Full Opinion (html_with_citations)

Rel: December 15, 2023




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         SUPREME COURT OF ALABAMA
                             OCTOBER TERM, 2023-2024

                                _________________________

                                      SC-2023-0251
                                _________________________

                       Ex parte Kendall Tewayne Johnson

                    PETITION FOR WRIT OF MANDAMUS

                                (In re: State of Alabama

                                                  v.

                             Kendall Tewayne Johnson)

                     (Montgomery Circuit Court: CC-21-93)
SC-2023-0251

MITCHELL, Justice.

     This case arises from a shootout in a Montgomery neighborhood, in

the aftermath of a heated argument between family members.         The

petitioner, Kendall Tewayne Johnson, exchanged fire with his uncle,

Cedric Lee Hubbard, eventually striking Hubbard and killing him. A

grand jury indicted Johnson for murder. But before the case could go to

trial, Johnson filed a motion for self-defense immunity, arguing that

Hubbard shot first and that he had returned fire only to defend himself

and others from Hubbard's attack.

     The prosecution opposed Johnson's motion but nonetheless

stipulated that everyone who witnessed the shooting would testify that

Hubbard had attacked first. The prosecution also did not submit any

evidence suggesting that Johnson had attacked, menaced, or threatened

Hubbard before the shootout, nor did it argue that additional discovery

might reveal such evidence.

     Despite the prosecution's stipulations, and despite the absence of

any evidence that Johnson was the initial aggressor, the Montgomery

Circuit Court denied Johnson's motion. That was error. Because the




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stipulated facts clearly establish Johnson's entitlement to self-defense

immunity, we grant his petition for a writ of mandamus.

                     Facts and Procedural History

     After a grand jury indicted him for murder, Johnson filed a pretrial

motion for immunity under § 13A-3-23(d), Ala. Code 1975, arguing that

he shot Hubbard in self-defense. Johnson explained that he and his

cousin, Ayindae Brown, had been outside Hubbard's house in

Montgomery during the afternoon of May 12, 2019, when Hubbard -- who

was drunk at the time -- pulled a gun on the two men and told them to

leave. Ayindae turned his back to walk away, at which point Hubbard

opened fire. It was only after Hubbard had begun firing, Johnson said,

that he pulled out his own weapon and returned fire in defense of himself

and his cousin.

     The prosecution opposed Johnson's motion. It pointed out that

Johnson did not have a valid permit for his firearm at the time of the

shooting and argued that this unlawful action deprived Johnson of his

eligibility for immunity under Alabama law. 1 The prosecution further




     1The permitting requirement for concealed weapons has since been

repealed. See Act No. 2022-133, § 9(2), Ala. Acts 2022.
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argued that Johnson and Ayindae were "the initial aggressors because

they came to [Hubbard's] residence to confront [Hubbard]" regarding an

earlier family argument shortly before Hubbard started shooting at

them.

     Instead of hearing oral testimony on Johnson's motion, the trial

court agreed to resolve the motion based on a series of factual stipulations

jointly submitted by Johnson and the prosecution. Those stipulations

provided as follows.

     On Mother's Day in 2019, Hubbard got into a heated argument with

Ayindae's mother,      Latoya Brown, outside        Hubbard's house      in

Montgomery. The argument was about money -- specifically, about a

check belonging to Hubbard and Latoya's daughter, Shaliya Brown.

Shaliya testified that her father, who had previously announced that "he

was going to get drunk for Mother's Day," was intoxicated at the time.

The argument between Hubbard and Latoya escalated until, at one point,

Hubbard threatened to kill Latoya. Latoya then fled the house and called

her adult son, Ayindae, to explain what had happened.

     Later that afternoon, Ayindae and Johnson stopped by Hubbard's

house so that Ayindae could "talk to Shaliya about the argument." The


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two men were accompanied by Ayindae's girlfriend -- a young woman

named Ventrelya Smith -- and her baby daughter. As soon as Ayindae

and Johnson stepped out of their vehicle, Hubbard -- who had been

visiting with his neighbor, Michael Robinson, at Robinson's house --

"came from across the street," walked up to the two men, and demanded

to know what Ayindae's "problem" was. Ayindae responded by asking

whether it was true that Hubbard had threatened to shoot his mother.

Hubbard answered that it was true and then told Ayindae to leave.

     Apart from Hubbard and Johnson, there were six people in the area

who witnessed all or part of what transpired next: Shaliya, Dekerria

Johnson (Shaliya's half sister and Hubbard's stepdaughter), Dezi

Jefferson (the daughters' mutual friend), Robinson, Ayindae, and Smith.

