Rel: May 21, 2021

Notice: This unpublished memorandum should not be cited as precedent. See Rule 54, Ala. R. App. P. Rule 54(d)
states, in part, that this memorandum "shall have no precedential value and shall not be cited in arguments or
briefs and shall not be used by any court within this state, except for the purpose of establishing the application
of the doctrine of law of the case, res judicata, collateral estoppel, double jeopardy, or procedural bar."

ALABAMA COURT OF CRIMINAL APPEALS

____________________

CR-19-0428
____________________

Aaron Cody Smith v. State of Alabama

Appeal from Montgomery Circuit Court CC-16-1397

MEMORANDUM DECISION

COLE, Judge.

Aaron Cody Smith, a former law-enforcement officer with the

Montgomery Police Department, appeals his conviction for heat-of-passion
manslaughter, a violation of § 13A-6-3(a)(2), Ala. Code 1975, for killing
Gregory Gunn while Smith was on-duty, as well as his resulting sentence
of 14 years' imprisonment.

Facts and Procedural History

The evidence presented at trial was largely undisputed and tended

to show the following: On February 24, 2016, before starting his third-
shift patrol in District 14 on the westside of Montgomery, Smith attended
"roll call," at which his supervising officers presented him and the other
officers beginning third-shift patrol with crime-report data for reported
offenses in their respective districts. The crime-report data given to
Smith that night showed that there had been numerous property crimes
reported in District 14 during third-shift hours. Before he left to patrol
his district, Smith was ordered by a supervisor "to stop anything and
everything that moves in [his] district." (R. 515.) Smith then left to patrol
his district.

In the early morning hours of February 25, 2016, at around 3:00

a.m., Gregory Gunn left a weekly card game hosted at Robert Jelks's
house and began walking to his house on McElvy Street. Soon after Gunn
turned onto McElvy Street, Smith, who was patrolling the area, drove up
McElvy Street in his marked police vehicle from the opposite direction.
Smith stopped his vehicle so that he could approach Gunn -- whom he had
never encountered before -- to "see where he was coming from and where
he lived and if he had a reason to be in the neighborhood at 3 o'clock in the
morning."1 (R. 523, 524.)

Smith said that, when he saw Gunn, Gunn was dressed in dark
clothing, he was walking up McElvey Street with "a phone or some object
in his hand" (R. 524), and he put his hands in his pockets. According to
Smith, when Gunn saw him, Gunn "started walking quicker." (R. 525.)
Smith said that, as he stopped his vehicle, he attempted to radio dispatch
to let them know he was getting out of his vehicle. Smith explained that,
when he first made contact with Gunn, Gunn "was just an ordinary
citizen," and, Smith said, he had no intentions of getting out of his vehicle
to cause Gunn any harm. (R. 532.)

Smith said that when he got out of his vehicle, Gunn stopped, and
he told Gunn to take his hands out of his pockets. (R. 533.) Smith said
that he ordered Gunn to do so because "[i]t's not safe," and that he was
"taught at the Academy that hands in pockets are bad, and that, any time

1
Smith testified that he was wearing a bodycam and that his vehicle
was equipped with a camera on the dashboard, but he did not turn either
on before he encountered Gunn.

2
you're dealing with somebody, make sure that their hands are out where
you can see them, so that you know that you're not going to get hurt." (R.
534.) Smith said that Gunn complied with his request.

Smith then told Gunn to place his hands "on the hood of [Smith's]
car"; Gunn complied. (R. 537.) Smith said that he did not begin asking
Gunn any questions but, instead, wanted to pat Gunn down to make sure
that he did not have any weapons on him. (R. 537.) Smith said that,
when he moved his "right hand and put it toward the front of [Gunn's]
body ... [he] felt a hard object," which, Smith said, was "in the front where
people commonly keep guns." (R. 539.) Smith said that as soon as he
touched the hard object, Gunn "took this hand and swatted my hand out
of the way." (R. 539.) Smith said that, when Gunn "swatted" his hand, he
believed that Gunn had committed the crime of "harassment." (R. 540.)
Smith also explained that, as Gunn swatted him, "a cell phone and
something else fell on the ground." (R. 552.) Smith said that he then
"pushed [Gunn] up against the car" to prevent him from being able to
"reach whatever it was that he had in his waistband, and, at that point,
he was going to be under arrest." (R. 541-42.)

Smith said that Gunn began yelling (R. 542) and "because [Gunn]
was fixing to become combative because he had already swatted [his] hand
out of the way," Smith pulled his Taser. (R. 543.) At that point, Smith
called for a backup unit. (R. 544.) Smith said that he told Gunn "not to
fight with [him] or not to buck, or something along those lines." (R. 547.)
After he called for backup, Smith holstered his Taser and then put his
"hand back on [Gunn's] waist to hold him there." (R. 547, 548.) At that
point, Gunn began "sidestepping toward the front of the vehicle" and,
"when he reached the front of the [vehicle] where the headlight is, that's
when he bolted and took off running." (R. 548-49.) According to Smith,
as Gunn took off running, Gunn took his arm "and shoves back," which
Smith described as an "elbowing." (R. 549, 550.) Smith said that, when
Gunn ran from him, he committed the misdemeanor offense of attempting
to elude a police officer. (R. 552.) Smith then pursued Gunn on foot.
Smith said that, during the pursuit, he told Gunn, "Show me your hands
and get on the ground," but Gunn continued running. (R. 555, 556.)

