Derrick D. Peterson v. State of Alabama ( 2023 )

REL: March 24, 2023
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) 229-0650), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.
Alabama Court of Criminal Appeals
OCTOBER TERM, 2022-2023
_________________________
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_________________________
Derrick D. Peterson
v.
State of Alabama
Appeal from Jefferson Circuit Court
(CC-20-673; CC-20-674; and CC-20-675)
KELLUM, Judge.
Derrick D. Peterson was convicted of one count of intentional
murder, see § 13A-6-2, Ala. Code 1975, and two counts of attempted
murder, see §§ 13A-4-2 and 13A-6-2, Ala. Code 1975. The trial court
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sentenced him to life imprisonment for the murder conviction and to 20
years' imprisonment for each of the attempted-murder convictions.
The evidence adduced at trial indicated the following. On the night
of July 15, 2019, Peterson shot and killed Shaneia Causwell ("Shaneia"),
and shot and injured Shaneia's fiancé, Brandon Dozier ("Brandon"), and
her brother, Stefon Causwell ("Stefon"). The shootings occurred in front
of the house where Shaneia, Brandon, and Stefon lived with Shaneia's
mother, Yvonne Causwell ("Yvonne"), and her husband, Robert Wright
("Robert"), as well as Shaneia and Stefon's niece, Shaniyah Roscoe
("Shaniyah"), and Shaneia's two young children. Shaneia died from a
single gunshot wound that entered the left side of her back, passed
through her left lung and her heart, and exited her chest just under her
right breast. Brandon was shot once in the chest, and Stefon was shot
once in the back of his arm, once in the leg, and five times in the back.
Six shell casings were found at the scene and forensic examination
indicated that all six had been fired from the same gun. The gun was
never found.
In the early afternoon the day of the shootings, Shaniyah's high-
school friend, Ramiyah Pettway ("Ramiyah"), and other friends came to
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Yvonne's house to see Shaniyah. Stefon asked Shaniyah's friends to
leave and told Shaniyah that she could not have friends over to the
house.1 Shaneia then telephoned Ramiyah to tell her that she could not
come back to the house. According to Shaniyah, Ramiyah's sister,
Ca'Niyah Pettway ("Ca'Niyah"), got involved in the telephone
conversation and Ca'Niyah and Shaneia argued. Ramiyah later
contacted Shaniyah and told her that she would return Shaniyah's iPad
tablet computer. That evening, Ramiyah asked Ca'Niyah to return
Shaniyah's iPad for her, and Ca'Niyah and her friend, Dre'Mayah Glenn
("Dre'Mayah"), drove to Shaniyah's house to return the iPad. According
to Shaniyah, after returning the iPad, the two left.
Shortly thereafter, as Shaneia and Shaniyah were leaving to go to
the store, and Stefon, Brandon, and Brandon's cousin, Clint, were
returning from visiting friends, Peterson, who was Ca'Niyah's boyfriend,
pulled up in front of Yvonne's house in his vehicle. A few moments later,
Ca'Niyah and Dre'Mayah arrived in another vehicle. All three got out of
their vehicles. Stefon approached Peterson and asked who he was there
1Testimony was conflicting as to why Shaniyah was not permitted
to have friends visit.
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to see; Peterson said he came to see Shaniyah. Shaneia approached
Ca'Niyah and asked whether there was a problem. A verbal argument
ensued between the two women; it did not turn physical. Yvonne and
Robert, having heard the commotion outside, came out and ordered
everyone who did not live there to leave their property.
Testimony from the State's eyewitnesses was largely consistent as
to what happened next. Clint immediately left in his pickup truck and
everyone began to disperse. However, Peterson, who had been standing
next to the open driver's door of his vehicle, reached inside his vehicle
and rummaged around as if he were looking for something. Brandon
immediately approached Peterson and asked if he was reaching for a gun.
Ca'Niyah then pushed Brandon, and he stumbled down the street in front
of Yvonne's house, which was on a hill. Peterson raised a gun and started
firing. Both Robert and Yvonne testified that Peterson specifically
targeted Brandon, Shaneia, and Stefon. According to Yvonne, Peterson
first shot Brandon as he stumbled down the hill, then turned around and
shot Shaneia as she was running up the hill in the opposite direction, and
finally, he turned and shot Stefon as Stefon ran across the street. All the
State's eyewitnesses indicated that Peterson was the only person who
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had a gun that night and that no physical altercation had occurred before
Ca'Niyah pushed Brandon and Peterson pulled out a gun and started
shooting. They denied seeing Brandon punch Peterson, and Brandon
denied doing so.
Peterson asserted that he was acting in self-defense when he shot
Brandon, but he claimed that he did not shoot Shaneia or Stefon.
