Ex parte Smith

Montgomery Circuit Court, CC-16-1397; Court of Criminal Appeals, CR-19-0428

PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS

MITCHELL, JUSTICE.

WRIT QUASHED. NO OPINION.

Sellers, Mendheim, and Stewart, JJ., concur.

Bryan, J., concurs specially, with opinion.

Mitchell, J., concurs specially, with opinion, which Bolin, J., joins.

Shaw and Wise, JJ., recuse themselves.

BRYAN, Justice (concurring specially).

I concur in the decision to quash the writ. However, I briefly note the failure of Aaron Cody Smith's counsel "to challenge the adequacy of specific-intent evidence [at trial,] in a posttrial motion, on direct appeal, or in his certiorari petition." __So. 3d at__ (Mitchell, J., concurring specially). That omission appears to be problematic and perhaps raises a serious question about the effectiveness of Smith's counsel.

MITCHELL, Justice (concurring specially).

I concur in the decision to quash the writ of certiorari because Aaron Cody Smith has failed to preserve any viable legal theories for our review. That said, after reviewing the parties' briefs and the Court of Criminal Appeals' unpublished memorandum issued below in Smith v. State (No. CR-19-0428, Feb. 4, 2022), __So. 3d__ (Ala.Crim.App.2022) (table), I have serious concerns about Smith's conviction and the adequacy of his counsel. I write to explain those concerns and to note that Smith may be able to seek postconviction relief under Rule 32, Ala. R. Crim. P.

I.

It is rare to read an appellate-court decision that simultaneously affirms a defendant's conviction while also describing as "largely undisputed" a factual record that seems more consistent with the defendant's innocence than his guilt. But the Court of Criminal Appeals' memorandum in this case does just that.

According to the Court of Criminal Appeals, the undisputed evidence presented at trial tells the following story.^[1] Smith was an officer with the Montgomery Police Department and was working night patrol in a high-crime area of Montgomery on February 25, 2016. Smith's supervisor had ordered him "to stop anything and everything that moves in [Smith's] district" in an effort to end a string of property crimes that had been taking place during Smith's shift.

Around 3:00 a.m., Smith drove past a man named Gregory Gunn. As soon as Gunn noticed Smith's marked police car, he began walking away quickly, with his hands concealed in his pockets. Smith got out of his car and instructed Gunn to take his hands out of his pockets and to place them on the hood of the vehicle.^[2] Gunn complied, and Smith began

to perform a pat-down to ensure that Gunn was not armed. When Smith moved his right hand toward the front of Gunn's waistband, he felt a hard object that he believed could be a gun. Before Smith could remove the object, Gunn rotated toward Smith and "swatted" his hand away. Smith pushed Gunn against the car to prevent him from "reach[ing] whatever it was that he had in his waistband" and told Gunn that he was under arrest.

Gunn began shouting at Smith, at which point Smith pulled out his Taser and called for backup. After he had finished radioing for backup, Smith holstered his Taser and put his hand back on Gunn's waist. At that point, Gunn sidestepped toward the front of the car, shoved Smith, and took off running. Smith pursued Gunn on foot, instructing Gunn to "[s]how me your hands and get on the ground," but Gunn ignored that order and continued to flee.

As he was fleeing, Gunn put his hands in his pockets, near the area of his pants where Smith had felt the hard object. Fearing that Gunn was about to reach for a weapon, Smith deployed his Taser on Gunn. The Taser caused Gunn to falter, but it did not stop him from running away. Smith discharged his Taser a second time, but again it was ineffective.

After the third discharge, Gunn said: "Fuck your Taser, Bitch." Smith discharged his Taser a fourth and final time -- again without effect -- and then reholstered it.

Smith chased Gunn as Gunn ran up the driveway of a nearby house, where a family was asleep inside. Smith attempted to subdue Gunn by using his collapsible baton, but Gunn continued to run, heading up the driveway and onto the front porch of the house. When Gunn reached the porch, he yelled: "All right, Police[!]" -- a statement that Smith interpreted as a threat meaning: "All right … I've got something for you." Gunn then moved to a dark area of the porch and grabbed a "clanking" metal object, which turned out to be a painter's pole covered with yellow paint. Gunn "bladed toward" Smith, brandishing the pole in his hand.

When Smith saw Gunn charging toward him, he holstered his baton, retrieved his firearm, and began backing away. Gunn raised the pole and lunged at Smith, who was backed into a support column and felt "trapped" on the porch. "Because Gunn had armed himself and because Smith 'feared that [his] life was in jeopardy, as well as any other person that came in contact with Mr. Gunn, that their life was in jeopardy,'" Smith pulled out his firearm and "'began firing toward the yellow pole

and [Gunn's] hand.'" Gunn stumbled backward and fell to the ground. Smith went over to check on him and called for medical assistance, but the medics were unable to save Gunn's life.

An autopsy confirmed, as far as possible, Smith's version of events. It revealed that Gunn had been hit with multiple bullets that were concentrated on and around his weapon arm, that he had been on cocaine at the time of his death, and that there were yellow paint chips embedded in the hand that Smith had identified as Gunn's weapon hand.

II.

The shooting inspired numerous protests, which -- like the shooting itself -- received "frequent and widespread media coverage." Ex parte Smith, 282 So.3d 831, 834 (Ala. 2019). As a result, after Smith was arrested and indicted for murder, this Court ordered the case to be transferred to another venue. Id. at 844. He was ultimately tried in the Dale Circuit Court.

The jury was instructed on both intentional murder, § 13A-6-2, Ala. Code 1975, and heat-of-passion manslaughter, § 13A-6-3(a)(2), Ala. Code 1975, as a lesser-included offense. The jury returned a verdict of "guilty of [heat-of-passion] Manslaughter," which "indicated that the jury found

the defendant, [Smith], was guilty of intentionally causing the death of Mr. Gunn," but that the intent was less culpable because it was "caused in the sudden heat of passion caused by provocation recognized by law." C. 622-23.

III.

Because of the posture in which this case comes to us, this Court is not in a position to conduct a de novo review of the full trial record. But if it is true, as the Court of Criminal Appeals stated, that the facts described above are "largely undisputed," then it is difficult to understand how a reasonable, properly instructed jury could have convicted Smith.

As noted above, the jury was charged on only two crimes: intentional murder and heat-of-passion manslaughter, both of which required the prosecution to prove beyond a reasonable doubt that Smith acted with the specific intent to kill Gunn. § 13A-2-2(1), Ala. Code 1975. Yet the record, as described in the memorandum below, does not seem to indicate -- let alone establish beyond reasonable doubt -- that Smith's specific intent was to kill Gunn rather than to disable Gunn's attack. If

anything, the facts recited by the Court of Criminal Appeals strongly suggest the opposite conclusion.

According to the Court of Criminal Appeals' summary of the evidence, Smith exhausted every available method of nonlethal force in his attempt to subdue Gunn and resorted to discharging his firearm only after all of those efforts had failed and only when Gunn was coming at Smith with a weapon (while trespassing on the front porch of an occupied house). When Smith finally did fire at Gunn, he aimed "toward the yellow pole and [Gunn's weapon] hand," rather than trying to hit Gunn's vital organs. In addition, another officer confirmed that, once Gunn was incapacitated, Smith went over to Gunn's side to check on him -- at obvious risk to Smith's own physical safety -- and called...