Smith v. State, CR-17-0825

• Decision Date: 07 September 2018
• Docket Number: CR-17-0825
• Citation: 279 So.3d 1199
• Parties: Latasha Nicole SMITH v. STATE of Alabama
• Court: Alabama Court of Criminal Appeals

279 So.3d 1199

Latasha Nicole SMITH

v.STATE of Alabama

CR-17-0825

Court of Criminal Appeals of Alabama.

September 7, 2018

Rehearing Denied November 9, 2018

Certiorari Denied January 4, 2019

Alabama Supreme Court 1180161

Samuel Ray Holmes, Birmingham, for appellant.

Steve Marshall, atty. gen., and Kristi O. Wilkerson, asst. atty. gen., for appellee.

WINDOM, Presiding Judge.

Latasha Nicole Smith appeals her conviction for murder, see § 13A-6-2, Ala. Code 1975, and her resulting sentence as a habitual felony offender to life in prison.

On the evening of June 6, 2016, Smith and other acquaintances were outside Charlene Doak's mobile home. Donna Green and Keith Fulgham were talking when, "all of a sudden, [Smith] hollered out and said something" to Fulgham.¹ (R. 149.) According to Smith, Fulgham had told others that she had stolen $15 from him and that he was "going to do something to her." (R. 223.) Green, realizing that they were all intoxicated and not wanting any altercation, told Smith that she was taking her home. Green drove Smith to Smith's mobile home, which was a short distance from Doak's mobile home.

When the women arrived at Smith's mobile home, Smith realized that she had left her cell phone at Doak's mobile home. Green told her that the cell phone was "dead" and that they would get it the next day. (R. 151.) Green walked Smith to the door and told Smith's nephew not to let her out of the home because of "the rage she was in." (R. 151.) Green left Smith's house and returned to Doak's mobile home.

Reginald Smith, Smith's son, testified that when his mother returned to the mobile home that night she asked for him to go with her to get her cell phone. Reginald agreed to accompany her. Reginald acknowledged that his mother had a knife in the waistband of her pants. Reginald described his mother as being intoxicated and agitated, cursing and referring to people "messing with her." (R. 178.)

A few minutes after Green had returned to the mobile-home park, she saw Smith and Reginald arriving at Doak's mobile home. Smith walked up to Doak, who was talking with Fulgham, and asked Doak for her cell phone. Doak told Smith that Smith could get her cell phone tomorrow. Green testified that Fulgham walked away and, when he did, Smith and her son "jumped him." (R. 154.) Green testified that she could not see what Smith had in her hand but that "her hand was going up and down." (R. 155.) Fulgham fell to the ground.

According to Reginald, Smith arrived before he did because he had stopped to urinate. When he arrived at Doak's mobile home, he saw that Smith was on the ground and that Fulgham was walking away. Reginald approached Fulgham and tried to get him to leave the area to prevent further conflict. Reginald tripped and fell, though, which caused Fulgham to fall. Smith came over to the men and swung the knife, mistakenly stabbing Reginald in his buttocks. Reginald testified that Fulgham got up and started walking away when Smith started stabbing Fulgham with the knife. Reginald ran back to his house to get his grandmother and his aunt. When Reginald returned to Doak's mobile home, he noticed that his mother's mouth had been cut, which he assumed was likely an accidental, self-inflicted wound.

The State read into evidence the transcript of Smith's testimony from the pretrial immunity hearing. In that hearing, Smith testified to Fulgham's accusation of theft against her and his alleged threat. Smith admitted to arming herself with a knife before returning to Doak's mobile home with her son. Smith stated that when she and Reginald arrived at Doak's mobile home, Reginald went onto the porch to get Smith's phone. Smith testified that she was standing just off the porch when she saw "somebody's hand come straight across [her] lip." (R. 227.) Reginald said, "[Y]ou cut my mama." (R. 227.) Smith fell to the ground; her lip was cut and bleeding. Smith got up, grabbed her knife from her pants, and started stabbing Fulgham, who was on the ground.

In total Fulgham was stabbed 15 times. Fulgham died as a result of multiple stab wounds.

On appeal, Smith argues that the circuit court erred: 1) by denying her motion for immunity from prosecution; 2) by refusing to give a stand-your-ground jury instruction; and 3) by denying her motion for a judgment of acquittal.

I.

Smith argues that the circuit court erred by denying her motion for immunity from prosecution. Specifically, she argues that the preponderance of the evidence presented at her pretrial immunity hearing supported her claim of self-defense; thus, the circuit court should have granted her immunity from prosecution.

The State asserts that by failing to challenge the circuit court's ruling on the pretrial motion for immunity before trial, by way of a petition for a writ of mandamus, Smith waived this claim on appeal.

