Niquita Blake v. State of Alabama

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REL: 10/01/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , Alabama A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . ALABAMA COURT OF CRIMINAL APPEALS OCTOBER TERM, 2009-2010 CR-09-0376 Niquita Blake v. S t a t e o f Alabama Appeal WINDOM, Clarke C i r c u i t (CC-08-615) Court Judge. Niquita murder, from Blake appeals s e e § 13A-4-2 resulting sentence her conviction a n d § 13A-6-2, A l a . Code of 20 years i n prison. for attempted 1975, andh e r The c i r c u i t court CR-09-0376 split Blake's years in prison The 23, in 20-year sentence f o l l o w e d by 2008, shortly an E a s t e r e g g about one another. her pocket The after 5 years hunt, how Blake shot Sharkea had W i l l i a m s i n the indicating Blake, the t h a t W i l l i a m s was indicated Blake, that that, during pistol from her the pocket The aggressor. argument, that t e s t i f i e d State also and of shot 2 from and brandished the indicating threw then p u l l e d knife, also beer a knife Blake W i l l i a m s i n the a argument. A c c o r d i n g t o B l a k e and the knife Blake's evidence Williams the presented on h e r b e h a l f , a f t e r W i l l i a m s blade with that during evidence witnesses an stomach. presented can, into a pistol hand, the March interacting i f W i l l i a m s had to s l a s h B l a k e ' s neck. with been from h i t Blake w i t h a beer neck W i l l i a m s got retreated first 4 participated safely other the even serve d i d not b r a n d i s h the shot. attempted Blake's had indicating a k n i f e but c o u l d have on children and attack Blake before being Blake of evidence to e s t a b l i s h e d t h a t on the argument, Blake p u l l e d State presented evidence her on p r o b a t i o n . children their During and a group argument, W i l l i a m s had knife, ordered evidence presented at t r i a l argument or and on and other missed pulled stomach. a CR-09-0376 After court both held sides a jury-charge conference, Blake instruction that defense unless retreat or Blake a ground "there does so activity objected stated that to that [was] person to § duty as that person place jury-charge rely 295.) retreat where and escape in Code may she selfby Specifically, engaged i s not jury on mode o f 13A-3-23(b), A l a . to circuit proposed cannot (R. the the State's combat." a a During convenient have in cases, no pursuant is their the a not long and rested conference. d e c l i n i n g to argued person had 1975, stand an her illegal has a right to be that § 13A-3-23(b), located. In Ala. response, Code 1975, the was one's ground u n t i l because the prosecutor not 2009. altercation amended The argued to allow prosecutor from which the a person to f u r t h e r argued charge arose self-defense applied. § Code 1975, deadly appears such pre-amendment provided physical or he that force upon knows t h a t force with "a complete he version person i s not another can person avoid safety [b]y 3 of the statute 13A-3-23(b), justified i f i t necessity retreating that occurred i n 2008, the pre-amendment v e r s i o n of the The stand in Ala. using reasonably of " using CR-09-0376 The circuit overruled jury court Blake's charge, "defendant objection. the is agreed circuit not and i f i t reasonably she avoid safety by On the conviction court's using appears must According to both or Code 1975, was Blake Willaims be and the jury that the force issue of self- knows that defendant complete the State because instruction and the State, amended i n 2006, b e f o r e occurred, and concedes § the was erroneous. 