Ex parte Aaron Cody Smith. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS

Rel: December 9, 2022




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         SUPREME COURT OF ALABAMA
                             OCTOBER TERM, 2022-2023

                                _________________________

                                        1210322
                                _________________________

                             Ex parte Aaron Cody Smith

   PETITION FOR WRIT OF CERTIORARI TO THE COURT OF
                  CRIMINAL APPEALS

                               (In re: Aaron Cody Smith

                                                  v.

                                     State of Alabama)

                   (Montgomery Circuit Court, CC-16-1397;
                    Court of Criminal Appeals, CR-19-0428)
1210322

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.




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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.




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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Criminal Appeals' unpublished memorandum issued below in Smith v.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.




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     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


     1Given  the procedural 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. Some additional facts and procedural history can be found in this
Court's prior opinion, Ex parte Smith, 

, 837 (Ala. 2019). I
mention those additional facts and history only to the extent that they
are relevant here.

     2The  Court of Criminal Appeals does not mention this fact in its
memorandum, but this Court noted in a prior opinion in this case that
Gunn was wearing a dark hoodie at the time, which Smith testified
matched the clothing worn by an individual who had dropped a stolen
laptop while running from Smith the previous week. Ex parte Smith, 

, 837 (Ala. 2019).
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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.


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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


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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, 

, 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. 

. 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


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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




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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 for emergency

medics to assist Gunn.     Those facts, if accurate, 3   seem far more


     3The    State does not argue that the Court of Criminal Appeals
misstated or mischaracterized the facts. The State does raise an
additional point not discussed in the memorandum below, which is that
-- according to the State -- Smith's descriptions of his encounter with
Gunn "changed wildly" over time. State's brief at 43. But the only
examples the State provides of such "wild[]" changes are that: (1) Smith
initially recounted having wrestled with Gunn but then, at his immunity
hearing, stated that he did not wrestle with Gunn; (2) Smith stated
during his immunity hearing that Gunn swatted his hand during the pat-
down, but had not mentioned that detail in his earlier statements; and
(3) Smith alternated between describing Gunn's actions with the pole as
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consistent with a specific intent to disable Gunn's attack than with a

specific intent to kill.

      Of course, Smith may have known that firing at Gunn was likely to

kill him, but both intentional murder and heat-of-passion manslaughter

are intent-based crimes, not knowledge-based crimes. It was therefore

not enough for the State to prove that Smith was aware that shooting

Gunn could or would have killed him; rather, the prosecution was

required to prove beyond reasonable doubt that Smith's conscious

purpose was to kill Gunn. See § 13A-2-2(1) (defining what it means to

commit a crime "intentionally"); see also Varnado v. State, [Ms. CR-18-

0673, July 9, 2021] ___ So. 3d ___, ___ (Ala. Crim. App. 2021) (McCool, J.,

concurring in part and dissenting in part) (emphasizing that specific

intent to shoot does not necessarily imply specific intent to kill). The




"sw[i]ng[ing] it" (first statement), "raising it" (second statement), and
"coming at him" with it (immunity hearing). Only the first example
involves an actual inconsistency -- and in that instance, Smith revised
his story in a way that was less favorable to his defense, not more. And
even on the version of events most favorable to the State, it appears as
though Smith's actions were at least as consistent with a specific intent
to disable Gunn's attack as with specific intent to kill. Cf. Estate of Logan
v. City of S. Bend, 

 (7th Cir. 2022) (Easterbrook, J.).
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evidence described by the Court of Criminal Appeals does not indicate

that the prosecution met that burden.

      Yet Smith's briefs to the Court of Criminal Appeals and his

certiorari petition to this Court contain no mention of the adequacy of

intent-based evidence. Instead, Smith's briefs and petition focus on the

adequacy of provocation evidence: according to Smith's appellate briefs

and petition, the problem with his conviction was that "there had been

no evidence of provocation" submitted to the jury. Petition at 4 (emphasis

in original).   In other words, Smith argues that the jury was wrong to

hold that Gunn provoked Smith's shooting.

