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Notice: This opinion is subject to formal revision before publication in the advance
sheets of Southern Reporter. Readers are requested to notify the Reporter of Decisions,
Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.
1171025
____________________
v.
BOLIN, Justice.
publicity.
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trial court for a change of venue, asserting that the case had
the public and the post was "shared" over 3,000 times. Smith
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argued that the stop of Gunn in this case was similar to the
2018)(table).
1
Judge Griffin stated during that hearing that the
situation involving him and the Montgomery Police Department
regarding his being briefly detained had been resolved to his
satisfaction.
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close of that hearing that Judge Griffin did not find Smith's
that Judge Griffin should recuse himself and that the venue of
3-23, Ala. Code 1975, and dismissing the charge against him
its order denying the motions for recusal and change of venue
petition followed.
Standard of Review
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Discussion
I. Immunity
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part:
"....
"....
2
Smith also cites § 13A-3-27(b)(2), Ala. Code 1975, and
argues that, as a peace officer, he is justified in using
deadly physical force upon another person when he believes
such force is necessary to defend himself, or another person,
from what he reasonably believes to be the use or imminent use
of deadly physical force. It does not appear from the
materials before this Court that Smith presented this argument
to the trial court.
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"....
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2016).
2005).
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Smith testified that the clothing Gunn was wearing matched the
stated that, at that time, Gunn put his hands in the pockets
got out of the vehicle and instructed Gunn to take his hands
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slapped his hand away and stuck his hands back into the
and put his hands back on the hood of the vehicle. At that
point Smith reholstered his Taser and called for backup on his
handheld radio.
vehicle, shoved Smith with his elbow, and ran away. As Smith
chased Gunn he yelled for Gunn to show his hands and to get on
the ground. Smith stated that he saw Gunn move his hands
Taser and fired a Taser cartridge into Gunn's back. Gunn fell
ordered Gunn to put his hands behind his back and that Gunn
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"jutted" his hands under his body and toward his waistband.
cartridge out of his back and got up and ran away. Smith
Taser cartridge into Gunn. Smith stated that the second Taser
him with the Taser. Smith stated that he contacted Gunn on the
running, which Gunn refused to do. At that point the two men
3
A "drive stun" occurs when the Taser contacts directly
to the body without the use of the electrodes and conductive
wire.
4
This house was later determined to be Gunn's neighbor's
house.
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Gunn on his arms and legs. Smith testified that the baton
stated that Gunn then armed himself with a steel painting pole
and that he feared for his life. Smith stated that at that
Gunn stumbled off the porch and fell in the yard face up. Gunn
was hit with multiple rounds and died from his wounds. Smith
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cocaine in his system and that there were paint chips in his
right hand.
first time and Gunn fell to the ground, he went to the ground
with Gunn and the two fought before Gunn regained his footing
swung the paint pole at him and that he ducked before drawing
Gunn swung the paint pole at him. Smith also did not testify
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back on the hood of the vehicle and that Gunn complied with
hearing that Gunn shoved Smith with his elbow just before
with DiNunzio.
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of Gunn and that the trial court made the express finding that
II. Recusal
that it did not find Smith credible -- made in open court and
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Co., 862 So. 2d 595, 604-05 (Ala. 2003) (quoting Ex parte City
Ex parte Adams, 211 So. 3d 780, 788 (Ala. 2016). "The test is
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The media coverage has also included the racial aspects of the
case, and the case itself has given rise to hotly contested
issues that have also been the subject of media coverage. This
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Harrison v. State, 203 So. 3d 126, 131 (Ala. Crim. App. 2015)
(quoting Bunn v. State, 284 Ga. 410, 413, 667 S.E.2d 605, 608
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court and in the presence of the media that he did not find
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State v. Moore, 988 So. 2d 597, 601 (Ala. Crim. App. 2007)
Laatsch, 299 Wis. 2d 144, 150, 727 N.W.2d 488, 491 (Wis. 2007)
(emphasis added)).
(Ala. 2003), and argues that remarks made by the trial judge
that express strong views about a party will not call for a
judge's recusal "'so long as those views are based on his own
remarks as follows:
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"(Petition at 30.)
