REL:   08/29/2014




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          SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014

                         _________________________

                                  1130921
                         _________________________

                       Ex parte Kevin Waide Peoples

                     PETITION FOR WRIT OF CERTIORARI
                    TO THE COURT OF CRIMINAL APPEALS

                       (In re:      Kevin Waide Peoples

                                          v.

                               State of Alabama)

  (Jefferson Circuit Court, CC-12-1124, CC-12-1125, CC-12-
                1126, CC-12-1127, CC-12-1128;
           Court of Criminal Appeals, CR-12-1697)

WISE, Justice.

       WRIT DENIED.       NO OPINION.
1130921

    Stuart, Bolin, Parker, Murdock, Shaw, Main, and Bryan,

JJ., concur.

    Moore, C.J., dissents.




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1130921

MOORE, Chief Justice (dissenting).

    Kevin Waide Peoples walked into the Woodlawn Post Office

on November 3, 2011, and placed a note on the counter in front

of Andrea Jackson, a postal clerk. The note read: "Give me the

money. I have gun." Peoples then placed one of his hands,

which   was    wrapped   in   his   jacket,     on    the    counter,    thus

reinforcing the statement in the note that he had a gun in his

possession. However, Jackson never saw a weapon. Jackson gave

Peoples $1,000 from the cash drawer. He left the post office

and fled in his truck. The police located the truck within 15

minutes,      and   Peoples   led   them   on   a    chase   before     being

apprehended. The police did not find a gun on Peoples's person

or in his truck.

    Convicted of first-degree robbery and other offenses,

Peoples was sentenced as a habitual felony offender to life

imprisonment without the possibility of parole. He raises a

single issue before this Court: Whether he was entitled to a

jury instruction on the lesser-included offense of third-

degree robbery. "[E]very accused is entitled to have charges

given, which would not be misleading, which correctly state

the law of his case, and which are supported by any evidence,


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1130921

however[] weak, insufficient, or doubtful in credibility." Ex

parte   Chavers,   361   So.   2d   1106,   1107   (Ala.   1978).   In

particular, "[a] person accused of the greater offense has a

right to have the court charge on lesser included offenses

when there is a reasonable theory from the evidence supporting

those lesser included offenses." MacEwan v. State, 701 So. 2d

66, 69 (Ala. Crim. App. 1997).

    A conviction for first-degree robbery requires proof

that, at the time of the robbery, the accused was "armed with

a deadly weapon or dangerous instrument." § 13A-8-41(a)(1),

Ala. Code 1975. "[A]ny verbal or other representation by the

defendant that he is then and there so armed, is prima facie

evidence ... that he was so armed." § 13A-8-41(b), Ala. Code

1975 (emphasis added). By presenting the note to the postal

clerk and placing his arm on the counter wrapped in his

jacket, Peoples represented that he was armed with a deadly

weapon. Thus, the jury had adequate evidence from which to

convict Peoples of first-degree robbery. Prima facie evidence,

however, is not conclusive evidence. A prima facie case may be

rebutted by contrary evidence.




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1130921

    Peoples did not display a weapon in the post office, and

no gun was found on his person or in his truck when he was

arrested. From these facts, the jury could reasonably have

deduced that Peoples deliberately created a false impression

that he had a weapon on him to facilitate the robbery. In that

event, the jury would have been free to convict Peoples of

third-degree robbery, namely "threaten[ing] the imminent use

of force against the person of the owner or any person present

with intent to compel acquiescence to the taking of ... the

property." § 13A-8-43(a)(2), Ala. Code 1975. But the jury did

not have this option because the trial court refused to

instruct the jury on third-degree robbery.

    Were the jury doubtful as to whether Peoples actually had

a weapon with him during the robbery, it could have convicted

Peoples of the lesser-included offense of third-degree robbery

to avoid having to resolve the uncertainty, especially in

light of the State's burden of proving Peoples's guilt beyond

a reasonable doubt. In this case, where a gun was neither

shown nor found, the jury easily could have entertained doubt

as to whether Peoples had had a gun in the post office.

Because evidence existed, though perhaps "weak, insufficient,


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1130921

or doubtful in credibility," Chavers, 361 So. 2d at 1107, that

Peoples did not have a gun on his person, he was entitled to

have the jury instructed on the elements of third-degree

robbery. "The defendant has the right to request instructions

based upon any material hypothesis which the evidence in his

favor tends to establish." Ex parte McGee, 383 So. 2d 205, 206

(Ala. 1980).

       For the above-stated reasons I would grant Peoples's

petition for a writ of certiorari to review the holding of the

Court of Criminal Appeals that "there was no reasonable theory

from    the   evidence   to   support   a   charge   on   third-degree

robbery."




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