Peterson testified that when he first arrived at Yvonne's house, Clint
approached him wielding a gun and asked who he was. Clint's truck was
parked in front of Peterson's vehicle and, when Ca'Niyah and Dre'Mayah
arrived, they parked behind Peterson's vehicle. He saw Ca'Niyah and
Shaneia talking, and several people were standing around his vehicle,
effectively blocking him in. Yvonne then came outside and told everyone
to leave. Contrary to the State's witnesses, Peterson said that Clint did
not leave but that he remained standing in front of Peterson's vehicle. As
Ca'Niyah and Dre'Mayah turned to walk toward their vehicle, Brandon
and Stefon stopped them, acting aggressively toward them. According to
Peterson, Brandon then approached him and Ca'Niyah stood between
them. Brandon reached around Ca'Niyah and punched him, causing him
to fall into his vehicle. He grabbed his gun from between the front seats
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and got out of his vehicle, firing several shots at Brandon. Peterson said
that, given the number of people present who were effectively blocking
his vehicle, Clint's possession of a gun, and Brandon's punching him, he
feared for his life, thinking "they fixing to try to kill me." (R. 563.) On
cross-examination, Peterson denied that he shot Stefon or Shaneia, even
accidently, while shooting at Brandon. He said that he thought Clint had
shot Stefon, but he did not testify as to who he thought shot Shaneia. On
re-direct examination, when asked "if someone else was shot or injured
by your action, then it was totally unintended," Peterson replied in the
affirmative. (R. 579.) After the shooting, Peterson said, the crowd
around his vehicle dispersed and he left.
Peterson also called Ca'Niyah and Dre'Mayah to testify on his
behalf; their testimony was largely consistent with Peterson's. They both
said that when they arrived at Yvonne's house the second time, Peterson
was sitting in his vehicle and there were some 5 to 10 men outside. Clint
ordered them out of their vehicle at gunpoint. When they got out,
Shaneia approached Ca'Niyah and they argued about a telephone
conversation. Ca'Niyah denied ever speaking with Shaneia on the
telephone, and Dre'Mayah testified that it was Ca'Niyah's mother, not
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Ca'Niyah, with whom Shaneia had spoken. After Yvonne and Robert
ordered everyone to leave, Ca'Niyah and Dre'Mayah tried to return to
their vehicle but Brandon and Stefon would not let them leave. Peterson
then got out of his vehicle and tried to de-escalate the situation, at which
point Brandon approached him. Ca'Niyah stepped in front of Peterson,
but Brandon "reached over Ca'Niyah" (R. 489), punched Peterson, and
"tried to snatch his chains" from around his neck. (R. 497.) Peterson fell
into his vehicle and then got back out, firing a gun. Ca'Niyah and
Dre'Mayah ran to their vehicle and left.
After both sides rested and the trial court instructed the jury on the
applicable principles of law, including the lesser-included offense of first-
degree assault as to Brandon and Stefon, the jury found Peterson guilty
of the intentional murder of Shaneia and the attempted murders of
Brandon and Stefon as charged in the three indictments. Peterson filed
a motion for a new trial, which the trial court denied after a hearing. This
appeal followed.
I.
Peterson contends that the trial court erred in not allowing him to
cross-examine Brandon about Brandon's pending misdemeanor charge of
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possessing a pistol without a license because, he says, evidence of the
pending charge was admissible under Rule 404(b), Ala. R. Evid., to show
motive and opportunity. Specifically, he argues:
"The trial court abused its discretion in preventing Peterson’s
counsel from questioning [Brandon] regarding his pending
criminal charges because [Rule] 404(b) allows it. Rule 404(b)
allows for the introduction of specific acts of conduct if
introduced for some other purpose such as motive, intent,
opportunity or bias. See Ala. R. Evid. 404(b). A permissible
purpose for this evidence would be to show [Brandon's] motive
to lie about having a gun or being around a gun. If he was in
possession of a gun as a felon, he would be subjected to
additional charges. Also, if he was out on bond for one charge
and was in possession of a firearm while out on bond, he would
have admitted to violating the conditions of his bond.
[Brandon] had many motives to be less than truthful about
his conduct because of his pending gun charge. See Smith v.
State, 246 So. 3d 1086 (Ala. Crim. App. 2017) (finding no error
in allowing photographs of defendant’s tattoos that include
the word 'gangsta' for the purpose of proving identity under
404(b)). Peterson also had a permissible purpose to show that
[Brandon] had the opportunity to have a firearm recently and
perhaps did have a firearm on the night in question."
(Peterson's brief, pp. 61-62.) Alternatively, Peterson argues that, even if
evidence of the pending charge was inadmissible under Rule 404(b),
Brandon's testimony on direct examination "that he did not have a gun
[the night of the shooting] because 'I couldn't even have guns,' opened the
door to allow Peterson to question [Brandon] about the recent pending
firearm charge." (Peterson's brief, p 62.)
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Before trial, the State moved in limine to prohibit the defense from
questioning Brandon about any pending criminal charges against him,
arguing that, although Brandon "does have prior convictions that are fair
game for cross-examination … he also has pending cases in this county
that we believe should not be asked about." (R. 54.) Defense counsel
argued that "the question of possession of a firearm with regard to the
new pending case might become relevant" if Brandon "testifies in a
particular manner." (R. 55-56.) The prosecutor agreed that, "if he says
that never in my life have I carried a firearm, then I understand how it
could be relevant," but he argued that a "fishing expedition or trying to
force open that door … would be improper." (R. 56.) The trial court
reserved ruling on the motion, instructing defense counsel to request a
sidebar "[b]efore you go there with him." (R. 56.)
During direct examination of Brandon, the following occurred:
"[Prosecutor]: At any point, did you pull a gun on
[Peterson]?"
"[Brandon]: No, sir, I ain't have a gun.
"[Prosecutor]: Okay.
"[Brandon]: I just -- I couldn't even have guns.
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"[Prosecutor]: Okay. And let's talk about that a little
bit. You've been in trouble before, haven't you, [Brandon]?"
"[Brandon]: Yes, sir.
"[Prosecutor]: You've been convicted of possession -- a
drug possession and marijuana possession, right?
