
argument and the nature of it.
"Later that day, Mr. Brown and [Johnson] drove to
Hubbard's Capri Street residence, along with two
passengers. At some point after arriving at the residence,
Mr. Brown asked Hubbard if he threatened to shoot his mother.
Hubbard admitted that he did. Hubbard then directed Mr. Brown
and [Johnson] to leave.
"Four of the eyewitnesses interviewed by the Montgomery
Police Department (hereinafter, 'MPD'), including Mr.
Brown, state that when Mr. Brown turned to go back to his
vehicle, Hubbard fired a weapon in their
direction.1 [Johnson] -- who was standing in the
street in front of Hubbard's residence and who had
brought a pistol with him to Capri Street -- returned fire
hitting Hubbard and ultimately Hubbard died from one of
[Johnson's] gunshots, which was not contradicted by any
witness.
"Four of the witnesses interviewed by MPD said [Hubbard]
appeared to be intoxicated at the time of the shooting.
"Defendant has never owned a legally valid pistol
permit.
"______
"1The remaining witnesses interviewed by MPD
did not see who fired first."
(Johnson's petition, Ex. M (paragraph numbering
omitted).)
On
October 3, 2021, the circuit court issued an order denying
Johnson's motion for pretrial immunity. (Johnson's
petition, Ex. P.) The circuit court found as follows:
"Having considered the facts as stipulated by the
parties, and the argument of counsel, this Court finds that
[Johnson] has failed meet his burden of proving beyond a
preponderance of the evidence that he is entitled to a
selfdefense immunity from prosecution pursuant to §
13A-3-23(d), Ala. Code 1975. [Johnson] was one member of a
group that initiated the aggression on May 12, 2019.
[Johnson] was unlawfully in possession of a pistol, thus he
was required to retreat from the altercation. The fact that
[Johnson] was armed with a pistol and had no valid permit to
possess it is prima facie evidence of his intent to
commit the murder. Because [Johnson] was not entirely free
from fault, he should not be entitled to the benefit of a
self-defense immunity from prosecution. Accordingly,
[Johnson's] motion is due to be and is hereby
DENIED."
(Johnson's petition, Ex. P.) Johnson then timely
petitioned this Court.
It is
well settled that a petition for a writ of mandamus is the
proper means to challenge a circuit court's denial of a
defendant's claim to
pretrial immunity under § 13A-3-23(d), Ala. Code 1975.
See, e.g., Gordon v. State, 322 So.3d 549,
550 (Ala.Crim.App.2020) (recognizing that "the proper
method for challenging a pretrial ruling denying a motion for
immunity under § 13A-3-23 is to file a petition for a
writ of mandamus").
"'"'"A writ of mandamus is an
extraordinary remedy, and it will be 'issued only when
there is: 1) a clear legal right in the petitioner 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) properly invoked jurisdiction
of the court.' Ex parte United Serv. Stations,
Inc., 628 So.2d 501, 503 (Ala. 1993). A writ of mandamus
will issue only in situations where other relief is
unavailable or is inadequate, and it cannot be used as a
substitute for appeal. Ex parte Drill Parts & Serv.
Co., 590 So.2d 252 (Ala. 1991)."'
"'"[Ex parte Miles, 841 So.2d 242,
243-44 (Ala. 2002)] ([q]uoting Ex parte Empire Fire
&Marine Ins. Co., 720 So.2d 893, 894 (Ala. 1998).)
Moreover, '[t]he burden is on the petitioner who seeks a
writ of mandamus to show that each element required for
issuance of the writ has been satisfied.' Ex parte
Patterson, 853 So.2d 260, 263 (Ala. Civ. App. 2002)
(citing Ex parte Consolidated Publ'g Co., 601
So.2d 423 (Ala. 1992))."
"'Ex parte Serio, 893 So.2d 1148, 1150
(Ala. 2004).'"
Dees v. State, 351 So.3d 567, 570
(Ala.Crim.App.2021) (quoting Harris v. Owens, 105
So.3d 430, 433 (Ala. 2012)).
In his
petition, Johnson argues that the circuit court erred
"when it denied his motion for immunity from prosecution
because multiple witnesses provided that Johnson did not fire
his weapon first but only returned fire after being fired
upon." (Johnson's petition, p. 13.) Johnson contends
that "there are no facts to support the [circuit]
court's conclusion that [he], or a member of his group
[was] the initial aggressor[]" (Johnson's petition
p. 21); that "even if [he] was involved in criminal
activity -- carrying a pistol without a permit -- it would
only require that [he] follow the common law rules on his
duty to retreat" and the stipulated evidence shows that
he satisfied this common-law duty (Johnson's petition, p.
18); and that the circuit court erred in concluding that
Johnson's being armed with a pistol when he had no valid
permit to possess the pistol is prima facie evidence of his
intent to commit the murder. The State, on the other hand,
argues that "the stipulation [of fact] did not describe
in detail what Johnson was doing when the shooting occurred,
failed...