In Wood v. People, 255 P.3d 1136 (Colo. 2011), the Colorado Supreme Court held that the proper method of challenging a pretrial ruling denying a motion for immunity is to file an extraordinary writ before trial. In arriving at its holding, that Court stated:

"A pretrial determination of ‘make-my-day’ [use of deadly physical force against an intruder] immunity is also similar to a preliminary hearing in that the issues raised in such proceedings are resolved by the fact finder at trial under a higher burden of proof. We have held that the issue of whether the prosecution established probable cause at the preliminary hearing to bind a defendant over for trial becomes moot once the defendant has been found guilty beyond a reasonable doubt. See People v. Nichelson, 219 P.3d 1064, 1067 (Colo. 2009). Similarly, the issue of whether a defendant established the existence of the statutory conditions of ‘make-my-day’ immunity by a preponderance of the evidence becomes moot once a jury concludes the prosecution proved beyond a reasonable doubt that the same statutory conditions did not exist. In short, the jury's verdict subsumes the trial court's pretrial ruling regarding ‘make-my-day’ immunity under section 18-1-704.5."

Wood, 255 P.3d at 1141.

In Harrison v. State, 203 So.3d 126 (Ala. Crim. App. 2015), this Court stated:

" ‘Immune’ is defined as ‘[h]aving immunity; exempt from a duty or liability.’ Black's Law Dictionary (10th ed. 2014). ‘Criminal prosecution’ is defined as ‘[a] criminal proceeding in which an accused person is tried.’ Id. Thus, by using the phrase ‘immune from criminal prosecution’ in § 13A-3-23(d), the legislature intended to exempt from trial an accused who uses force as justified in § 13A-3-23, unless the accused's conduct is ‘determined to be unlawful.’ When read together, those phrases lead to the conclusion that a determination must be made, prior to the commencement of trial, as to whether a defendant's conduct was justified or whether it was unlawful. The only available mechanism for such a determination is a pretrial hearing.

"Submitting the question of immunity to a jury, as the State suggested, would render a defendant's right to immunity illusory. As noted in Ex parte Auburn University, [6 So.3d 478 (Ala. 2008) ], the right to immunity ‘is effectively lost if a case is erroneously permitted to go to trial.’ Additionally, Alabama law has always allowed a defendant to argue self-defense at trial. Thus, treating the right to immunity under § 13A-3-23(d) as an affirmative defense would make that subsection redundant. We must presume that the legislature did not, in enacting § 13A-3-23(d), create a meaningless provision. See Ex parte Wilson, 854 So.2d 1106, 1110 (Ala. 2002), quoting Ex parte Welch, 519 So.2d 517, 519 (Ala. 1987) (‘ "A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, and so that one section will not destroy another unless the provision is the result of obvious mistake or error." ’)."

Harrison, 203 So.3d at 129-30. See Judge Joiner's dissent to this Court's order in Ex parte Watters, 220 So.3d 1088 (Ala. Crim. App. 2015). This Court has considered an immunity issue after a defendant pleaded guilty and raised the claim on appeal. See Malone v. State, 221 So.3d 1153 (Ala. Crim. App. 2016). However, in Malone, the defendant had been deprived of a pretrial hearing on the issue of immunity.

We agree with the State that once a pretrial hearing on the issue of immunity has been conducted and the circuit court has ruled on that issue, but the defendant elects to proceed to trial instead of challenging that ruling by a petition for a writ of mandamus, any claim of immunity from prosecution is moot. See Wood, supra.

II.

Smith argues that the circuit court erred by failing to give a requested jury instruction on Alabama's stand-your-ground law.

" ‘A trial court has broad discretion in formulating its jury instructions, provided they are an accurate reflection of the law and facts of the case. United States v. Padilla-Martinez, 762 F.2d 942 (11th Cir. 1985). However, a "defendant is entitled to have the court instruct the jury on his defense theory, ‘assuming that the theory has foundation in the evidence and legal support.’ United States v. Conroy, 589 F.2d 1258, 1273 (5th Cir. 1979)." United States v. Terebecki, 692 F.2d 1345, 1351 (11th Cir. 1982). In order to determine whether the evidence is sufficient to necessitate an instruction and allow the jury to consider the defense, "we must accept the testimony most favorably to the defendant." (Citations omitted.) United States v. Lewis, 592 F.2d 1282, 1286 (5th Cir. 1979).’

" Coon v. State, 494 So.2d 184, 186 (Ala. Crim. App. 1986)."

George v. State, 159 So.3d 90, 93 (Ala. Crim. App. 2014).

The circuit court charged the jury on self-defense. It, however, denied Smith's request for an instruction on the stand-your-ground law. In denying Smith's request for the instruction, the circuit court found that Smith was engaged in the unlawful activity of public intoxication. Smith argues on appeal that "there was no...