"[Brandon]: Yes, sir.
"[Prosecutor]: And that's why you didn't have a gun that
day?
"[Brandon]: Yes, sir.
"[Prosecutor]: Or one of the reasons you didn't have a
gun that day?"
"[Brandon]: Yes, sir. I had just came out of prison."
(R. 188-89.)
During cross-examination, the following occurred:
"[Defense counsel]: What is the prior felony that you
went to prison for, sir?
"[Brandon]: Marijuana.
"[Defense counsel]: All right. Do you also have a
possession of a firearm involved with that?
"[Prosecutor]: Objection, Your Honor.
"THE COURT: Sustained."
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(R. 217.) Defense counsel requested a sidebar, and, after a discussion
regarding whether the trial court's pretrial directive to request a sidebar
applied to Brandon's pending charge for possessing a pistol without a
license or his prior conviction for possessing a pistol without a license,
the following occurred:
"THE COURT: … You finish cross-examining
[Brandon] and no mention of a firearm unless you have a
felony conviction or unless [Brandon] says something that
allows you to question him about a firearm.
"….
"[Defense counsel]: I want to ask him whether or not --
since he says he -- the reason that he didn't have a gun on the
night of this incident is because he says, 'I can't have a gun
because I've been to prison.' I understand the prior felony
thing, but if, in fact, he was arrested within the last several
months and it shows that that's a complete disconnect from
him stating, 'I can't have a gun,' and that he didn't have a gun
on the 19th when, in fact, he had a gun within the last 2
months.
"THE COURT: … If the witness, Mr. Brandon Dozier,
had testified that I've never in my life seen a gun, been around
a gun, I think that is a different story.
"But based upon his statement in response to the State,
we have not reached the point where you can just ask him
about a weapon.
"Now, you can ask him, did he have a gun out there on
this particular occasion. You can ask him any question about
did he have a gun on this particular occasion, but you cannot
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ask him about any charges, any weapons charges, or question
him about any misdemeanor conviction for a gun offense."
(R. 222-24.)
Peterson never argued to the trial court that evidence of Brandon's
pending gun charge was admissible as substantive evidence under Rule
404(b) to show either motive or opportunity. Rather, he argued that
evidence of the pending charge was admissible as impeachment. "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). "A
defendant is bound by the grounds of objection stated at trial and may
not expand those grounds on appeal." Griffin v. State, 591 So. 2d 547,
550 (Ala. Crim. App. 1991). Therefore, Peterson's Rule 404(b) argument
was not properly preserved for review.
Peterson also argues that Brandon's testimony on direct
examination opened the door to his being questioned about the pending
charge because, he says, Brandon's testimony was inconsistent with his
possessing a gun two months before the trial. According to Peterson,
Brandon's testimony "is exactly the scenario that the curative
admissibility doctrine is meant to apply to." (Peterson's brief, p. 63.)
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"It is well settled that '[w]hen one party opens the door
to otherwise inadmissible evidence, the doctrine of "curative
admissibility" provides the opposing party with "the right to
rebut such evidence with other illegal evidence." ' Ex parte
D.L.H., 806 So. 2d 1190, 1193 (Ala. 2001), quoting Charles W.
Gamble, McElroy's Alabama Evidence § 14.01 (5th ed.1996).
' " 'A party who has brought out evidence on a certain subject
has no valid complaint as to the trial court's action in allowing
his opponent or adversary to introduce evidence on the same
subject.' " ' Id., quoting Hubbard v. State, 471 So. 2d 497, 499
(Ala. Crim. App. 1984), quoting in turn Brown v. State, 392
So. 2d 1248, 1260 (Ala. Crim. App. 1980)."
Minor v. State, 914 So. 2d 372, 397 (Ala. Crim. App. 2004). In addition,
"[a]n act of a witness which is inconsistent with the witness' present
testimony about a material matter is a self-contradiction and, as such, is
provable for purposes of impeachment." Charles W. Gamble and Robert
J. Goodwin, McElroy's Alabama Evidence § 155.02(e) (6th ed. 2009).
Brandon testified on direct examination that he did not have a gun the
night of the shooting because he had just been released from prison and
he could not have guns. The fact that Brandon was in possession of a gun
over three years later is not necessarily inconsistent with that testimony.
We agree with the trial court and the prosecutor that, if Brandon had
testified that he had never possessed a gun, or even that he had not
possessed a gun since his release from prison, then he may have opened
the door to being impeached with the pending charge against him. See,
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e.g., Willis v. State, 449 So. 2d 1258, 1260-61 (Ala. Crim. App. 1984)
(upholding impeachment of defendant with misdemeanor gun charge
after he "denied ever having carried a gun or failing to register a gun").
But Brandon did not testify in that manner.
We also point out that any attempt to impeach Brandon by
insinuating that he lied about not possessing a gun the night of the
shooting would have called into question Peterson's own credibility and
the credibility of defense witnesses Ca'Niyah and Dre'Mayah, because all
three testified, consistent with Brandon's testimony, that Brandon did
not have a gun the night of the shooting. Although Peterson argues that
it was "critical to the defense" (Peterson's brief, p. 63) to impeach
Brandon in order to call into question his testimony that he did not punch
Peterson, given that the method by which Peterson sought to impeach
Brandon would have also impeached Peterson's own testimony and that
of his defense witnesses, we fail to see any harm in the trial court's
precluding Peterson from doing so. See Rule 45, Ala. R. App. P.