13A-3-23(b), the a l t e r c a t i o n that individual t h a t the to circuit stand one's ground. court erroneously the 2006 issue of self-defense i f i t 4 Ala. between amendment allows Thus, the p a r t i e s agree i n s t r u c t e d the jury that person c l a i m i n g s e l f - d e f e n s e " i s not j u s t i f i e d i n u s i n g p h y s i c a l f o r c e upon a n o t h e r p e r s o n that circuit removed t h e d u t y - t o - r e t r e a t e l e m e n t o f s e l f - d e f e n s e and an a physical such f o r c e w i t h reversed jury Blake i t s self-defense deadly on and 325.) argues self-defense and during n e c e s s i t y of u s i n g Blake prosecutor i n s t r u c t e d the in r e t r e a t i n g . " (R. appeal, Blake's court the cannot p r e v a i l defense can Later, justified upon a n o t h e r p e r s o n with and cannot p r e v a i l reasonably appears a deadly on or the the CR-09-0376 d e f e n d a n t knows t h a t she can avoid f o r c e w i t h complete s a f e t y by In W i l l i a m s So. that 3d v. , the State, to § removed from the defense and an which allows effective § retreating." [Ms. June 1, 2010), t h i s 13A-3-23(b), of 13A-3-23(b), A l a . Court stand Code the duty the such agrees. 2010] recognized 1975, to which retreat one's ground, Specifically, Code 1975, 26, Court Ala. self-defense i n d i v i d u a l to 2006. This CR-08-1994, Mar. ( A l a . C r i m . App. amendment the n e c e s s i t y of u s i n g became 2006 amendment to provides: "'A p e r s o n who [ o t h e r w i s e s a t i s f i e s t h e c r i t e r i a o f self-defense] in using physical force, including d e a d l y p h y s i c a l f o r c e , a n d who i s n o t e n g a g e d i n an u n l a w f u l a c t i v i t y a n d i s i n a n y p l a c e w h e r e he or s h e h a s t h e r i g h t t o be h a s no d u t y t o r e t r e a t a n d has t h e r i g h t t o s t a n d h i s or h e r g r o u n d . ' " Williams, 1975, the as So. 3d amended). at Because that § § 13A-3-23(b), A l a . 1 3 A - 3 - 2 3 ( b ) was amended Code before i n c i d e n t t h a t formed the b a s i s of B l a k e ' s p r o s e c u t i o n , amendment a p p l i e d i n t h i s So. (quoting 2d 1000, the offense 1001 law Further, "defendant is the the not See ( A l a . C r i m . App. i n e f f e c t at controls case. the time M i n n i f i e l d v. 2005) of the State, 941 ("It i s w e l l s e t t l e d the commission of the prosecution."). circuit justified court's in 5 using instruction deadly that physical a force CR-09-0376 upon a n o t h e r p e r s o n defense she and cannot prevail i f i t reasonably appears s a f e t y b y r e t r e a t i n g , " (R. 3 2 5 , ) language 13A-3-23(b), Instead, set forth A l a . Code the "regarding circuit the version of Williams, So. 3d Consequently, regarding the the law and 3d a t Crim. should App. instructed Code 1975, to circuit J a c k s o n v. S t a t e , Rather, the as an jury forth Ala. in Code the State's retreated. See the 1975," the Further, instruction jury See W i l l i a m s , So. with So. 2d 4 5 , 47-48 ( A l a . should have 13A-3-23(b), Ala. § the c i r c u i t not evidence Jackson, indicating 993 So. 6 2d court's harmless that at of court circuit was instruction improper because j u r y c o u l d have r e j e c t e d B l a k e ' s d e f e n s e of s e l f - d e f e n s e on § . set 3d of i n c o r r e c t statement 993 i n accordance jury cover at court's 2007)). self-defense that complete version So. 13A-3-23(b), r e t r e a t was as amended. knows i n s t r u c t e d the not have been g i v e n . jury self- . the duty (citing at Williams, retreat § of force with amended erroneously to pre-amendment such the 1975." duty issue " d i d not s u b s t a n t i a l l y in court the or the defendant can a v o i d t h e n e c e s s i t y of u s i n g the on 48 she the based could (holding that have the CR-09-0376 circuit court's failure to give right t o s t a n d one's ground could have rejected the was Williams, defense So. 3 d a t (same). r e v e r s e s the c i r c u i t court's cause for proceedings that are c o n s i s t e n t Wise, P.J., of on the the jury self-defense t h a t the d e f e n d a n t had a d u t y t o Court R E V E R S E D AND instruction not harmless because defendant's b a s e d on t h e e r r o n e o u s b e l i e f retreat); a correct judgment Therefore, this and with remands this this opinion. REMANDED. and Welch, K e l l u m , and 7 Main, J J . , concur.

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