3
 Because Gunn did not comply with Smith's commands and because,
as he was running away from Smith, Gunn put his hands in his pockets
(where Smith felt the hard object), Smith used his Taser on Gunn. (R.
558.) According to Smith, Gunn fell "but it didn't stop him." (R. 560.) So
Smith discharged his Taser a second time, and, again, it was ineffective
and Gunn "got up and ran." (R. 560.) Smith then discharged his Taser a
third time, which, again, did not stop Gunn. After the third discharge,
Smith said that Gunn said, "Fuck your Taser, Bitch." (R. 560.) Smith
then discharged his Taser a fourth time -- again without effect -- and
resholstered it. (R. 564.)

Thereafter, Gunn ran toward his neighbor's house. As Gunn got into
the driveway, Smith used his ASP2 to try to subdue him. Smith said that
he struck Gunn with the ASP multiple times. Yet Gunn continued
running up his neighbor's driveway and went up to his neighbor's front
porch. (R. 563, 573.) According to Smith, "[r]ight before we get to the
entrance to the porch, [he] struck [Gunn] one last time [with the ASP] on
the right-hand side of the body, and [Gunn] yelled: All right, Police." (R.
577.) Smith said that he interpreted Gunn's statement as meaning, "All
right; hold on just a second; I've got something for you," and he perceived
Gunn's statement as a threat. (R. 577.) Smith said that, because the
porch was dark, he could not see what was on the porch. (R. 578.) Smith
said that Gunn moved to a "pitch-black area" and he heard a "metal
clanking sound" -- "like the sound of tools clanking." (R. 581.) Smith said
that Gunn then "bladed toward [him] with the pole in his hand" (R. 582),
which Smith described as a "large yellow pole" (R. 583).

Smith said that, as he saw Gunn arming himself, Smith got rid of his
ASP, retrieved his firearm, and began backing up. (R. 584.) Smith said
that Gunn was "crouched over with the pole, raising up, and coming
towards [him] all at the same time." (R. 586.) Smith said that, as he
pointed his firearm at Gunn, he backed into a support column on the
porch and was "trapped ... on the front porch area." (R. 588.) Because

2
An ASP is a collapsible baton used by law-enforcement officers "to
strike large muscle groups; the legs, the arms, and other areas." (R. 562.)

4
Gunn had armed himself and because Smith "feared that [his] life was in
jeopardy, as well as any other person that came in contact with Mr. Gunn,
that their life was in jeopardy," Smith "pulled [his] weapon out of [his]
right-hand holster and punched out and then began firing toward the
yellow pole and his hand." (R. 591.) Smith said that Gunn stumbled
backward and fell to the ground and into Gunn's neighbor's yard. (R. 593,
596-97.) Smith then went over to Gunn, saw that he had been shot, and
"keyed up on the radio shots fired." (R. 598.) Smith said that, when he
saw Gunn on the ground, "that's when [he] started to become faint and felt
like [he] was about to pass out." (R. 599.)

At the time Smith first contacted Gunn on McElvey Street, another

officer, Steven Warren, was parked at a CITGO gas station nearby. While
Officer Warren was parked at the gas station he heard Smith "go on the
radio and put himself out on a suspicious person call" and, shortly
thereafter, Smith "ask[ed] for a backup unit." (R. 43.) Therefore, Officer
Warren headed in Smith's direction. When Officer Warren arrived at
Smith's location, he "saw Officer Smith standing over Mr. Gunn in the
yard of [a] residence." (R. 46.) Officer Warren asked Smith what
happened, and, according to Officer Warren, Smith responded:

"He said that he stopped to talk with Mr. Gunn. And

while he was patting him down, [Gunn] shoved off on him and
ran, and he pursued him. And then, when he caught up to
him, he came at him in an aggressive manner. He attempted
to tase him, and it didn't work; and then he attempted to use
his baton, and that didn't have any effect. Then he said Mr.
Gunn grabbed a hold of a stick -- that later turned out to be a
paint roller with a dried paintbrush on the end of it -- and
began swinging at him, and he pulled his weapon and fired."

(R. 46-47.)

Officer Warren explained that Smith had called for medical

assistance for Gunn, but Officer Warren said that Gunn "appeared to be
deceased." (R. 58.) Officer Warren said that Gunn "groaned one time, and

5
then he never moved again." (R. 58.) According to Officer Warren, Smith
"just wanted to sit there," he was "very upset," and looked like he was
"about to hyperventilate." (R. 58-59.) Later, Smith left the scene with
Sergeant Wells.

Officer Warren explained that the people who owned the home that
Gunn was shot in front of did not come out and speak with them. Rather,
Officer Warren had to wake them up. (R. 56.) When Officer Warren
spoke to the homeowner, Colvin Hinson, Hinson "said they were asleep,"
they did not mention hearing anyone banging on their door, and they
heard a gunshot, but they did not know where it came from.3 (R. 57.)