Therefore, the trial court did not err in not allowing Peterson to
cross-examine Brandon regarding his pending gun charge, and Peterson
is entitled to no relief on this claim.
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II.
Peterson also raises several issues regarding the trial court's jury
instructions.
" 'It has long been the law in Alabama that a trial court has broad
discretion in formulating jury instructions, provided those instructions
are accurate reflections of the law and facts of the case.' " Harbin v. State,
14 So. 3d 898, 902 (Ala. Crim. App. 2008) (quoting Culpepper v. State,
827 So. 2d 883, 885 (Ala. Crim. App. 2001)). "A trial court's oral charge
to the jury must be construed as a whole, and must be given a reasonable
-- not a strained -- construction." Pressley v. State, 770 So. 2d 115, 139
(Ala. Crim. App. 1999), aff'd, 770 So. 2d 143 (Ala. 2000). "When reviewing
a trial court's instructions, ' "the court's charge must be taken as a whole,
and the portions challenged are not to be isolated therefrom or taken out
of context, but rather considered together." ' " Williams v. State, 795 So.
2d 753, 780 (Ala. Crim. App. 1999), aff'd, 795 So. 2d 785 (Ala. 2001)
(quoting Self v. State, 620 So. 2d 110, 113 (Ala. Crim. App. 1992), quoting
in turn Porter v. State, 520 So. 2d 235, 237 (Ala. Crim. App. 1987)).
Moreover, "every accused is entitled to have charges given, which would
not be misleading, which correctly state the law of his case, and which
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are supported by any evidence, however, weak, insufficient, or doubtful
in credibility." Chavers v. State, 361 So. 2d 1106, 1107 (Ala. 1978). " 'The
standard of review for jury instructions is abuse of discretion.' " Grant v.
State, 324 So. 3d 887, 893 (Ala. Crim. App. 2020) (quoting Petersen v.
State, 326 So. 3d 535, 609 (Ala. Crim. App. 2019)).
A.
Peterson first contends that the trial court erred in instructing the
jury that his defense of self-defense applied only to Brandon and not to
Shaneia or Stefon. He argues that, under the doctrine of transferred
intent, "self-defense may transfer to the unintended victim." (Peterson's
brief, p. 27.) Because, he says, there was evidence supporting the theory
that he accidentally shot Shaneia and Stefon when he was defending
himself against Brandon, Peterson maintains that he was entitled to a
self-defense instruction as to all three victims. 2 In the alternative with
respect to Stefon, he argues that there was a reasonable theory of the
2Peterson recognizes that the doctrine of transferred intent does not
apply to attempted murder. See Cockrell v. State, 890 So. 2d 174 (Ala.
2004). He argues, however, that because the trial court instructed the
jury on assault as a lesser-included offense of the attempted-murder
charge involving Stefon, and the doctrine of transferred intent does apply
to the offense of assault, he was entitled to an instruction on self-defense
with respect to the lesser-included offense of assault involving Stefon.
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evidence that he was acting intentionally when he shot Stefon, but that
he did so in self-defense because Stefon was standing next to Brandon
when Brandon hit him, and he feared for his life not just from Brandon
but also from Stefon. Peterson also takes issue with the trial court's
giving State's requested jury instruction no. 14, which reads:
"For self-defense to apply, the injured and/or deceased party
must have been the party against whom the Defendant was
defending himself. If the injured and/or deceased parties are
not the intended target(s) or aggressor(s), and you do not find
that their injuries or death was purely accidental, self-defense
does not apply."
(C. 34.) He argues that this instruction was an inaccurate statement of
the law, that it was confusing and misleading, and that it contradicted
the trial court's instruction that his defense of self-defense applied only
to Brandon, leaving the jury "to do mental gymnastics to decide if they
could consider self-defense with regard to Shaneia." (Peterson's brief, p.
29.) According to Peterson, even though the jury rejected his claim of
self-defense as to Brandon, the trial court's failure to instruct the jury on
self-defense as to all three victims was not harmless because the State's
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requested jury instruction no. 14 "was so confusing [as] to infect
Peterson's substantial rights and his trial." (Peterson's brief, p. 32.) 3
The record reflects that the trial court initially instructed the jury
on self-defense in accordance with the Alabama Pattern Jury
Instructions, Criminal Proceedings, Defenses, Justification and Excuse,
Self-Defense (Deadly Physical Force) (adopted October 17, 2014) (found
at https://judicial.alabama.gov/docs/library/docs/13A-3-23.pdf on the date
this opinion was released) as follows:
"One of the issues in this case is the issue of self-defense.
The law in Alabama states that a person may use deadly
physical force and is legally presumed to be justified in using
deadly physical force in self-defense or in the defense of
another person if the person reasonably believes that another
3We reject the State's argument that this issue was not properly
preserved for review. Although the State is correct that Peterson did not
state grounds when he formally objected to State's requested instruction
no. 14, that instruction was submitted at the request of the trial court
after a lengthy discussion regarding whether self-defense applied to
Brandon, Shaneia, and Stefon and, if so, in what manner, with the
prosecutor specifically relying on Gettings v. State, 32 Ala. App. 644, 647,
29 So. 2d 677, 680 (Ala. Crim. App. 1947), which we discuss below. The
instruction was directly related to that discussion, and Peterson was
clear during the discussion that he believed he was entitled to a self-
defense instruction as to all three victims. "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). The trial court was on notice of the error alleged
by Peterson.