     Only four of those six people -- Dekerria, Jefferson, Ayindae, and

Smith -- witnessed how the shooting began. All four of them stated,

without contradiction, that Ayindae tried to walk away after Hubbard

told him to leave but that, as soon as Ayindae "turned to go back to his

vehicle, Hubbard fired a weapon in [Ayindae and Johnson's] direction."

Johnson then pulled out his own weapon and "returned fire," hitting and

ultimately killing Hubbard.


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     Every witness who saw the beginning of the shooting also agreed

that Johnson had been on the sidelines, standing by Ayindae's car --

which was parked across from Hubbard's house -- at the time Hubbard

began firing. Several witnesses also stated (again without contradiction)

that Hubbard was drunk at the time and that he had armed himself with

two firearms, "a big gun" and "a little gun," before approaching Ayindae.

     Finally, every witness who was present that day indicated that they

saw Ayindae and Johnson running away or attempting to take cover

while Hubbard was shooting. Hubbard's friend and neighbor, Robinson,

said that he saw Hubbard chasing Ayindae and Johnson "into the street

while shooting" at them, even though the two men were "backing up" and

away from Hubbard at the time. Hubbard's stepdaughter, Dekerria, told

police that Hubbard began firing at Ayindae after Ayindae had "turned

to leave." Ayindae and Smith each told police that Ayindae had already

"turned to walk back to [his] car when [Hubbard] began shooting" at him.

Jefferson stated that, while she did not see how the shooting began, she

did see Ayindae and Johnson "running away." And Hubbard's daughter,

Shaliya, who also did not see how the shooting began, said that when she

looked outside, she saw "Hubbard in the street shooting" while Johnson


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was "across the street," trying to shield himself "behind a tree," while

returning Hubbard's fire.

     One of Johnson's bullets eventually struck Hubbard in the chest,

killing him. After Hubbard stopped shooting, Johnson and Ayindae fled.

None of Hubbard's bullets struck Johnson or Ayindae, though Dekerria

and Jefferson both testified that one of Hubbard's stray bullets did "hit

[an unnamed mutual] friend on the side of her leg" and that the friend

had to be taken to the hospital for treatment.

     Police eventually recovered several bullets from the scene,

including six .40-caliber casings, which came from Johnson's pistol, and

eight .45-caliber casings from another gun. The gun that fired the .45-

caliber casings -- which presumably was the "big gun" that witnesses

described Hubbard as carrying -- was never recovered. The police did

recover Hubbard's small gun, "a 0.25 caliber weapon," but did not recover

any .25-caliber casings from the scene (though it is unclear from the

record whether Hubbard's .25-caliber weapon was the type of gun capable

of ejecting shell casings). Johnson conceded that he did not have "a

legally valid pistol permit."




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SC-2023-0251

     After reviewing these stipulated facts, the trial court denied

Johnson's request for self-defense immunity in a one-paragraph order,

which stated that, based on its review of "the facts as stipulated by the

parties," Johnson was ineligible for self-defense immunity because: (1)

Johnson and Ayindae were the initial aggressors; (2) Johnson was

required to retreat from the altercation because he had engaged in illegal

activity by carrying his pistol without a permit; and (3) the fact that

Johnson was carrying a pistol without a permit was "prima facie evidence

of his intent to commit the murder."

     Johnson filed a petition for a writ of mandamus in the Court of

Criminal Appeals, which denied his petition in a per curiam opinion, over

the dissent of two judges. See Ex parte Johnson, [Ms. CR-21-0117, Mar.

24, 2023] ___ So. 3d ____ (Ala. Crim. App. 2023). Johnson then sought

mandamus review in this court, in accordance with Rule 21, Ala. R. App.

P. We ordered an answer and briefs.

                          Standard of Review

     We review de novo a decision of the Court of Criminal Appeals on

an original petition for a writ of mandamus. Rule 21(e)(1), Ala. R. App.

P.; Ex parte Sharp,
893 So. 2d 571, 573
 (Ala. 2003). Mandamus relief is


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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." ' " State

v. Jones,
13 So. 3d 915, 919
 (Ala. 2008) (citations omitted).

     In determining whether the petitioner has satisfied that standard,

"this Court reviews issues of law de novo." Ex parte Terry,
957 So. 2d 455, 457
 (Ala. 2006). Accordingly, when " ' "the facts before the trial court

are essentially undisputed" ' " -- as they are in cases such as this one, in

which no oral testimony was heard and the only evidence before the trial

court was a set of stipulated facts -- " ' "the court's judgment carries no

presumption of correctness." ' "
Id.
 (citations omitted).