Officer Randall Smith4 a "special operations division" investigator

with the Montgomery Police Department also responded to the shooting.
(R. 71.) Officer Randall heard Smith's radio call where "[h]e had put
himself out on a call with a suspicious person." (R. 72.) Because Smith's
"radio traffic was muffled, like he was in an altercation with somebody"
and because "the dispatcher kept trying to raise him, and she wasn't able
to get him back on the radio," Officer Randall headed toward Smith. (R.
73.) By the time Officer Randall arrived, Officer Warren was already at
the scene. (R. 74.) Officer Randall said that he saw Gunn on the ground

3
The State also called Hinson to testify at Smith's trial. Hinson
recalled the events of February 25th differently from Officer Warren.
According to Hinson, he was awakened when he "heard [his] dogs going
into a panic and barking" and "heard banging on [his] door and someone
yelling [his] name." (R. 32.) Hinson said that, as he was calling 911,
"gunshots rang out." (R. 32.) Hinson claimed that he and his wife then
"opened the door and looked over to the right, and there was Mr. Gunn
lying there. And it was just a few seconds after that that an officer
emerged from behind the big hedge bush that [Hinson] had there." (R.
33.) Thereafter, Hinson said paramedics and other law-enforcement
officers arrived at the scene. (R. 34.)
4
Officer Randall Smith is referred to as Officer Randall throughout
this opinion to distinguish him from Smith, the defendant.

6
and "it looked like he had been shot through his arm right there where it
broke the bones, and, like, his hand was turned at an angle from the lower
part of his wrist up, like it was turned. And just outside that hand was
the paint stick pole lying on the ground." (R. 77.)

Shortly after the shooting, Agent Jason DiNunzio with the Alabama
Law Enforcement Agency arrived at the scene to investigate the incident.
Agent DiNunzio said that he and Agent Geno Howton "did walk down, and
[they] saw some of that debris in the roadway, which was described to
[them] as possibly the initial contact with Mr. Gunn." (R. 256.) That
"debris" was "shards of glass" that "was a potential crack pipe or a pipe
used for narcotics, because Agent Howton said it had some kind of filter
inside it." (R. 256.) Gunn's DNA was found on the "potential crack pipe."
(R. 244.) According to Agent DiNunzio, Agent Howton also collected
Gunn's cellular telephone from the scene. (R. 257-58.)

Within a few hours of the shooting, Smith was taken to the Criminal
Investigations Division of the Montgomery Police Department where he
met with Agent DiNunzio. Smith waived his rights under Miranda v.
Arizona, 384 U.S. 436 (1966), and agreed to speak with Agent DiNunzio.
During that interview, Smith told Agent DiNunzio what happened with
Gunn.5 After that interview, Smith was released.

A few days after the shooting, on March 1, 2016, Smith went to

Agent DiNunzio's office with his counsel. Smith again waived his
Miranda rights and provided a second statement to Agent DiNunzio,
which was video recorded. During that second statement, Smith again
recounted what he remembered happening the night he shot Gunn.6

Dr. Stephen Boudreau, a senior scientist at the Alabama

5
The recording of that interview was admitted as State's Exhibit 49
and was played for the jury. (R. 271-72.)
6
The video recording of Smith's second interview was admitted as
State's Exhibit 51 and was played for the jury. (R. 295.)

7
Department of Forensic Sciences, performed an autopsy on Gunn. (R. 184.)
According to Dr. Boudreau, Gunn "sustained multiple gunshot wounds,"
including one in his wrist, one in the back of his arm, three in his chest,
one in his right thigh, and a "graze wound" on his right upper arm. (R.
184-85.) Dr. Boudreau also said that the toxicology tests on Gunn showed
that Gunn had cocaine in his system. (R. 199.) Dr. Boudreau concluded
that Gunn's cause of death was "multiple gunshot wounds." (R. 205.)

At the conclusion of his trial, the circuit court instructed the jury on
murder as charged in Smith's indictment, on heat-of-passion
manslaughter as a lesser-included offense of murder, on self-defense
under § 13A-3-23, Ala. Code 1975, and the use of force by a police officer
as set out in § 13A-3-27, Ala. Code 1975. (R. 700-16.) The jury found
Smith guilty of heat-of-passion manslaughter. Thereafter, the circuit
court sentenced Smith to 14 years' imprisonment. (Supp. R. 39.) This
appeal follows.

Discussion

On appeal, Smith raises three arguments: (1) that the trial court
erred "by denying the admission of Mr. Gunn's prior specific act of
assaulting a police officer wherein a taser had no effect on him, and he did
not cease his assault until that officer drew her service weapon" (Smith's
brief, p. 23); (2) that the trial court erred when it denied Smith "a second
immunity hearing because the previous judge's implied bias tainted the
first hearing and his findings of fact should have been set aside following
his ordered recusal" (Smith's brief, p. 27); and (3) that "[t]he evidence is
legally insufficient to sustain a conviction for 'heat of passion'
manslaughter, because Mr. Gunn's dramatic, unforeseen action was an
intervening force that broke the chain of causation, Gunn was not
privileged to flee or use force against Officer Smith, Smith was lawfully
discharging his duties as a police officer, and the State presented no
evidence of provocation" (Smith's brief, p. 45). We address each issue in
turn.