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person is using or about to use unlawfully deadly -- unlawful
physical force. I'm going to re-read that to you again.
"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 using or about to use unlawful deadly physical force.
"The defendant does not have a duty to retreat and has
the right to stand his or her ground so long as he or she is
justified in using deadly physical force and not engaged in an
illegal activity and is in a place where he or she has a right to
be located.
"The defendant is not justified in using deadly physical
force if, 1, with intent to cause physical injury or death to
another person, he or she provoked the use of unlawful
physical force by such other person.
"Or 2, he or she was the initial aggressor, except that his
or her use of physical force upon another person under the
circumstances is justifiable if he withdraws from the
encounter and effectively communicates to the other person
his or her intent to do so. But the latter person, nevertheless,
continues or threatens the use of unlawful physical force.
"The defendant does not have the burden of proving that
he or she acted in self-defense.
"To the contrary, once self-defense becomes an issue, the
State has the burden of proving beyond a reasonable doubt
that the defendant did not act in self-defense.
"Deadly physical force is force that under the
circumstances in which it is used is readily capable of causing
death or serious physical injury.
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"A reasonable belief is a belief formed in reliance upon
reasonable appearances. It is a belief not formed recklessly
or negligently. The test of reasonableness is not whether the
defendant was correct in his or her belief, but whether the
belief was reasonable under the circumstance existing at the
time."
(R. 637-39.) Immediately following this instruction, the court stated:
"Now this instruction concerning self-defense is for the
case involving Brandon Dozier. So that is for CC-2020-674.
Self-defense -- the self-defense instruction applies when you
are considering the case against Brandon Dozier. That is CC-
2020-674. On the verdict form I will make a notation -- I will
put the victim's name on it so that you will know when you
are deliberating, okay?"
(R. 639.)
After instructing the jury on the elements of intentional murder,
attempted murder, and first-degree assault, the court then gave several
of the parties' requested instructions relating to self-defense as follows:
"I charge you, ladies and gentlemen, there are times
when exceptional and unusual circumstances may justify the
use of a deadly weapon against an unarmed man, such as a
great disparity between the parties and the matter of physical
power or other peculiar conditions.
"….
"The burden shifts when I am -- in terms of self-defense.
The self-defense instruction. It states that the defendant does
not have the burden of proving that he acted in self-defense,
but to the contrary, once self-defense becomes an issue, the
State has the burden of proving beyond a reasonable doubt
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that the defendant did not act in self-defense. So this piece of
the law goes with that statement. This burden shift to the
State does not place the obligation on the State to present
additional evidence. The State is justified in relying on the
evidence previously presented to prove beyond a reasonable
doubt that the deadly force was not justified.
"In order to justify the use of deadly force in self-defense
the person must have an honest and reasonable belief that
they are in imminent danger of deadly force.
"An unreasonable belief, no matter how honest, cannot
justify the use of deadly force.
"A threat, in and of itself, is insufficient to justify self-
defense. This remains true even if the threat could possibly
be carried out.
"When a defendant claims self-defense, that claim is an
admission that the conduct is intentional.
"The accused's fear of an attack without an overt
demonstration of hostility on the part of the person does not
justify self-defense.
"The presence of a weapon does not justify self-defense
on its own. Danger of imminent physical or deadly harm must
be apparent and in the present.
"….
"An assault with the hand or fist does not, under normal,
ordinarily circumstances -- okay. Let me re-read that because
I missed some words there.
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"An assault with the hand or fist does not, under
ordinary circumstances, neither [sic] justify nor excuse the
use of a deadly weapon.[4]
"A defendant is not justified in using self-defense
against any assault. There must be a demonstration of
hostility that puts the defendant in honest and reasonable
fear of severe bodily harm or death.
"For self-defense to apply, the injured and/or deceased
party must have been the party against whom the defendant
was defending himself. If the injured and/or decedent parties
are not the intended targets or the aggressors, and you do not
find that their injuries or death was purely accidental, self-
defense does not apply."
(R. 645-48.) During deliberations, the jury requested written
instructions on intentional murder, attempted murder, and self-defense.
The trial court declined the request, but re-instructed the jury on
intentional murder, attempted murder, first-degree assault, and self-
defense. Those instructions were virtually identical to its original
instructions.
Section 13A-3-23, Ala. Code 1975, provides, in relevant part:
"(a) A person is justified in using physical force upon
another person in order to defend himself or herself or a third
person from what he or she reasonably 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
4The trial court read this instruction verbatim from the State's
written request.
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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 reasonable believes that another person is:
"(1) Using or about to use unlawful deadly
physical force."
(Emphasis added.) In Ex parte Teal, 336 So. 3d 165, 169 (Ala. 2021), the
Alabama Supreme Court explained that "[a]n individual may use deadly
physical force on 'another person' in self-defense, but, under § 13A-3-
23(a)(1), that other person must be one who the individual claiming to
act in self-defense 'reasonably believes' is using, or is 'about to use'
unlawful deadly physical force." (Emphasis added.) In other words, an
individual is justified under the self-defense statute in using deadly
physical force only against the person he reasonably believes is
aggressing against him, but he is not justified in using deadly physical
force against a person he does not reasonably believe is aggressing
against him, such as an innocent bystander. As the prosecutor aptly
noted during the charge conference: "Having a self-defense claim against
[one] person doesn't give you permission to shoot everyone in the room."
