State v. Smith (In re Smith)

• Decision Date: 11 January 2019
• Docket Number: 1171025
• Citation: 282 So.3d 831
• Parties: EX PARTE Aaron Cody SMITH (In re: State of Alabama v. Aaron Cody Smith)
• Court: Alabama Supreme Court

282 So.3d 831

EX PARTE Aaron Cody SMITH

(In re: State of Alabama

v.Aaron Cody Smith)

1171025

Supreme Court of Alabama.

January 11, 2019

March 29, 2019

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, 88 S.Ct. 1868, 20 L.Ed.2d 889 (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, 265 So. 3d 370 (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, 277 So. 3d 961 (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

...