I.

8
 First, Smith argues that the trial court erred "by denying the
admission of Mr. Gunn's prior specific act of assaulting a police officer
wherein a taser had no effect on him, and he did not cease his assault
until that officer drew her service weapon." (Smith's brief, p. 23.) Smith's
argument is without merit.

Before his trial, Smith moved for pretrial immunity, and the circuit
court held a hearing on his motion. At that hearing, Smith presented
evidence from Officer Donna Dunn that, on December 8, 2007, she and
another officer (Officer Buice) arrested Gunn for resisting arrest. (C. 565,
566.) According to Officer Dunn, she and Officer Buice "performed a
warrant check on Mr. Gunn" and learned that "there was a felony
warrant" for his arrest. (R. 566.) Officer Dunn and Officer Buice then
went to execute that warrant on Gunn. (R. 566.) When Officer Buice told
Gunn that he had a "probation revocation warrant," Gunn told them that
"he wasn't going to jail, and he attempted to fight and flee." (R. 567.)
Officer Dunn described the encounter with Gunn as follows:

"[Officer Dunn]: He swung at Officer Buice and hit him

with a closed fist. I dry-stunned him with my taser. That
means I took the taser cartridge off of the taser and had direct
contact with the taser to the skin, the clothing, what have you.

"[Smith's counsel]: What was the effect of the dry-stun

with the taser?

"[Officer Dunn]: There was no effect.

"[Smith's counsel]: None whatsoever?

"[Officer Dunn]: No, ma'am.

"[Smith's counsel]: Okay.

"[Officer Dunn]: He told us he wasn't going -- we weren't

going to take him to jail; he wasn't going to jail. He continued

9
to swing at us, kick at us, called us colorful expletives.

"[Smith's counsel]: He cursed you?

"[Officer Dunn]: Yes. He swung at Officer Buice again.

I attempted to dry-stun him again, made clear contact, again,
negative results. I stepped back, attached a taser cartridge to
the taser. After he pushed himself into me -- I think he was
trying to knock me down maybe -- I shot the taser at him. The
probes went into the skin, and he told me to stop hitting him
with the shocker thing as the taser was counting down.

"[Smith's counsel]: Okay.

"[Officer Dunn]: There was no contact. He and Officer

Buice embraced, for lack of a better term, and fell to the
ground.

"[Smith's counsel]: Okay. When you tell me embraced, it

was more of a wrestling move?

"[Officer Dunn]: Yes, ma'am. And they fell to the ground

together. I charged the taser again.

"[Smith's counsel]: And this would be the fourth time?

"[Officer Dunn]: Yes, ma'am.

"And there was no negative impact whatsoever. And at

that time I told him that I was going to have to shoot him, and
he said, well, that's all you had to say.

"[Smith's counsel]: Okay. And how did y'all get him

under control, Donna?

"[Officer Dunn]: That it was unholstering the weapons

10
 and saying we're going to have to -- I told him we're going to
have to shoot you. And then he was on the ground with Officer
Buice, and he put his arms up around his head.

"[Smith's counsel]: Okay. And did you charge him with

resisting arrest, Donna?

"[Officer Dunn]: Yes, ma'am."

(C. 566-69.) After the pretrial immunity hearing, the State moved the
circuit court to prevent Smith from presenting the evidence of Gunn's
"prior acts" against Officer Dunn and Officer Buice. (C. 426-34.) Smith
objected to the State's motion, arguing as follows:

"Essentially, during the Immunity Hearing held on July

26, 2018 there was undisputed evidence regarding an incident
involving Mr. Gunn and two (2) Montgomery Police Officers.
One of the two officers, testified about her experience with Mr.
Gunn that was eerily similar to the incident that occurred on
February 25, 2016.

"Specifically, the female police officer, Donna T. Dunn

(Mackey) testified that after serving a warrant on Mr. Gunn he
stated he was not going to jail, he became belligerent towards
the officers, he fought the officers, he was tased four times
with no affect, and it was not until they drew their weapon on
him did he comply.

"Furthermore, the officer testified that she feared for her

and her partner's life due to Mr. Gunn actions. Unfortunately,
Officer Smith did not have the luxury of having another officer
present with him on February 25, 2016, and Mr. Gunn similar
to the incident in 2007, inebriated on crack cocaine, decided he
was not going to jail."

(C. 440-41 (numbered paragraphs and citations omitted).) Smith argued

11
that the State's motion was due to be denied because, under the rules of
evidence, "the proper method to combat the presentation of Mr. Gunn's
trait of violence against law enforcement would not be a Motion in Limine,
but rather rebuttal testimony of his peacefulness." (C. 442-43.)
Thereafter, Smith filed another objection to the State's motion. (C. 517-
19.)

Before Smith's trial, the circuit court held a hearing on the State's
motion. (C. 542-59.) After that hearing, the circuit court granted the
State's motion in limine, precluding Smith from presenting Officer Dunn's
testimony. (C. 585.)

