Rel: 09/26/2014




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          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1131202
                             ____________________

                      Ex parte J.C. Franklin Samuels

                      PETITION FOR WRIT OF CERTIORARI
                     TO THE COURT OF CRIMINAL APPEALS

                       (In re: J.C. Franklin Samuels

                                           v.

                               State of Alabama)

                    (Marshall Circuit Court, CC-10-258;
                  Court of Criminal Appeals, CR-13-0103)



PARKER, Justice.
1131202

    WRIT DENIED.   NO OPINION.

    Stuart, Bolin, Shaw, Main, Wise, and Bryan, JJ., concur.

    Moore, C.J., and Murdock, J., dissent.




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1131202

MOORE, Chief Justice (dissenting).

    J.C. Franklin Samuels was convicted of the murder of his

son, Gregory Samuels ("Gregory"), and was sentenced to 45

years' imprisonment. Samuels claimed that he was acting in

self-defense, which resulted in the unintentional killing of

his son. Samuels objected to the jury instruction on self-

defense, but on appeal the Court of Criminal Appeals held in

an unpublished memorandum that Samuels's objection was not

sufficiently specific to preserve the issue for appellate

review. Samuels v. State (No. CR-13-0103, June 6, 2014), ___

So. 3d ___ (Ala. Crim. App. 2014) (table). I believe that

there is a probability of merit to one of Samuels's claims,

and I would grant certiorari review to address it. Therefore,

I respectfully dissent from this Court's denial of the writ.

    Sometime in the late summer or early fall of 2009, 35-

year-old Gregory came to live with his father, 60-year-old

Samuels, allegedly to avoid parole-violation and child-support

charges in the State of New York. Gregory was 5'9", 195

pounds, and was alleged to have been a former professional

boxer.    Samuels   was   6'2",   145   pounds,   and   had   recently

undergone treatment for cancer.


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1131202

    Gregory exhibited violent behavior toward his father

while he was living with him. Gregory assaulted Samuels on one

occasion, punching him in the face while Samuels was on his

riding lawnmower and knocking him to the ground. As Samuels

laid on the ground, Gregory stood over him and said, "What are

you going to do now, old man?" David Smith, Samuels's nephew

and Gregory's cousin, testified that Gregory became violent

when he was drinking, especially when he was around Samuels.

According to Smith, Gregory was disrespectful to Samuels and

constantly threatened to "bash" his brains out or to "bash"

his face in. Smith testified that he was afraid of Gregory and

that Samuels appeared to be "very afraid" of Gregory.

    On the evening of September 9, 2009, Gregory, Samuels,

and Smith returned to Samuels's house after the men had been

drinking and shooting pool. Smith testified that Gregory and

Samuels got into an argument, after which Gregory called his

brother in Indiana and told him that he was going to "give his

dad a good ole a–- whooping." His brother replied, "Give him

one for me." Smith, who overheard the conversation between

Gregory and his brother because Gregory's cellular-telephone

speaker was on, testified that the men did not appear to be


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1131202

joking. Smith took Gregory to the store to buy beer, believing

that getting him away from Samuels would calm him down. Before

Gregory and Smith left, Gregory told Samuels that he was going

to bash his face in when he returned. Samuels told his wife

that    if   Gregory   attempted    to   bash   his   face   in   when   he

returned, he would kill him.

       When the men returned, Gregory jumped out of the truck

and    started   running   toward    the   house,     allegedly   telling

Samuels, who was about 25 feet away, that he was going to bash

his brains out. Samuels replied that this was the last time

Gregory would bash his brains out, and then he shot him in the

chest with a .22 caliber rifle. Gregory died from injuries

inflicted by the gunshot. Samuels told the police that he

meant to shoot Gregory in the stomach and that he did not mean

to kill him by shooting him in the chest.

       Samuels was tried for murder. At trial, Samuels objected

to the following jury instruction: "An assault with the hand

or fist, under ordinary circumstances, neither justifies nor

excuses the use of a deadly weapon." Samuels objected to this

instruction "as not being good law, and ... to the 'under

ordinary circumstances' not being further defined." The trial


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1131202

court     overruled   Samuels's   objection,   noting   that   the

instruction would be given in conjunction with the following

instruction: "[Y]ou are allowed to consider the difference in

size, strength, and the difference in the ages of Gregory

Samuels and J.C. Samuels in determining the reasonableness of

the belief of J.C. Samuels of the imminent use of unlawful

physical force by Gregory Samuels."