                                  Analysis

     Alabama law generally allows a person to use "deadly physical

force" against another to defend himself or a third person when he

"reasonably believes" that the other person is "[u]sing or about to use

unlawful deadly physical force." § 13A-3-23(a)(1). But there are some

important exceptions to that rule. As relevant here, a person is not

justified in using physical force to defend himself or a third person if


                                      9
SC-2023-0251

     "He or she was the initial aggressor, except that his or her
     use of physical force upon another person under the
     circumstances is justifiable if he or she withdraws from the
     encounter and effectively communicates to the other person
     his or her intent to do so, but the latter person nevertheless
     continues or threatens the use of unlawful physical force."

§ 13A-3-23(c)(2).

     At common law, the victim of a violent attack was required to make

a reasonable attempt to retreat, if retreat was feasible, before using

deadly force against his attacker. Hill v. State,
194 Ala. 11, 26
,
69 So. 941, 947
 (1915). But our self-defense statute modifies that common-law

rule, giving any victim the right to "stand his or her ground" and refuse

to retreat, so long as the victim is otherwise justified in using physical

force under § 13A-3-23(a), is "not engaged in an unlawful activity," and

is in a "place where he or she ha[s] the right to be." § 13A-3-23(b).

     Our self-defense statute also provides a procedural safe harbor for

victims of violent crime, allowing anyone who claims that he was justified

in defending himself -- either under the common-law approach or under

the stand-your-ground protection conferred by the Legislature -- to seek

immunity from criminal prosecution by filing a pretrial motion under

subsection (d). A defendant who files a pretrial immunity motion carries

the burden of demonstrating "by a preponderance of the evidence that he

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SC-2023-0251

or she is immune from criminal prosecution." § 13A-3-23(d)(2). But if a

defendant does not meet his burden of proving his entitlement to self-

defense immunity at the pretrial hearing, he may nonetheless pursue the

defense at trial, at which point the prosecution bears the burden of

proving that he did not act in defense of himself or others, along with all

the other elements of murder. § 13A-3-23(d)(4); Ex parte Johnson,
433 So. 2d 479, 481
 (Ala. 1983).

     As noted above, the trial court provided three justifications for its

determination that Johnson was ineligible for self-defense immunity.

First, it held that Johnson was an "initial aggressor" and was therefore

barred from invoking self-defense immunity under subsection (c).

Second, it held that Johnson was required to retreat from the altercation

because he had engaged in an "illegal activity" by carrying his pistol

without a permit. Finally, the trial court held that Johnson's decision to

carry a pistol without a permit was "prima facie evidence of his intent to

commit the murder." We address each of those holdings in turn.

     A. Johnson was not the "initial aggressor"

     Everyone seems to agree that Johnson satisfies the baseline

requirements set out in § 13A-3-23(a)(1) to be eligible for self-defense


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immunity. At the time Johnson killed Hubbard, Hubbard was actively

firing at Johnson and his cousin.         Johnson, therefore, "reasonably

believe[d]" that Hubbard was "[u]sing or about to use unlawful deadly

physical force" against him or another person. § 13A-3-23(a)(1).

     But the trial court determined that Johnson was ineligible for self-

defense immunity based on the carveout in subsection (c)(2) because, it

reasoned, Johnson "was one member of a group that initiated the

aggression" against Hubbard. In other words, the trial court concluded

that Ayindae's decision to verbally confront Hubbard about Hubbard's

threats against Ayindae's mother was an act of initial aggression and

that Johnson had participated in that aggression by accompanying

Ayindae during his visit to Hubbard's house.

     The trial court's conclusion reflects a mistaken understanding of

what constitutes "initial aggress[ion]" under § 13A-3-23(c)(2). While a

person who starts an argument might be said to have behaved

"aggressively" in a loose sense of that word, the term carries a more

precise meaning in criminal law.         In that context, as the Court of

Criminal Appeals has elsewhere explained, the term "initial aggressor"

refers to someone who engaged in a " 'forceful action or procedure,' " as in


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SC-2023-0251

an " 'unprovoked attack,' " against another; it does not encompass

someone who simply "created [a] controversy" or verbally confronted

someone else. Gaines v. State,
137 So. 3d 357, 361
 (Ala. Crim. App. 2013)

(citing Merriam-Webster's Collegiate Dictionary 272 (11th ed. 2003)