On appeal, Smith argues that the trial court "abused its discretion
by denying the admission of Mr. Gunn's prior specific act of assaulting a
police officer wherein a taser had no effect on him, and he did not cease
his assault until that officer drew her service weapon." (Smith's brief, p.
23.) According to Smith, because he "maintained self-defense, ... he was
entitled to present the jury with evidence that Mr. Gunn had previously
assaulted a police officer alongside the other eerily similar details of the
previous encounter." (Smith's brief, p. 26.)

Rule 404(a), Ala. R. Evid., provides that "[e]vidence of a person's

character or a trait of character is not admissible for the purpose of
proving action in conformity therewith on a particular occasion." But, in
a criminal case, "[e]vidence of a pertinent trait of character of the victim
of the crime offered by an accused, or by the prosecution to rebut the
same," is admissible. See Rule 404(a)(2)(i), Ala. R. Evid.

" 'Generally, the evidence of a victim's

character allowed by this subsubsection must be in
the form of testimony regarding reputation or
testimony stating an opinion, in accordance with
Rule 405(a). See Government of the Virgin Islands
v. Carino, 631 F.2d 226 (3d Cir. 1980); United
States v. Kills Ree, 691 F.2d 412 (8th Cir. 1982); E.
Cleary, McCormick on Evidence § 193 (3d ed.

12
 1984). Compare Higginbotham v. State, 262 Ala.
236, 78 So.2d 637 (1955) (holding that the accused
in a homicide case may not prove the victim's bad
character via specific prior acts of misconduct); C.
Gamble, McElroy's Alabama Evidence § 26.01(1)
(4th ed. 1991). Such proof would come through the
testimony of a character witness for the defense
who relates either the victim's general reputation
for a pertinent trait or the witness's own opinion of
the victim's character for the pertinent trait.

" 'Alabama case law permits a person charged

with homicide or assault to prove, in support of a
self-defense claim, that the alleged victim had a
bad general reputation for violence. Williams v.
State, 506 So. 2d 368 (Ala. Crim. App. 1986), cert.
denied, 506 So. 2d 372 (Ala. 1987); Bankston v.
State, 358 So. 2d 1040 (Ala. 1978). See also C.
Gamble, McElroy's Alabama Evidence § 33.01(1)
(4th ed. 1991); H.H. Henry, Annotation,
Admissibility of Evidence as to Other's Character
or Reputation for Turbulence on Question of
Self–Defense by One Charged With Assault or
Homicide, 1 A.L.R.3d 571 (1965).' "

Peraita v. State, 897 So. 2d 1161, 1186 (Ala. Crim. App. 2003). In other
words, under Rule 404, Ala. R. Evid., " 'the deceased's violent nature may
be proved only by evidence of reputation and not by specific acts.' " James
v. State, 61 So. 3d 357, 366 n.5 (Ala. Crim. App. 2010) (quoting Quinlivan
v. State, 627 So. 2d 1082, 1084 (Ala. Crim. App. 1992)). However, this
Court has noted that,

"[i]n some cases where the accused is relying

on self-defense, he will want to show that the
victim had previously committed specific acts of
violence towards other persons and that the

13
accused knew of such acts. The purpose of such
evidence will be to show the accused's reasonable
apprehension of peril. The general rule is that such
evidence is admissible if the person toward whom
the violence was directed had a very close
connection with the accused such that there would
be a reasonable apprehension of peril on the part of
the accused. It is quite clear that such violence
towards other persons is not admissible if it is
remote in time or lacks any connection in
circumstance with the accused. It would appear,
though not ever expressly stated in the cases, that
the following are the factors which will be
considered by the trial court in exercising its
discretion over whether to admit such acts of
violence:

" '(a) The distance, small or great,

between the time and place of the
reported former act of violence and the
presently charged homicide or assault.

" '(b) The presence or absence of a

tie of kinship or friendship between the
reported victim of deceased's former act
of violence and the accused. Such factor
logically indicating whether the accused
could reasonably feel that the
deceased's reported hostility would
exist against him also.

" '(c) The relationship between the

accused and the deceased after accused
was informed of the former act of
violence. If the accused continues to live
with or associate with the deceased,

14
 then such is a factor against admitting
the evidence of violence towards other
persons.

" '(d) The similarity or

dissimilarity of the immediate facts of
the presently charged homicide to the
facts of the reported former act of
violence. The more similar they are the
more likely the court is to admit the
former act of violence.'

"C. Gamble, McElroy's Alabama Evidence § 63.01(3) (4th ed.

1991) (footnotes omitted)."

Wright v. State, 641 So. 2d 1274, 1280 (Ala. Crim. App. 1993).

In sum, when a defendant presents a case of self-defense, he or she

may only present evidence of the victim's general reputation for violence
unless the defendant had knowledge of a specific act of violence committed
by the victim. And, even if the defendant had such knowledge, evidence
of that specific act may still be excluded by applying the above-quoted
factors to the particular case.

Here, Smith did not want to present evidence of Gunn's "bad general
reputation for violence" to help establish his claim of self-defense; rather,
Smith wanted to present evidence of one specific incident that occurred
between Gunn and two other police officers. Thus, to be admissible, Smith
had to show that he knew of the incident between Gunn and Officer Dunn
and Officer Buice. Nothing in the record before us shows that Smith had
any knowledge of that incident which occurred approximately five years
before Smith joined the Montgomery Police Department. Consequently,
the circuit court did not abuse its discretion when it granted the State's
motion in limine and precluded Smith from presenting evidence of the
altercation between Gunn and Officer Dunn and Officer Buice.