(R. 590.)
23
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Of course, that does not mean that an individual is criminally liable
when he or she justifiably uses force against an aggressor and
accidentally injures or kills an innocent bystander. It has been said:
"The decisions of our appellate courts are clear to the
position that if a person, without legal excuse or justification,
shoots at one individual and inadvertently kills another, he
would be guilty of the same degree of unlawful homicide as if
he had killed the object of his aim. It is also settled by the
authorities that if he was acting in self-defense and
accidentally killed another he would be guilty of no crime.
"Therefore, … if the jury was convinced from the
evidence beyond a reasonable doubt that the accused fired the
shot that caused the death of the deceased, guilt or innocence
would be determinable on the inquiry, whether or not the
defendant would have been justified and excusable in his act
had he shot and killed … the person for whom his fire was
intended."
Gettings v. State, 32 Ala. App. 644, 647, 29 So. 2d 677, 680 (1947)
(emphasis added). See also M athis v. State, 497 So. 2d 231, 232 (Ala.
Crim. App. 1986) (" '[T]he guilt of an accused who, intending to injure one
person, accidentally injures another, is to be determined as if the accused
had injured his intended victim. Gilbert v. State, 20 Ala. App. 28, 100
So. 566 [(1924)]; Lewis v. State, 22 Ala. App. 108, 113 So. 88 [(1927)].'
Bradberry v. State, 37 Ala. App. 327, [330,] 67 So. 2d 561, 564 (1953).
'Not only is intent transferred, but also the degree of the crime and any
24
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defenses that would be valid if the intended victim had been hit.' Prosser,
Transferred Intent, 45 Tex. L. Rev. 650 , 653 (1967).").
However, just as transferred intent is " 'only a fiction, or a legal
conclusion, to accomplish the desired result of liability,' " Carter v. State,
843 So. 2d 812, 816 (Ala. 2002) (quoting Commentary to § 13A-6-2, Ala.
Code 1975), transferred self-defense is a fictional construct designed to
limit liability for accidental harm to someone other than the person
against whom an individual justifiably uses force. It is because the harm
to the bystander was accidental, not because the individual was justified
in using force against the bystander, that the individual's liability is
limited. In other words, the transfer of self-defense is applicable only in
terms of liability, not in terms of the underlying justification for the use
of force. Because the defense of self-defense applies only to the person
the defendant " 'reasonably believes' is using, or is 'about to use' unlawful
deadly physical force," Ex parte Teal, 336 So. 3d at 169, and because the
guilt or innocence of a defendant for accidental harm to an unintended
victim is determined by whether the defendant was justified in using
force against the intended victim, see Gettings, supra, a defendant is not
entitled to a jury instruction on self-defense as to an unintended victim
25
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under a theory of transferred intent. That is not to say that a defendant
would not be entitled to a jury instruction in line with the holding in
Gettings, supra, i.e., that the defendant's guilt or innocence for accidental
harm to an unintended victim is to be determined by whether or not the
defendant was justified in using force against the intended victim, which
appears to have been the intent behind State's requested jury instruction
no. 14, however inartfully worded that instruction was.
We note that Peterson's reliance on Thornton v. State, [Ms. CR-19-
0506, July 8, 2022] ___ So. 3d ___ (Ala. Crim. App. 2022), in support of
his argument, is misplaced. Peterson quotes the following excerpt from
Thornton:
"[A]lthough a person who acts accidentally and accidentally
kills another person cannot claim that they acted in self-
defense, see § 13A-3-23(a), and Lovell [v. State], [521 So. 2d
1346 (Ala. Crim. App. 1987),] a person like Thornton who acts
intentionally, harbors a 'reasonable belief' that the act of self-
defense is necessary under the circumstances, and
accidentally causes the death of another person is entitled to
an instruction under Alabama's self-defense statute. To hold
that self-defense is available to only those people who intend
that a certain result occur would add a requirement to § 13A-
3-23(a) that simply is not there. This Court ' "is not at liberty
to rewrite statutes or to substitute its judgment for that of the
Legislature." ' Slagle v. Ross, 125 So. 3d 117, 126 (Ala. 2012)
(quoting Ex parte Carlton, 867 So. 2d 332, 338 (Ala. 2003))."
26
CR-2022-0642
___ So. 3d at ___ (footnote omitted). The above excerpt must be read in
context of the facts of that case. The defendant in Thornton claimed that
the victim threatened her with scissors, choked her, and raped her.
While he was raping her, the defendant said, she kicked the victim, and
he fell on the scissors. The defendant denied intentionally killing the
victim. The defendant in Thornton did not injure or kill an innocent
bystander; she killed the aggressor, the person who she claimed was
using deadly physical force against her. This Court, with two judges
concurring, two judges concurring in the result, and one judge dissenting,
held that the trial court had erred in not instructing the jury on self-
defense because, even though the defendant denied intending to kill the
victim, she admitted that her conduct in kicking the victim was
intentional, and self-defense requires only an intentional act, not an
intent to kill.5 The above excerpt, in light of the facts of Thornton, stands
only for the proposition that, on trial for killing an aggressor, a defendant
who claims he or she acted in self-defense but lacked the intent to kill the
5This Court ultimately concluded, however, that the error was
harmless.
27
CR-2022-0642
aggressor is entitled to a jury instruction on self-defense. Therefore,
Thornton is inapposite here.