(defining "aggression")) (emphasis added). We agree with the court in

Gaines -- and with the numerous courts in other jurisdictions that have

considered this question2 -- that an individual does not forfeit his right to

defend himself and others merely by starting an argument (or, in


     2See, e.g., State v. Kee,
6 Wash. App. 2d 874
, 881,
431 P.3d 1080, 1083
 (2018) ("words are not adequate provocation to negate self-defense"
(citing State v. Riley,
137 Wash. 2d 904, 911
,
976 P.2d 624
, 628 (1999)));
Castillo v. People,
421 P.3d 1141, 1150
 (Colo. 2018) ("insults alone cannot
make one the initial aggressor"); Commonwealth v. Grassie,
476 Mass. 202
, 210 n.7,
65 N.E.3d 1199
, 1206 n.7 (2017) ("words alone cannot make
one into a first aggressor"); State v. Buckley,
202 Vt. 371, 384
,
149 A.3d 928, 936
 (2016) (" 'mere words do not justify an assault and battery' "
(citation omitted)); State v. Jones,
320 Conn. 22
, 59,
128 A.3d 431
, 455
(2015) ("as a matter of law, the jury could not have determined that [the
defendant] was the initial aggressor solely on the basis of his utterance
of certain words"); In re Mondy E.,
121 A.D.3d 785, 786
,
994 N.Y.S.2d 173, 175
 (2014) ("[a]n actor is not the initial aggressor where his or her
conduct consists of 'mere insults as opposed to threats' " (citation
omitted)); Drennen v. State,
311 P.3d 116, 129
 (Wyo. 2013) ("words alone
do not make a person the aggressor"); Jones v. State,
201 P.3d 869, 886
(Okla. 2009) ("the use of words alone cannot make a person an
aggressor"); Salas v. State, No. 14-98-01319-CR, Jan. 11, 2001 (Tex. App.
2001) ("verbal insults" and " '[w]ords alone do not constitute an act of
aggression which would permit the use of deadly force' " (quoting Fry v.
State,
915 S.W.2d 554, 561
 (Tex. App. 1995))).
                                     13
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Johnson's case, providing moral support to the person who allegedly

started an argument).

     Perhaps recognizing the trial court's error, the State's brief

attempts to justify the trial court's "initial aggressor" determination on

an alternate basis. The State hypothesizes that the trial court might

have refused to credit the unanimous witness testimony that Hubbard

attacked first. And absent that witness testimony, the State argues, the

trial court could have concluded that it was plausible that Johnson -- not

Hubbard -- shot first, and thus that Johnson really was the initial

aggressor.

     There are multiple problems with this argument. The first and

most obvious is that the State's theory is inconsistent with the trial

court's own order. In that order, the trial court explained that it based

its ruling on "the facts as stipulated by the parties[] and the argument[s]

of counsel," which would be an unusual thing to say if the trial court had

actually refused to credit those stipulations and rejected the arguments

of counsel. Indeed, everything about the trial court's order indicates that

-- in keeping with the approach urged by the prosecution -- it treated the

stipulated facts and testimony as true but reasoned that, "regardless of


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SC-2023-0251

which individual shot first, [Johnson] -- and frankly, [Ayindae], too --

were the initial aggressors because they came to [Hubbard's] house to

confront [Hubbard] following the earlier argument [Hubbard] had with

[Ayindae]'s mother." In other words, the trial court determined that

Johnson was the initial aggressor because he had accompanied the

person who started a verbal argument with Hubbard, not because it

determined that he had shot first.

     A second problem with the State's theory is that the State provides

no plausible explanation for why the trial court would have refused to

credit the uncontradicted testimony of so many witnesses.3           That

testimony was unanimous on every relevant detail, consistent with the




     3The closest the State comes is when it points out -- in an attempt

to cast doubt on the truthfulness of their testimony -- that some of the
witnesses in this case were related to Johnson. We do not see why that
matters. After all, every witness who was related to Johnson was also
related at least as closely to Hubbard. And the testimony of all the
individuals who were related to Johnson and Hubbard was consistent
with the testimony of the three individuals who bore no relation to either
man (Smith, Jefferson, and Robinson). Indeed, even the witness who was
most clearly partial to Hubbard -- Robinson, who was Hubbard's longtime
friend and neighbor and who did not know Johnson or Ayindae at all --
testified that Johnson and Ayindae were trying to back away while
Hubbard was firing at them.
                                    15
SC-2023-0251

physical evidence, and unimpeached by the prosecution, and it contained

no apparent indications of partiality or dishonesty.

     We do not doubt that there may be circumstances in which a trial

court could properly decline to credit stipulated testimony -- such as if

the stipulations are incoherent, inconsistent, contradicted by physical

evidence, or appear to be the product of collusive activity or witness

intimidation. But none of those circumstances are present in this case.