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Smith has also asked this Court to direct the trial court
parte Fowler, 574 So. 2d 745 (Ala. 1990), and its progeny, the
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criminal cases. Although this Court has not been called upon
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well as the fact that the totality of the facts and the
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prejudice.
members of the media who were present, that he did not find
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to the recusal issue above, a news report that the trial judge
evident where the trial judge has already stated that he does
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Montgomery County, and it seems likely to generate continued
Conclusion
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MENDHEIM, Justice (concurring in part and dissenting in part).
Parts II and III of the main opinion, which address the trial
5
The nearest analogy is a criminal defendant's right to
a pre-admission hearing to determine whether his or her
purported confession was voluntary and, if the trial court
rules adversely to the defendant on that issue, the right to
submit the issue of voluntariness of the confession to the
jury. See Ex parte Jackson, 836 So. 2d 973, 974-76 (Ala.
2001); Ex parte Singleton, 465 So. 2d 443, 445-46 (Ala. 1985).
However, that procedure was judicially created.
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of the evidence that he or she is immune from criminal
6
I note that it is common for trial judges to make factual
and credibility determinations before trial in criminal
proceedings, such as, for example, for purposes of suppression
hearings, search-and-seizure warrants, bond proceedings, and
preliminary hearings.
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counsel opposed to question the impartiality of the judge."'"
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short-tempered judge's ordinary efforts at courtroom
administration -- remain immune.
"....
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impropriety.' Ex parte Duncan, 638 So. 2d 1332,
1334 (Ala. 1994). 'Adverse rulings during the
course of proceedings are not by themselves
sufficient to establish bias and prejudice.'
Hartman v. Board of Trustees of the University of
Alabama, 436 So. 2d 837, 841 (Ala. 1983). At the
conclusion of the July 26, 2018, hearing, Judge
Griffin, in explaining his reason for denying
Smith's motion for immunity from prosecution, stated
that he did not find Smith's testimony to be
credible. This statement was clearly a judicial
statement. In order to mandate the disqualification
of Judge Griffin, Smith must show this statement was
made with personal bias. See Thomas v. State, 611
So. 2d 416 (Ala. 1992). He has not done so. Smith
has therefore failed to meet his heavy burden of
establishing the prerequisites for the issuance of
a writ of mandamus regarding the recusal of Judge
Griffin."
hearing, which was made on Smith's motion and which the main
of Gunn and that the trial court made the express finding that
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to the relief sought."). As stated by the Court of Criminal
adverse legal ruling by the trial judge, Smith has the heavy
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personal bias, on the part of Judge Griffin against Smith.7
7
For instance, Judge Griffin never cut the parties off
during their arguments or put them on unreasonable time
limits. Instead, it appears that he provided the parties with
whatever time and opportunity they needed to present their
arguments and to respond to the arguments of the opposing
party. Likewise, the record provides no basis for even
concluding that Judge Griffin was disrespectful to Smith or
his counsel, much less that he acted in a manner that
reflected "deep-seated and unequivocal antagonism that would
render fair judgment impossible." Liteky, 510 U.S. at 556.
8
Notably, Smith's attorneys did not object or voice any
concern of bias when Judge Griffin made the statement as to
Smith's credibility they now claim requires Judge Griffin's
recusal.
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recusal absent some additional evidence of personal bias by
Ex parte Smith (Ms. 1161024, Feb. 23, 2018), ___ So. 3d ___
2017), ___ So. 3d ___ (Ala. Crim. App. 2017) (table) (The
"The mere fact that Judge Griffin posted on social media about
judge's recusal. But that is not the case here. Smith has
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Judge Griffin's interaction with a Montgomery Police Officer
posts:
(Emphasis added.)
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might reasonably question the judge's impartiality ...."). In
applicable law and the duties of the judge. When viewed from
against Smith.
Montgomery County, i.e., Part III. First, Smith has not asked
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us to overrule the precedent establishing that a denial of a
745 (Ala. 1990). Consequently, the State has not had the
& Caldwell, P.C., [Ms. 1170162, Aug. 31, 2018] ___ So. 3d ___,
9
This Court has held that review of a change-of-venue
challenge in a criminal proceeding is not available through
mandamus but must be pursued through direct appeal. Ex parte
Fowler, 574 So. 2d 745 (Ala. 1990). As to the main opinion's
concern with the distinction between the use of the writ of
mandamus in civil cases and criminal cases, I note that the
trend of "liberal enlargement of the use of the writ [of
mandamus]" was used to justify the use of the writ to address
the issue of venue in civil cases. Ex parte Weissinger, 247
Ala. 113, 118, 22 So. 2d 510, 515 (1945). This Court did not
follow that trend for criminal cases in Ex parte Fowler.