15
 II.

Smith next argues that the trial court erred when it denied him "a
second immunity hearing because the previous judge's implied bias
tainted the first hearing and his findings of fact should have been set
aside following his ordered recusal." (Smith's brief, p. 27.) Because Smith
proceeded to trial and was convicted by a jury of heat-of-passion
manslaughter, his argument is moot.

For context, the following occurred before Smith's trial:

"On March 2, 2016, Smith was arrested and charged with

murder. On November 18, 2016, Smith was indicted for
murder by the Montgomery County Grand Jury. The case was
assigned to Circuit Judge Gregory O. Griffin, Sr. Public
discourse and community protests followed the shooting of
Gunn and the subsequent arrest and indictment of Smith.
Local political figures participated in the protests and public
discourse, and those events received frequent and widespread
media coverage, including coverage of the racial aspects of the
case (Gunn was black; Smith is white). On December 2, 2016,
Smith moved the trial court for a change of venue, asserting
that the case had received extensive media coverage and had
been 'enmeshed with racial undertones by citizens and political
figures within the Montgomery County community.' On May
15, 2017, Smith moved Judge Griffin to recuse himself from
the case following an incident in which Judge Griffin, who is
black, was stopped by the Montgomery Police Department
while walking in his neighborhood and then indicated his
frustration with the stop by making a comment about it on
social media. Specifically, Judge Griffin posted the following to
his Facebook page:

" '[I]t was aggravating to be detained when the only

thing I was guilty of was being a black man
walking down the street in his neighborhood with

16
 a stick in his hand who just happened to be a
Montgomery County Circuit Judge in Montgomery,
Alabama -- Lord Have Mercy!!!!!'

"Judge Griffin's Facebook post garnered over 200

comments from the public and the post was 'shared' over 3,000
times. Smith argued that the stop of Gunn in this case was
similar to the stop of Judge Griffin and that to avoid the
appearance of impropriety it was necessary for Judge Griffin
to recuse himself from the proceedings. Following a hearing on
the motion to recuse, in which a particularly contentious
debate occurred between Judge Griffin and Smith's counsel,
Judge Griffin, on May 10, 2017, entered an order denying the
motion to recuse. The trial court then, on June 13, 2017,
entered an order denying the motion for a change of venue.
Smith petitioned the Court of Criminal Appeals for a writ of
mandamus as to the recusal issue. On August 14, 2017, the
Court of Criminal Appeals denied Smith's petition for a writ of
mandamus, without an opinion. Ex parte Smith, 265 So. 3d
370 (Ala. Crim App. 2017) (table). Smith then petitioned this
Court for a writ of mandamus on the recusal issue. On
February 23, 2018, this Court entered an order denying the
petition. Ex parte Smith, 277 So. 3d 961 (Ala. 2018) (table).

"On August 14, 2017, Smith moved the trial court for
immunity from prosecution pursuant to § 13A-3-23, Ala. Code
1975, arguing that at the time of the shooting he was acting in
his official capacity as a policeman for the City of Montgomery
and acting 'in self defense and/or in the reasonable defense of
others.' Smith requested an evidentiary hearing on the
matter. Following a hearing, the trial court, on July 26, 2018,
entered an order denying Smith's motion for immunity from
prosecution. At the close of the hearing, and with the media
present in the courtroom, the trial court stated the following
in open court:

17
 " 'Often at probation revocation hearings, I
have police officers from the Montgomery Police
Department to testify, and it's their word against
the defendant's word, and I look at the credibility
of the officer. Okay. And, quite often, the officer is
credible.

" 'But I have to admit to you that I did not

find the officer's testimony today to be credible,
and, therefore, I do not feel that you have met your
burden of proof that he's entitled to immunity, and
this trial will proceed on August 13.'

"On July 28, 2018, Smith again moved Judge Griffin to

recuse himself and for a change of venue, asserting that the
trial court had invited representatives of the media into the
courtroom for the immunity hearing and then proclaimed at
the close of that hearing that Judge Griffin did not find
Smith's testimony to be credible. Smith contended that that
statement in front of the media representatives, which then
published the statement, evidenced a bias on behalf of Judge
Griffin and had the effect of tainting the public's perception of
Smith, thereby tainting the eventual jury pool. Thus, Smith
argued that Judge Griffin should recuse himself and that the
venue of the case should be changed. On July 31, 2018, the
trial court entered an order denying the motions to recuse and
for a change of venue. Smith petitioned the Court of Criminal
Appeals for a writ of mandamus asking that court to enter an
order finding Smith immune from prosecution pursuant to §
13A-3-23, Ala. Code 1975, and dismissing the charge against
him or, in the alternative, to direct the trial court to set aside
its order denying the motions for recusal and change of venue
and to enter an order granting those motions. The Court of
Criminal Appeals denied the petition for a writ of mandamus,
without an opinion. Ex parte Smith (CR-17-1042, August 3,
2018), ___ So. 3d ____ (Ala. Crim. App. 2018) (table)."

