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168 So. 3d 163

Johnson v. State

Court of Criminal Appeals of Alabama

Decided November 21, 2014

Court of Criminal Appeals of Alabama · decided 2014-11-21

Cited by 7 later decisions — most recently February 2016

7 state decisions

Key passage — most relied on by later courts

““In the present case, Fuller urges this Court to follow Diggs . Fuller argues that his possession of a firearm before the altercation that led to Witherspoon’s death might have been an event in violation of the law; however, he asserts, based on the testimony of Fuller and Smoot, his possession of a firearm was justified, and thus was not an ‘unlawful activity,’ at the moment it became necessary for his self-defense. Therefore, Fuller argues that, in addition to the instruction on self-defense under 13A-3-23(a), Ala.Code 1975, he was entitled to an instruction under § 13A-3-23(b), Ala. Code 1975, informing the jury that, if he was justified under subsection (a) in using physical force, he had no duty to retreat. “There is language in Diggs that seems to support Fuller’s argument. However, the language in Diggs concerning the defendant’s duty to retreat was unnecessary and, thus, was merely dicta. Unlike the present situation, in Diggs the trial court erroneously refused to give any instruction to the jury concerning the defendant’s right to defend himself under § 13A-3-23(a), Ala.Code 1975. That error alone warranted reversal of the trial court’s judgment. It was unnecessary for this Court to analyze the separate issue concerning the limited right of a person to ‘stand his or her ground’ if that person is ‘justified under subsection (a) in using physical force,’ see § 13A-3-23(b), Ala.Code 1975.””

quoted by 1 later decision, including Wallace v. State

Relies on Ex Parte Taylor · Kidd v. State · Diggs v. State

Good law ✅— No negative treatment on recordhow we know

Decided 2014-11-21

View the full empirical analysis of this case →

JOINER, Judge,

¶1concurring in part and dissenting in part.

¶2I concur in the Court’s judgment reversing Eric Devon Johnson’s conviction on the basis that, under the circumstances of this *169case, Johnson was entitled under § 13A-3-23(a)(1), Ala.Code 1975, to an instruction on self-defense. I dissent, however, from the main opinion’s apparent holding that Johnson was also entitled to an additional no-duty-to-retreat instruction under § 13A-3-23(b), Ala.Code 1975, because, in the main opinion’s view, under Ex parte Taylor, 636 So.2d 1246 (Ala.1993), Johnson’s codefendant Ellis Andrei Diggs2 was not engaged in “unlawful activity” when Diggs shot and killed Garry Blackwell.3

¶3As I explained in my writing in Diggs v. State, 168 So.3d 156 (Ala.Crim.App.2014), and assuming, as the main opinion does, that Johnson’s ability to receive a no-duty-to-retreat instruction turns on Diggs’s ability to receive that same instruction:

“ ‘In Kidd v. State, [105 So.3d 1261 (Ala.Crim.App.2012) ], Kidd argued that “the trial court’s jury instruction regarding self-defense was misleading because, he said, it was contrary to the plain language of § 13A-3-23(b).” 105 So.3d at 1262. Kidd “admitted that, at the time of the shooting, he was a convicted felon and was aware that he was violating the law by carrying a gun.” 105 So.3d at 1262. At trial, the State argued that Kidd’s unlawful activity — being a felon in possession of a firearm — imposed upon him a duty to retreat under § 13A-3-23(b). 105 So.3d at 1263. This Court agreed and held that “§ 13A-2-23(b) imposéd a duty to retreat upon Kidd” because his “unlawful possession of the firearm [had] contributed to the argument that eventually led to the shooting.” 105 So.3d at 1264.’
“George v. State, 159 So.3d 90, 95 (Ala.Crim.App.2014), cert. denied, 159 So.3d 90 (Ala.2014).
“I agree with the main opinion’s reading of Ex parte Taylor, 636 So.2d 1246 (Ala.1993), as not negating [Johnson’s] right to a self-defense instruction under § 13A-3-23(a)(1), Ala.Code 1975. [Johnson] has not asked us to limit, overrule, or otherwise distinguish Kidd, however; therefore, I do not agree that Ex parte Taylor makes Diggs’s possession of the firearm ‘lawful activity’ for purposes of an additional ‘no-duty-to-retreat’ instruction based on § 13A-3-23(b), Ala.Code 1975.”

¶4168 So.3d at 163 (Joiner, J., concurring in part and dissenting in part).-

¶5. As the main opinion notes, "Johnson was jointly tried with his codefendant, Diggs.” 168 So.3d at 165 n. 1.

¶6. Although it is not clear, it appears that the main opinion assumes that Johnson’s ability to receive both a self-defense instruction and a no-duty-to-retreat instruction turns on whether Diggs is entitled to receive those same instructions. Under the circumstances of this case, however, there could be a factual situation in which Johnson is entitled to a no-duty-to-retreat instruction where Diggs is not.

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