Peterson would have been entitled to a jury instruction on self-
defense as to Shaneia and Stefon only if there was evidence indicating
that he reasonably believed Shaneia and Stefon were using or about to
use unlawful deadly physical force against him. Viewing the evidence in
the light most favorable to Peterson, as we must, see Ex parte McGriff,
908 So. 2d 1024, 1036 (Ala. 2004), we conclude that there was no evidence
presented at trial from which the jury could have concluded that Peterson
reasonably believed that Shaneia was using or about to use deadly
physical force against him. With respect to Stefon, there was some
evidence -- Stefon's alleged hostile actions towards Ca'Niyah and
Dre'Mayah, his location next to Brandon when Brandon hit Peterson,
Peterson's testimony that he thought "they fixing to try to kill me" (R.
563.)6 -- indicating that Peterson reasonably believed that Stefon, as well
6See Ex parte Teal, 336 So. 3d at 171 (holding that the defendant's
testimony, including that he was trying " 'to get them off of me' " when he
fired his gun in a "general upward direction," missing the man who was
holding him down and choking him but hitting the man's friend who was
standing nearby, indicated that the defendant reasonably believed that
the man's friend "was about to use, or to join [the man] in the use of,
unlawful deadly physical force").
28
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as Brandon, was about to use deadly physical force against him.
However, that does not end our analysis.
At trial, Peterson asserted that he had acted in self-defense when
he shot Brandon, but he steadfastly denied shooting either Stefon or
Shaneia. Peterson denied that he "hit" Stefon when he shot at Brandon
(R. 571.) and stated that he "didn't shoot Shaneia" (R. 578.); he denied
that he "accidentally shot" anyone when he was shooting at Brandon (R.
572, 577-78.) and testified that he was not the only person firing a gun
that night (R. 572.) and that he believed Clint shot Stefon. (R. 573-74.)
Although defense counsel attempted to broaden Peterson's testimony in
this regard by asking him "if someone else was shot or injured by your
action, then it was totally unintended" (R. 579.), to which Peterson
replied in the affirmative, that specific testimony, given the phrasing of
the question and Peterson's steadfast denials that he had not shot either
Stefon or Shaneia, indicates only that Peterson did not intend for Stefon
or Shaneia to be shot by someone as a result of his shooting Brandon.
Simply put, when his testimony is read as a whole, it is clear that
Peterson's defense at trial was that he shot Brandon in self-defense, that
he did not shoot either Stefon or Shaneia, and that if his action in
29
CR-2022-0642
shooting Brandon (and only Brandon) caused someone else to shoot
Stefon and Shaneia, it was unintended on his part. Therefore, even
though there was some evidence to support an instruction on self-defense
as to Stefon, such an instruction would have been inconsistent with
Peterson's defense that he did not shoot Stefon, but that Clint shot
Stefon. "A trial court does not err in refusing to give an instruction that
is inconsistent with the defense strategy." Harbin v. State, 14 So. 3d 898,
911 (Ala. Crim. App. 2008).
Finally, although State's requested jury instruction no. 14 was not
the epitome of clarity, based on Ex parte Teal and Gettings, supra, it was,
in fact, an accurate statement of the law.
For these reasons, Peterson is entitled to no relief on this claim.
B.
Peterson next contends that the trial court erred in refusing to
instruct the jury on reckless manslaughter and criminally negligent
homicide as lesser-included offenses of the murder charge. He argues
that the evidence presented a reasonable theory that his intentional
conduct in shooting Brandon in self-defense was simultaneously either
reckless or negligent as to Shaneia. According to Peterson, "a claim of
30
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self-defense against one individual ([Brandon]) does not foreclose the
argument that an accused acted recklessly [or negligently] with regard
to a different individual (Shaneia)." (Peterson's brief, p. 40.)
As noted previously, Peterson steadfastly denied shooting Shaneia,
and "[a] trial court does not err in refusing to give an instruction that is
inconsistent with the defense strategy." H arbin v. State, 14 So. 3d 898,
911 (Ala. Crim. App. 2008). " 'Where the instructions would have
conflicted with defense strategy, there is no error in the trial court's
failure to give the instructions.' " McWhorter v. State, 781 So. 2d 257,
269 (Ala. Crim. App. 1999), aff'd, 781 So. 2d 330 (Ala. 2000) (quoting Bush
v. State, 695 So. 2d 70, 113 (Ala. Crim. App. 1995)). Moreover, even if
Peterson's defense had been that he shot Shaneia while defending
himself against Brandon, there was no reasonable theory of the evidence
that would have supported instructions on either reckless manslaughter
or criminally negligent homicide. Peterson asserted that he acted in self-
defense when he shot Brandon and, under the evidence presented at trial,
Peterson either justifiably defended himself against Brandon and, in the
process of doing so, accidentally killed Shaneia, or he specifically targeted
Shaneia, as Yvonne and Robert testified. There was no evidence
31
CR-2022-0642
presented, by either the State or the defense, indicating that Peterson
intentionally shot Brandon in self-defense but then recklessly or
negligently shot Shaneia. The shootings of all three victims were part of
the same conduct -- Peterson firing his gun -- and the same conduct
cannot be both intentional and reckless or negligent.
Therefore, Peterson is entitled to no relief on this claim.
C.
Peterson next contends that the trial court erred in giving State's
requested jury instructions no. 7 and 13 because, he says, they
inaccurately stated the law by adding requirements to the defense of self-
defense that are not in the self-defense statute. Requested jury
instruction no. 7, reads:
"The accused's fear of attack, without an overt demonstration
of hostility on the part of the deceased person, does not justify
self-defense."
