Ex parte William Darnell Kidd. PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: William Darnell Kidd v. State of Alabama)
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REL: 09/07/2012 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) 2290649), 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 SPECIAL TERM, 2012 ____________________ 1111270 ____________________ Ex parte William Darnell Kidd PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: William Darnell Kidd v. State of Alabama) (Mobile Circuit Court, CC-10-315; Court of Criminal Appeals, CR-10-1487) PER CURIAM. The petition for the writ of certiorari is denied. In denying the petition for the writ of certiorari, this Court does not wish to be understood as approving all the 1111270 language, reasons, or statements Criminal Appeals opinion. of law in the Court of Horsley v. Horsley, 291 Ala. 782, 280 So. 2d 155 (1973). WRIT DENIED. Malone, C.J., and Woodall, Bolin, and Shaw, JJ., concur. Murdock, J., concurs specially. Main, J., recuses himself.* *Justice Main was a member of the Court Appeals when that court considered this case. 2 of Criminal 1111270 MURDOCK, Justice (concurring specially). The Darnell Court Kidd of did Criminal not Appeals preserve concluded for that appellate William review his contentions (a) that the trial court erred in failing to give an adequate or proper jury instruction defining the phrase "unlawful activity" as that term is used in § 13A-3-23(b), Ala. Code 1975, and (b) that the prosecutor made improper, prejudicial statements to the "unlawful activity" issue. jury in regard to the same Kidd v. State, [Ms. CR-10-1487, April 27, 2012] ___ So. 3d ___ (Ala. Crim. App. 2012). This Court now denies certiorari review, but states that in doing so we are not to be understood as agreeing with all the legal analysis in the opinion of the Court of Criminal Appeals. I write separately to express my reason for concurring in the denial of certiorari review as well as my reason for not wanting to be understood as agreeing with all the legal analysis in the Court of Criminal Appeals' opinion. In the last paragraph of Part I and the last sentence of Part II announced of its certain opinion, the conclusions Court as to of the Criminal merits of Appeals Kidd's argument regarding the meaning of the term "unlawful activity" in § 13A-3-23(b). Those passages appear to address a question of first impression with respect to which the court below 3 1111270 offers a conclusion without the benefit of any analysis or authority. commentary It can be argued that the quotation from the to § 13A-3-23(b) set out in the penultimate paragraph of Part I of the Court of Criminal Appeals' opinion comes closer to describing what the legislature intended by the term "unlawful activity." That is, it appears that a reasonable argument can be made that the legislature intended there to be a nexus between the "unlawful activity" -- here, the mere possession of a gun -- and the need to act in self-defense. Based on the foregoing, I do not wish to be understood as agreeing with the conclusion stated by the Court of Criminal Appeals as to the meaning of the term "unlawful activity" in § 13A-3-23(b) and its application to presented in this case. facts such as those That said, I concur in denying the petition for the writ of certiorari because I agree with the conclusion of the Court of Criminal Appeals that the two issues described in the first paragraph of this writing were not preserved for appellate review. 4
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