Rel: December 15, 2023
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) 229-0650), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter.
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
2 SC-2023-0251
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. 3 SC-2023-0251
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
4 SC-2023-0251
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.
5 SC-2023-0251
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
6 SC-2023-0251
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."
7 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
8 SC-2023-0251
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
10 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
11 SC-2023-0251
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
12 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 SC-2023-0251
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
14 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
16 SC-2023-0251
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
17 SC-2023-0251
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
18 SC-2023-0251
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
19 SC-2023-0251
§ 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. 20