Here, the testimony of all the witnesses was cogent, unanimous, and

consistent with all the other evidence. There was nothing in the parties'

stipulations that could have led a reasonable fact-finder to determine

that Johnson shot first, and nothing about the trial court's order indicates

that it made such a determination.

     B. To the extent the common-law duty to retreat applied, Johnson
     satisfied that duty

     The second reason the trial court gave for denying Johnson's

pretrial immunity motion had to do with Johnson's failure to obtain a

valid permit for his pistol. According to the trial court, that failure meant

that Johnson was "engaged in an unlawful activity" under § 13A-3-23(b)

and was thus ineligible for Alabama's statutory stand-your-ground



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protections. Consequently, the court concluded, Johnson was "required

to retreat from the altercation."

     We note at the outset that the law requiring gun owners to obtain

a permit before carrying a concealed weapon, § 13A-11-73, Ala. Code

1975, was repealed by the Legislature shortly after Johnson's indictment,

see Act No. 2022-133, § 9(2), Ala. Acts 2022, amidst a nationwide spate

of litigation challenging permitting restrictions on the right to keep and

bear arms, see, e.g., New York State Rifle & Pistol Ass'n v. Bruen,
597 U.S. 1, 12-15
 (2022). Johnson argues that the repeal of § 13A-11-73

operates retroactively, such that he was not "engaged in an unlawful

activity" at the time of the shooting after all. The State does not respond

to this argument in its briefing.

     We need not address either the constitutional validity of the old

gun-permitting regime or the retroactive effect of its repeal in order to

decide this case. Even if we assume that Johnson was required to comply

with the common-law duty to make a reasonable attempt at retreat, the

materials before this Court show that he satisfied that duty. As noted

above, everyone who saw how the shootout began indicated that Ayindae

-- and by all indications, Johnson too -- were already retreating when an


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intoxicated Hubbard started shooting at them.           In addition, when

Hubbard started firing, Johnson and Ayindae were on foot in the middle

of a street in a residential neighborhood, surrounded by innocent

bystanders (including Smith's small child) and their homes. Such a

situation simply does not leave "open to [the victims] a reasonably safe

mode" of retreat, Oldacre v. State,
196 Ala. 690, 693
,
72 So. 303, 304

(1916), meaning that -- even under the common-law standard -- Johnson

was entitled to defend himself and others.

     C. Johnson's possession of a pistol without a license does not
     preclude him from self-defense immunity

     The trial court's third and final justification for its ruling rested on

its view that Johnson's possession of a pistol without a permit was "prima

facie evidence of his intent to commit the murder." That statement

appears to borrow language from an earlier version of § 13A-11-71, Ala.

Code 1975, which -- at the time Johnson was indicted -- provided that,

"[i]n the trial of a person for committing or attempting to commit a crime

of violence, the fact that he was armed with a pistol and had no license

to carry the same shall be prima facie evidence of his intention to commit

said crime of violence." In 2022, the Legislature rewrote the statute to



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remove the relevant language, consistent with its decision to repeal the

permitting requirement outright. See Act No. 2022-133, § 1.

     As above, we need not comment on the validity of earlier versions

of § 13A-11-71 or on the retroactive effects of its amendment, because

even under the old permitting regime, it was well established that § 13A-

11-71's presumption had no relevance once "self-defense ha[d] been

injected as a defense." Manuel v. State,
711 So. 2d 507, 513
 (Ala. Crim.

App. 1997) (citing In re Winship,
397 U.S. 358, 364
 (1970)). That is

because, as the dissenting opinion below pointed out, defense of self and

others is available without regard to whether the defendant intended to

kill (as opposed to merely wound or repel) his attacker. See Ex parte

Johnson, ___ So. 3d at ____ (Cole, J., dissenting). Even if a defendant

admits that he intended to kill his attacker, Alabama law still shields

him from criminal liability so long as his use of force was reasonably

necessary to defend himself or another person from the attacker's initial

aggression. See § 13A-3-23; Hill,
194 Ala. at 26
,
69 So. at 947
. Former




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§ 13A-11-71 therefore does not prevent Johnson from claiming self-

defense immunity,4 and the trial court erred in concluding otherwise.

                                Conclusion

     For the reasons stated above, we grant Johnson's petition for a writ

of mandamus and direct the trial court to grant his motion for self-

defense immunity.

     PETITION GRANTED; WRIT ISSUED.

     Parker, C.J., and Shaw, Wise, Bryan, Mendheim, Stewart, and

Cook, JJ., concur.

     Sellers, J., concurs in the result.




     4The State appears to recognize this reality, because it does not

even attempt to defend this aspect of the trial court's holding in its
briefing before this Court.
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