Based on the distinctions between venue in civil cases and
criminal cases as hereinafter discussed, and the lack of any
argument from the parties as to the reasons for ignoring those
distinctions, I am unwilling to question the viability of
Ex parte Fowler.
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___ (Ala. 2018) (Mendheim, J., dissenting); see also, e.g.,
(Ala. 2006).
15-2-20 provides:
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"(a) Any person charged with an indictable
offense may have his trial moved to another county,
on making application to the court, setting forth
specifically the reasons why he cannot have a fair
and impartial trial in the county in which the
indictment is found. The application must be sworn
to by him and must be made as early as practicable
before the trial, or it may be made after conviction
upon a new trial being granted.
but where venue would not otherwise be proper and (2) the
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provides that, in that event, the trial will be moved to a
1901, § 6.
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for a pretrial review for venue issues, it could have so
10
See Ala. Const. 1901, § 6; see also Ala. Code 1975, §
15-2-2 ("Unless otherwise provided by law, the venue of all
public offenses is in the county in which the offense was
committed.").
11
See Ala. Code 1975, § 15-2-6 ("When an offense is
committed partly in one county and partly in another or the
acts or effects thereof constituting or requisite to the
consummation of the offense occur in two or more counties,
venue is in either county."); Ala. Code 1975, § 15-2-7 ("When
an offense is committed on the boundary of two or more
counties or within a quarter of a mile thereof or when it is
committed so near the boundary of two counties as to render it
doubtful in which the offense was committed, venue is in
either county."); and Ala. Code 1975, § 15-2-8 (providing
that, for a few specified crimes, such as kidnapping, "venue
is in the county in which the offense was committed or in any
other county into or through which the person upon whom it was
committed may have been carried in the commission of the
offense").
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the county of the location of the event causing the lawsuit is
before us, I do not believe that Smith has met his high burden
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an unarmed person in the line of duty) and that there have
been news media reports of the case. Under our existing law,
Montgomery County.
See, e.g., Powell v. State, 796 So. 2d 404, 417 (Ala. Crim.
State, 717 So. 2d 827, 833 (Ala. Crim. App. 1996), quoting in
turn Oryang v. State, 642 So. 2d 979, 983 (Ala. Crim. App.
1993))), aff'd, 796 So. 2d 434, 435 (Ala. 2001) ("In his brief
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thoroughly addressed and properly decided each of these
issues."). Many of the prior cases from the Supreme Court and
CR-13-0780, Feb. 9, 2018] ___ So. 3d ___, ___ (Ala. Crim. App.
2018). See also Kuenzel v. State, 577 So. 2d 474, 483 (Ala.
defendant's] trial had such fixed opinions that they could not
Yount, 467 U.S. 1025, 1035, 104 S. Ct. 2885, 2891, 81 L. Ed.
read and considered the record, together with the briefs and
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arguments of counsel, this Court has concluded that the
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I further note that our caselaw classifies two types of
before the venire has been assembled, we may consider only the
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United States Supreme Court's decision in Skilling v. United
where the offenses occurred" and the case was to be tried, 199
makeup of the county. Smith has not told us the method the
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jury service.12 Indeed, Smith failed to offer any evidence as
the man shot and killed by Smith. In the article the family
12
See, e.g., Ala. Code 1975, § 12-16-57 (providing that
county master list of potential jurors "may include all
registered voters, persons holding drivers' licenses and
registering motor vehicles, and may include other lists, such
as lists of utility customers and persons listing property for
ad valorem taxation"); Ala. Code 1975, § 12-16-145 (providing
a procedure for judges of a circuit to adopt an "alternate
juror selection and qualification plan").
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McDermott, to the effect that Smith is innocent and that Smith
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expected to arouse the interest of the public in the vicinity,
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