(C. 685.) Peterson argues that this instruction added "unnecessary and
confusing language about overt hostile action" that "suggests that
something more than a reasonable belief of imminent harm is required
for self-defense to apply" and that it did not include a definition of "overt
32
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demonstration of hostility." (Peterson's brief, pp. 48-49.) Requested jury
instruction no. 13 reads:
"A defendant is not justified in using self-defense against any
assault. There must be a demonstration of hostility that puts
the defendant in honest and reasonable fear of severe bodily
harm or death."
(C. 34.) Peterson argues that this instruction "unnecessarily confused
the law" by leading jurors to believe that they could not "consider self-
defense against a fear of an assault." (Peterson's brief, pp. 51-52.) The
State argues that Peterson failed to preserve these issues for appellate
review. We agree with the State.
During the charge conference, the trial court and the parties
discussed each of the State's written requested instructions. With
respect to instruction no. 7, the following occurred:
"THE COURT: … Number 7, the accused's fear of an
attack, without an overt demonstration of hostility on the part
of the deceased person, does not justify self-defense.
"The accused's fear of an attack without an overt
demonstration of hostility on the part of the deceased person
--
"[Prosecutor]: We can take out 'deceased' and put
Brandon Dozier.
"[Defense counsel]: That's number 6?
33
CR-2022-0642
"THE COURT: Number 7.
"[Defense counsel]: Number 7? Okay.
"THE COURT: Let me come back to number 7.
"[Defense counsel]: I object to that one.
"THE COURT: You object to number 7?
"[Defense counsel]: Yes.
"THE COURT: Okay. I'll come back to 7.
"….
"THE COURT: … I'm going back to number 7 --
"[Prosecutor]: Your Honor, I've had this for several
years now. If you take out deceased or the act and replace it
with acting person, but just fear of an attack does not --
"THE COURT: I will give number 7 over the defendant's
objection, but your objection is noted for the record."
(R. 595-98.) The Court addressed instruction no. 13 simultaneously with
instruction no. 14 as follows:
"THE COURT: Okay. State's requested jury charge
number 13 states: 'a defendant is not justified in using self-
defense against any assault. There must be a demonstration
of hostility that puts the defendant in honest and reasonable
fear of severe bodily harm or death,' Lemley v. State[, 599 So.
2d 64 (Ala. Crim. App. 1992)]. I will give that one. That is a
correct statement of the law.
34
CR-2022-0642
"And State's requested charge number 14 … I will give
number 14. Number 13 and 14.
"[Defense counsel]: We object to both of them being
given.
"THE COURT: All right. Your objection is noted for the
record."
(R. 615-16.) At the conclusion of the court's oral charge, when asked if
there were any exceptions, Peterson's counsel stated: "Other than the
ones I made initially, no, Your Honor." (R. 650.).
"No party may assign as error the court's giving or failing to give a
written instruction, or the giving of an erroneous, misleading,
incomplete, or otherwise improper oral charge, unless the party objects
thereto before the jury retires to consider its verdict, stating the matter
to which he or she objects and the grounds of the objection." Rule 21.3,
Ala. R. Crim. P. (Emphasis added.) Peterson stated no grounds for his
objections to State's requested jury instructions no. 7 and no. 13. And
unlike State's requested instruction no. 14, where a discussion was had
regarding the applicability of self-defense to the three victims and
Peterson made his position on the issue clear, there was no discussion
regarding the specific elements of self-defense or the level of hostility
required for self-defense so as to put the trial court on notice of any
35
CR-2022-0642
alleged defect in the requested instructions. Because Peterson failed to
state grounds in support of his objections to State's requested jury
instructions no. 7 and no. 13, this issue was not properly preserved for
review.
D.
Finally, Peterson contends that the trial court erred in giving the
State's requested jury instruction on flight, requested instruction no. 9,
which reads:
"In this case, you heard evidence of the defendant's flight from
the alleged scene. You can use this evidence to infer the
defendant's consciousness of guilt. However, you are not
required to do so."
(C. 686.) Peterson argues that this instruction was misleading and an
incomplete statement of the law because, he says, it did not "advise the
jury that there may be other reasons to consider for the flight" and it
failed to follow the pattern instruction on flight. (Peterson's brief, p. 56.)
During the charge conference, the following occurred:
"THE COURT: … Number 9, in this case, you have
heard of evidence of the defendant's flight from the alleged
scene. You can use this evidence to infer the defendant's
consciousness of guilt. However, you are not required to do
so.
"What's your position on number 9, [Defense counsel]?
36
CR-2022-0642
"[Defense counsel]: Well, by that statement that,
however, you're not required to do so.
"THE COURT: Okay. I'm going to give requested
charge number 9."
(R. 596.) Although Peterson asserts in his brief to this Court that he
objected to the instruction on p. 596 of the transcript, as the above-quoted
portion of the transcript reveals, he lodged no objection but appeared to
simply reiterate a portion of the charge, i.e., "however, you're not
required to do so." And he certainly did not present to the trial court the
argument he now makes on appeal. See Rule 21.3, Ala. R. Crim. P.
Therefore, this issue was not properly preserved for review.
III.
Based on the foregoing, the judgment of the trial court is affirmed.
AFFIRMED.
Windom, P.J., and McCool, Cole, and Minor, JJ., concur.
37