18
Ex parte Smith, 282 So. 3d 831, 834-35 (Ala. 2019) (footnote omitted).
Thereafter, Smith filed a petition for a writ of mandamus in the Alabama
Supreme Court. The Supreme Court upheld the circuit court's denial of
Smith's request for pretrial immunity, but concluded, "[b]ased on the
totality of the facts and the circumstances presented in this particular
case, ... that Smith ha[d] satisfied his burden of showing that the comment
made by Judge Griffin provide[d] a reasonable basis for questioning Judge
Griffin's impartiality." Ex parte Smith, 282 So. 3d at 843. Thus, the
Supreme Court granted Smith's mandamus petition as to Judge Griffin's
recusal, and it granted Smith's mandamus petition as to his request for
a change of venue. Id. at 845.

After Judge Griffin recused from Smith's case, Judge Philip B.

McLauchlin, Jr., was appointed to preside over Smith's case. (C. 514.)
Smith then filed a "Renewed Motion for Immunity from Prosecution and
Request for Evidentiary Hearing." (C. 521-23.) Judge McLauchlin denied
Smith's "renewed motion." (C. 583.) Thereafter, Smith's case was
transferred to Dale County (C. 586). Instead of challenging Judge
McLauchlin's ruling on his renewed motion for pretrial immunity, Smith
proceeded to trial and was convicted of heat-of-passion manslaughter.

Recently, this Court explained that,

"[a]lthough this Court has previously addressed the

impact a jury's verdict has on substantive arguments
concerning immunity under § 13A-3-23(d), this Court has not
addressed what impact, if any, a jury's guilty verdict has on an
alleged procedural defect with an immunity hearing. But it
stands to reason that if substantive arguments as to the merits
of a trial court's decision at an immunity hearing are rendered
moot when a jury verdict has been rendered in a case, then
arguments concerning procedural defects with an immunity
hearing are also rendered moot when a jury verdict has been
rendered in a case.

"The Alabama Supreme Court has explained the

19
mootness doctrine as follows:

" ' " ' "A moot case or question is a case or

question in or on which there is no real
controversy; a case which seeks to determine an
abstract question which does not rest on existing
facts or rights, or involve conflicting rights so far as
plaintiff is concerned." ' Case v. Alabama State Bar,
939 So. 2d 881, 884 (Ala. 2006) (quoting American
Fed'n of State, County & Mun. Employees v.
Dawkins, 268 Ala. 13, 18, 104 So. 2d 827, 830-31
(1958)). 'The test for mootness is commonly stated
as whether the court's action on the merits would
affect the rights of the parties.' Crawford v. State,
153 S.W.3d 497, 501 (Tex. App. 2004) (citing VE
Corp. v. Ernst & Young, 860 S.W. 2d 83, 84 (Tex.
1993)). 'A case becomes moot if at any stage there
ceases to be an actual controversy between the
parties.' Id. (emphasis added) (citing National
Collegiate Athletic Ass'n v. Jones, 1 S.W. 3d 83, 86
(Tex. 1999)).

" ' "... 'A moot case lacks justiciability.' Crawford,

153 S.W.3d at 501. Thus, '[a]n action that
originally was based upon a justiciable controversy
cannot be maintained on appeal if the questions
raised in it have become moot by subsequent acts
or events.' Case, 939 So. 2d at 884 (citing
Employees of Montgomery County Sheriff's Dep't v.
Marshall, 893 So. 2d 326, 330 (Ala. 2004))." '

"Underwood v. Alabama State Bd. of Educ., 39 So. 3d 120, 127

(Ala. 2009) (quoting Chapman v. Gooden, 974 So. 2d 972,
983-84 (Ala. 2007)).

"Here, when Todd moved for immunity under §

20
 13A-3-23(d), there was certainly a controversy between Todd
and the State -- that is, whether Todd was justified in using
force against Jones and, thus, was immune from criminal
prosecution. ... Although Todd complains about the timing of
the immunity hearing, the fact remains that a hearing was
held, that the trial court denied Todd's motion, that Todd's
case was submitted to the jury on his theory of self-defense,
and that the jury found Todd guilty beyond a reasonable doubt
of second-degree assault. The jury's verdict ... eliminated any
controversy between Todd and the State that Todd was
justified in using force against Jones. Because the jury verdict
eliminated the controversy by answering the question whether
Todd was justified in using force against Jones, this Court
cannot take any action that ' "would affect the rights of the
parties." ' Underwood, supra. In other words, as with
substantive arguments concerning immunity hearings on
appeal, a jury verdict renders moot any argument concerning
procedural defects with an immunity hearing. Smith, 279 So.
3d at 1202."

Todd v. State, [Ms. CR-19-0239, Feb. 5, 2021] ___ So. 3d ___, ___ (Ala.
Crim. App. 2021).

