In re Johnson

384 So.3d 52

EX PARTE Kendall Tewayne JOHNSON

(In re: State of Alabama

v.Kendall Tewayne Johnson)

CR-21-0117

Court of Criminal Appeals of Alabama.

March 24, 2023

Aylia McKee, chief public defender, and Glenn A. Langner II, asst. public defender, Office of the Public Defender for the 15th Judicial Circuit, Montgomery, for petitioner.

Steve Marshall, att’y gen., and D. Riggs Walker, asst. atty. gen., for respondent.

PER CURIAM.

Kendall Tewayne Johnson has petitioned this Court for a writ of mandamus order- ing the Montgomery Circuit Court to grant his motion for pretrial immunity under § 13A-3-23(d), Ala, Code 1975. Johnson argues that he is entitled to mandamus relief because, he says, the circuit court’s decision that he is not immune from criminal prosecution under § 13A-3-23(d) is based on a misunderstanding of Alabama law and is not supported by the facts as stipulated to by the parties. The State argues that Johnson is not entitled to mandamus relief because, it says, Johnson did not satisfy his burden of proving that he is entitled to immunity under § 13A-3-23(d). For the following reasons, we deny the writ.

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 pennit.

"_________

"¹ The 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 self-defense 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 hisintent 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.

Standard of Review

[1–4] 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 Hanis v. Owens, 105 So. 3d 430, 433 (Ala. 2012)).

Discussion

[5] 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 to...