      There are two glaring problems with Smith's no-evidence-of-

provocation theory. The first is that it seems obvious that the jury did

hear evidence of provocation, and plenty of it. As just described, the

evidence presented at trial shows that Gunn wielded a metal pole against

Smith. It is difficult to imagine conduct more "provoking" than attacking

or attempting to attack another person with a weapon.

      The second problem with Smith's no-evidence-of-provocation theory

is that the finding of provocation helped Smith. Provocation is the only

difference between the crime of intentional murder and the lesser-


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included crime of heat-of-passion manslaughter; it serves as a mitigating

factor that reduces what would otherwise be murder to the less serious

offense of manslaughter.4       In other words, if not for the jury's

determination that Gunn provoked the shooting, Smith would have been

convicted of a more serious crime and would have been eligible for a

longer term of imprisonment. It is unclear why Smith focused his appeal

on a theory that, even if true, could not help him.

     The most puzzling aspect of Smith's representation, however, is the

total failure to challenge the adequacy of specific-intent evidence in a

posttrial motion, on direct appeal, or in his certiorari petition. If the




     4Smith   seems to assume (without explanation or citation to any
authority) that provocation is an "element" of manslaughter and that,
accordingly, the State bore the burden of proving provocation beyond
reasonable doubt. I am unaware of any authority supporting that
assumption. Provocation was not an element of voluntary manslaughter
at common law, see People v. Mendoza, 

, 

 (2003), and nothing in the structure or language of Alabama's
manslaughter statute indicates that our Legislature has altered the
common-law role of provocation, see § 13A-6-3, Ala. Code 1975 (defining
the elements of heat-of-passion manslaughter as coextensive with the
elements of murder, and then describing provocation as an "except[ion]"
to the rule that those elements constitute murder). It also would be
unusual for a criminal statute to assign to the prosecution the burden of
proving that a mitigating factor applies, since it is the defendant, not the
prosecution, whose interests are served by a finding of mitigation.

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Court of Criminal Appeals' summary of the record is accurate, then

Smith's failure to litigate the adequacy of specific-intent evidence is,

frankly, bizarre. It may be the most astonishing failure I've ever seen in

a criminal case.5

     The filings below suggest one possible explanation for that failure:

Smith's posttrial and appellate counsel seem to have believed that a

conviction for heat-of-passion manslaughter did not require the jury to

find that Smith committed any "intentional act." C. 661-62; see also C.

646 (arguing that the conviction for "manslaughter rather than murder

… show[s] that the Defendant's [sic] did not act with intent"). That

assumption, however, is plainly incorrect. Our caselaw could not be

clearer in rejecting the "misunderst[anding] that a conviction for




     5Smith's   merits brief before this Court did -- for the first time --
challenge the lack of specific-intent evidence, but by that point it was too
late. As the State's response brief points out, Smith repeatedly failed to
raise a specific-intent challenge in the proceedings below and in his
petition, and he has therefore forfeited the issue. While there are rare
circumstances in which appellate courts have overlooked or forgiven a
party's failure to preserve an issue, see 9C Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 2588 (3d ed. 2008), Smith
never argued in either his opening brief or reply that such an exception
to our normal practice would be appropriate here. In fact, Smith did not
file a reply brief at all (another shocking failure, especially in a case of
this magnitude).
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provocation manslaughter implies a less culpable state of mind by the

perpetrator than a conviction for intentional murder." Carter v. State,

 (Ala. 2002). As Carter emphasized -- and as the text

of §§ 13A-6-2 and -3 make clear -- a conviction for heat-of-passion

manslaughter requires the same state of mind as a conviction for

intentional murder: specific intent to kill. Id. at 815. That Smith's

attorneys were apparently unaware of Carter's holding (and of the plain

text of the Criminal Code) raises serious reasons to doubt the adequacy

of his legal counsel.