Here, just as in Todd, the jury's finding Smith guilty of heat-of-

passion manslaughter rendered moot any argument concerning any
procedural defects with Smith's immunity hearing, including his
argument that Judge McLauchlin should have conducted a second hearing
on Smith's claim for pretrial immunity after Judge Griffin recused himself
from Smith's case. "[A]s with substantive claims challenging a trial
court's decision on a motion for immunity, the only option a defendant has
to properly challenge procedural defects with an immunity hearing is by
filing a petition for a writ of mandamus with this Court."7 Todd, ___ So.

7
To be clear, this is not a case in which the circuit court refused to
hold a pretrial immunity hearing. Rather, the circuit court conducted a
pretrial-immunity hearing, concluded that Smith was not entitled to

21
3d at ___.

Because Smith's pretrial-immunity argument is moot, we do not

address it.

III.

Finally, Smith argues that "[t]he evidence is legally insufficient to

sustain a conviction for 'heat of passion' manslaughter, because Mr.
Gunn's dramatic, unforeseen action was an intervening force that broke
the chain of causation, Gunn was not privileged to flee or use force against
Officer Smith, Smith was lawfully discharging his duties as a police
officer, and the State presented no evidence of provocation." (Smith's
brief, p. 45.) Smith's argument regarding sufficiency of the evidence for
his heat-of-passion manslaughter conviction, a lesser-included offense of
the murder charge outlined in Smith's indictment, is not preserved for
appellate review.

It is well settled that

" ' "[r]eview on appeal is restricted to

questions and issues properly and timely raised at
trial." Newsome v. State, 570 So. 2d 703, 717 (Ala.
Crim. App. 1989). "An issue raised for the first time
on appeal is not subject to appellate review because
it has not been properly preserved and presented."
Pate v. State, 601 So. 2d 210, 213 (Ala. Crim. App.
1992). " '[T]o preserve an issue for appellate review,
it must be presented to the trial court by a timely
and specific motion setting out the specific grounds
in support thereof.' " McKinney v. State, 654 So. 2d

immunity, and that decision was upheld by the Alabama Supreme Court.
Instead, Smith argues that Judge McLauchlin should have held a second
pretrial-immunity hearing after Judge Griffin was made to recuse from
Smith's case.

22
 95, 99 (Ala. Crim. App. 1995) (citation omitted).
"The statement of specific grounds of objection
waives all grounds not specified, and the trial court
will not be put in error on grounds not assigned at
trial." Ex parte Frith, 526 So. 2d 880, 882 (Ala.
1987). "The purpose of requiring a specific objection
to preserve an issue for appellate review is to put
the trial judge on notice of the alleged error, giving
an opportunity to correct it before the case is
submitted to the jury." Ex parte Works, 640 So. 2d
1056, 1058 (Ala. 1994).'

"Ex parte Coulliette, 857 So. 2d 793, 794-95 (Ala. 2003). A

challenge to the sufficiency of the evidence must be raised in
a motion to exclude, a motion for a judgment of acquittal, or a
motion for a new trial. See Washington v. State, 555 So. 2d
347 (Ala. Crim. App. 1989). A motion for a judgment of
acquittal on the charged offense will not preserve for appellate
review a challenge to the sufficiency of the evidence to support
a conviction for a lesser-included offense. See Ellis v. State,
641 So. 2d 333 (Ala. Crim. App. 1994); Washington, supra."

Collier v. State, 293 So. 3d 961, 965 (Ala. Crim. App. 2019).

Here, as noted above, Smith was charged with murder under § 13A-
6-2, Ala. Code 1975. At the close of the State's evidence on that charged
offense, the following exchange occurred:

"[Smith's counsel]: Your Honor, we have a -- the Defense

has a motion, Your Honor.

"THE COURT: Okay.

"[Smith's counsel: Your Honor, at this time, after the

presentation of all of the evidence by the State, on behalf of
Officer Aaron Cody Smith, the Defense moves for a directed

23
 verdict of acquittal, believing that the State has failed to prove
the charges of intentional murder against the Defendant.

"THE COURT: Motion denied."

(R. 503.) After Smith presented testimony on his own behalf, the defense
"renew[ed] its motion for a directed verdict and acquittal" as to the charge
of intentional murder, which the circuit court again denied. (R. 677.)

Thereafter, the circuit court (at the State's request and over Smith's
objection) instructed the jury on the lesser-included offense of heat-of-
passion manslaughter.8 (R. 709-11.) The jury found Smith guilty of heat-
of-passion manslaughter. (R. 746.)

After the jury's verdict, Smith did not file a Rule 24, Ala. R. Crim.
P., motion for a new trial. Instead, Smith filed a motion for an appeal
bond (C. 616-17, 645-48), a motion to reconsider sentence (C. 649-51), and
a renewed motion to reconsider sentence (C. 658-67). At no point after the
jury's verdict did Smith argue that the State's evidence was insufficient
to convict him of heat-of-passion manslaughter. Thus, Smith's argument
is not properly before this Court for appellate review.

Conclusion

Based on these reasons, the judgment of the circuit court is affirmed.

AFFIRMED.

Windom, P.J., and Kellum, McCool, and Minor, JJ., concur.

8
Smith does not argue that the circuit court erred when it instructed
the jury on heat-of-passion manslaughter. Nor does Smith argue that
heat-of-passion manslaughter is not a lesser-included offense under the
circumstances of this case.

24