The Alabama Supreme Court has turned down an appeal from a white former Montgomery police officer who was convicted of manslaughter for the fatal shooting of Black man in 2016.
Three years ago, a Dale County jury convicted Aaron Cody Smith of manslaughter in the death of Gregory Gunn after an encounter in a Montgomery neighborhood on Feb. 25, 2016. A judge sentenced Smith to 14 years in prison.
Three of the six justices who agreed with today’s decision to reject Smith’s request for a review of his case also found that Smith could have grounds for further appeals because of the failure of his lawyers to raise certain points in his defense.
“It is rare to read an appellate-court decision that simultaneously affirms a defendant’s conviction while also describing as ‘largely undisputed’ a factual record that seems more consistent with the defendant’s innocence than his guilt,” Justice Jay Mitchell wrote.
Mitchell wrote that he agreed with the decision to quash the writ of certiorari – rejecting Smith’s request for review – because he said it failed to raise any viable legal theories. But Mitchell found that the record in the Court of Criminal Appeals “raises obvious doubts regarding Smith’s conviction and the adequacy of his counsel, I believe he may be eligible for postconviction relief.” Justice Michael Bolin concurred with Mitchell’s opinion.
Justice Tommy Bryan wrote a separate opinion questioning why Smith’s lawyers failed to raise the issue of whether the evidence proved Smith intended to kill Gunn.
“That omission appears to be problematic and perhaps raises a serious question about the effectiveness of Smith’s counsel,” Bryan wrote.
Bryan concurred with the decision to deny Smith’s appeal. None of the justices supported granting the request for review. Justices Greg Shaw and Kelli Wise recused.
According to the Court of Criminal Appeals account that Mitchell summarized in his opinion, Gunn was on patrol in a high-crime neighborhood about 3 a.m. when he encountered Gunn, 58, who was walking. Smith stopped Gunn for a pat-down. Gunn initially complied but broke away and ran. Smith called for backup and tried unsuccessfully to stop Gunn with his Taser and his baton. Gunn ran onto the front porch of a home. When Smith pursued, Gunn charged at Smith with a painter’s pole. Smith shot and killed Gunn. An autopsy showed Gunn was shot at least seven times, including three in the chest.
A Montgomery County grand jury indicted Smith for murder. His trial was moved to Dale County because of pretrial publicity.
Smith’s lawyers argued during the trial that Smith shot Gunn in self-defense and in the line of duty as a police officer. But prosecutors said the evidence did not support the claim that Gunn posed a deadly threat to Smith. According to an Associated Press account of the trial, Gunn’s friends said he walking home from a weekly card game when Smith stopped him. Gunn was near his home when he died.
The jury deliberated for two hours and convicted Smith of the lesser charge of manslaughter.
Mitchell wrote in today’s opinion that the conviction was for the “heat of passion” form of manslaughter, which he said required proof that Smith intended to kill Gunn. Mitchell wrote that the facts seem to show that Smith shot Gunn to disable his attack with the paint pole, rather than to kill him. The failure of Smith’s lawyers to challenge the evidence that Smith intended to kill Dunn “may be the most astonishing failure I’ve ever seen in a criminal case,” Mitchell wrote.
Smith could have grounds for an appeal under Rule 32 in Alabama’s criminal procedures, which concerns the constitutional right to effective counsel in criminal cases, Mitchell wrote.
Related: Appeals court upholds manslaughter conviction of Montgomery police officer
The story was edited at 5:18 p.m. to correct references to Justice Bryan that should have been to Justice Mitchell.