     There are other reasons to be concerned too. For example, Smith's

attorneys never argued in a posttrial motion or on direct appeal that the

prosecution failed to meet its burden of proving that Smith did not act in

self-defense, even though the fact pattern described above seems to

indicate that -- leaving aside the specific-intent issue -- Smith's actions

were consistent with self-defense under § 13A-3-23, Ala. Code 1975. 6


     6The   State's brief to this Court argues that Smith could not have
prevailed on a self-defense theory because the jury was "presented with
the testimony of Alabama Law Enforcement Agency Special Agent
Anthony Green that Smith did not have reasonable suspicion to stop
Gunn under Terry v. Ohio, 

 (1968)," and the jury reasonably
concluded, based on that testimony, that Smith was the initial aggressor.
State's brief at 44. But the State's argument on this point highlights yet
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     In light of these apparent deficiencies, Smith may be eligible for

postconviction relief.    Rule 32 of the Alabama Rules of Criminal

Procedure allows an individual convicted of a criminal offense to seek a

new trial or other appropriate relief if his original conviction was the




another problem with the proceedings below: expert witnesses are not
permitted to instruct jurors on questions of law or to " 'give an opinion
that constitutes a legal conclusion.' " DISA Indus., Inc. v. Bell, 

 (Ala. 2018) (citation omitted). Moreover, it appears from the
State's description that Green's testimony may have misstated the law.
A police officer is justified in conducting a Terry stop so long as he has
reasonable suspicion of unlawful conduct. State v. Hill, 

 (Ala. 1996). Factors commonly considered in assessing the
reasonableness of a Terry stop include: whether the stopped individual
matches the description of a suspected criminal, United States v. Gibson,

 (11th Cir. 1995); whether the area where the stop
occurred was a high-crime area or one "of expected criminal activity,"
Illinois v. Wardlow, 

 (2000); whether the suspicious
activity occurred "late at night or early in the morning," United States v.
McHugh, 

 (10th Cir. 2011), accord, United States v.
Davis, 

 (11th Cir. 2017); whether the individual
engaged in "unprovoked flight upon noticing the police," Wardlow, 

; and whether the individual made furtive gestures or
suspicious movements, such as concealing his hands or an object in his
clothing, Ex parte Kelley, 

 (Ala. 2003). It appears --
based on the facts described in the memorandum below and in this
Court's prior opinion -- that all of those criteria were satisfied here: Gunn
was (1) wearing clothing that matched the clothing of a known criminal,
(2) while walking around a high-crime area, (3) in the middle of the night,
and then (4) sped up in the opposite direction as soon he noticed Smith's
police car, while (5) concealing his hands in his clothing. If those facts
are accurate, then Smith's Terry stop was likely reasonable as a matter
of law.
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product of a constitutional violation. See Rule 32.1, Ala. R. Crim. P.

Because the United States Supreme Court has held that the Sixth and

Fourteenth Amendments to the federal Constitution guarantee a right to

effective assistance of counsel in criminal cases -- both at the trial stage,

Gideon v. Wainwright, 

 (1963), and during the first appeal,

Evitts v. Lucey, 

 (1985) -- Rule 32.1 provides defendants

the opportunity to obtain relief if they can state a claim of ineffective

assistance of trial or appellate counsel. See Ex parte Walker, 

 (Ala. 2000). Based on the record before us, it appears that Smith

may be a candidate for postconviction relief under Rule 32. He may also

be eligible to receive the assistance of court-appointed counsel under Rule

32.7(c), Ala. R. Crim. P.

                                    IV.

      Because Smith has failed to preserve any viable legal theories for

this Court's review, I must concur in the decision to quash writ. But since

the memorandum below raises obvious doubts regarding Smith's

conviction and the adequacy of his counsel, I believe he may be eligible

for postconviction relief.

      Bolin, J., concurs.


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