    The jury found Samuels guilty of murder, and he was

sentenced to 45 years' imprisonment. On appeal to the Court of

Criminal Appeals, Samuels challenged the jury instruction. The

Court of Criminal Appeals held that his objection was not

sufficiently specific to preserve the issue for appellate

review.

    Samuels alleges, among other things, that the Court of

Criminal Appeals' decision conflicts with George v. State,

[Ms. CR-12-0642, March 14, 2014] ___ So. 3d ___ (Ala. Crim.

App. 2014). In that case, Keith George was charged with

murdering a man who had been assaulting him. The trial court

gave the jury the following instruction:

         "'The defendant is not justified in using deadly
    physical force upon another person and cannot
    prevail on the issue of self-defense if it
    reasonably appears or the defendant knows that he

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1131202

    can avoid the necessity of using such force with
    complete safety by retreating.'"

George,   ___   So.   3d   at   ___.   George   objected   that   the

instruction was based on an outdated version of § 13A-3-23,

Ala. Code 1975, which had been revised to eliminate the duty

to retreat. The trial court overruled George's objection, and

George was convicted of murder. On appeal, the Court of

Criminal Appeals reversed the conviction, noting that the

statute had been amended to allow a defendant to stand his or

her ground. Consequently, the court concluded that "'the

circuit court's jury instruction regarding the duty to retreat

was an incorrect statement of the law and should not have been

given.'" George, ___ So. 3d at ___ (quoting Blake v. State, 61

So. 3d 1107, 1109 (Ala. Crim. App. 2010)).

    Like the trial court in George, the trial court in this

case gave an instruction that did not accurately reflect the

law. At the time of the offense, § 13A-3-23 provided, in

relevant part:1

         "(a) A person is justified in using physical
    force upon another person in order to defend himself
    or herself ... from what he or she reasonably

    1
     Section 13A-3-23 was amended effective August 1, 2013.
See Act No. 2013-283, Ala. Acts 2013. The quoted material
remains the same.
                                  7
1131202

    believes to be the use or imminent use of unlawful
    physical force by that other person, and he or she
    may use a degree of force which he or she reasonably
    believes to be necessary for the purpose. A person
    may use deadly physical force, and is legally
    presumed to be justified in using deadly physical
    force in self-defense ... if the person reasonably
    believes that another person is:

                 "(1) Using or about to use unlawful
            deadly physical force.

                "....

                 "(3) Committing or about to commit ...
            assault in the first or second degree ...."

The jury instructions in this case mentioned nothing about the

legal presumption of justification under the circumstances

listed in the statute, most notably when the aggressor is

about to commit second-degree assault.2 On the contrary, the

trial court instructed the jury that a person is not justified


    2
        Section 13A-6-21, Ala. Code 1975, provided, in relevant
part:

         "(a) A person commits the crime of assault in
    the second degree if the person does any of the
    following:

                 "(1) With intent to cause serious
            physical injury to another person, he or
            she causes serious physical injury to any
            person."

(Section 13A-6-21 was amended in 2010 and 2011. The quoted
material has not changed.)
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1131202

in using a weapon "under ordinary circumstances." This vague

instruction probably led the jury to presume that Samuels was

not justified in using deadly force, whereas the statute says

that the jury should have presumed that he was justified in

using such force if he reasonably believed Gregory was about

to commit an assault in the second degree. Samuels objected

that    the   phrase   "under   ordinary   circumstances"   was   not

sufficiently defined and that the instruction was based on bad

law. I agree with Samuels's objections and believe they were

sufficiently specific to preserve the issue for appellate

review; therefore, it appears to me that the Court of Criminal

Appeals' decision conflicts with George.

       Because I am persuaded that there is a probability of

merit in Samuels's assertion that the Court of Criminal

Appeals' decision conflicts with George, I would grant the

writ. Therefore, I respectfully dissent.




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