E-Filed

08/22/2018 04:22:25 PM
Honorable Julia Jordan Weller
Clerk of the Court

No. 1171025
════════════════════════════════════════════════
In the SUPREME COURT of ALABAMA
──────────────────────────────────
Ex parte Aaron Cody Smith, Petitioner.
──────────────────────────────────
In re:
STATE OF ALABAMA,
Plaintiff,
v.
AARON CODY SMITH,
Defendant.
──────────────────────────────────
On Petition for A Writ of Mandamus to The
Montgomery County Circuit Court
(Montgomery CC-16-1397)
(Ala. Crim. App. CR-17-1042)
════════════════════════════════════════════════
THE STATE OF ALABAMA’S ANSWER TO SECOND
PETITION FOR A WRIT OF MANDAMUS
════════════════════════════════════════════════
Steve Marshall
Attorney General

Andrew L. Brasher
Solicitor General

Marc A. Starrett
Assistant Attorney General
Counsel of Record*
State of Alabama
Office of the Attorney General
501 Washington Avenue
Post Office Box 300152
Montgomery, AL 36130-0152
docketroom@ago.state.al.us
(334) 242-7300*
 TABLE OF AUTHORITIES

Cases

Bunn v. State, 667 S.E.2d 605 (Ga. 2008) ................. 13

Dunlop Tire Corp. v. Allen, 725 So. 2d 960

(Ala. 1998) ............................................. 14

Ex parte Aaron Cody Smith (v. State), CR-17-1042

(Ala. Crim. App. Aug. 3, 2018) ........................ 3, 5

Ex parte Atchley, 936 So. 2d 513 (Ala. 2006) ............. 16

Ex parte Balogun, 516 So. 2d 606 (Ala. 1987) ............. 15

Ex parte Bloodsaw, 648 So. 2d 553 (Ala. 1994) ........ passim

Ex parte City of Dothan Personnel Board, 831

So. 2d 1 (2002) ......................................... 16

Ex parte Fowler, 574 So. 2d 745 (Ala. 1990) .............. 18

Ex parte Head, 958 So. 2d 860 (Ala. 2006) .......... 4, 8, 18

Ex parte Jackson, 836 So. 2d 979 (Ala. 2002) ............. 10

Ex parte Jones, 86 So. 3d 350 (Ala. 2011) ................ 15

Ex parte Monsanto Co., 862 So. 2d 595 (Ala.

2003), as modified on denial of reh’g (Ala.
May 9, 2003) ............................................ 17

Ex parte Price, 715 So. 2d 856 (Ala. Crim.

App. 1997) .............................................. 18

Ex parte Safeway Ins. Co. of Alabama, Inc.,

990 So. 2d 344 (Ala. 2008) ............................. 8-9

Ex parte Smith, No. 1161024 (Ala. Feb. 23,

2018 ................................................. 3, 17

Ex parte Taylor, 720 So. 2d 1054 (Ala. Crim.

App. 1998) ............................................... 8

i
Fulton v. Longshore, 156 Ala. 611, 46 So.
989 (1908) .............................................. 15

Gary v. Crouch, 867 So. 2d 310 (Ala. 2003) ............... 15

George v. State, 159 So. 3d 90 (Ala. Crim.

App. 2014) .............................................. 11

Hall v. Mazzone, 486 So.2d 408 (Ala. 1986) ............ 9, 13

Harrison v. State, 203 So. 3d 126 (Ala. Crim.

App. 2015) .............................................. 13

Hartman v. Board of Trs. of the Univ. of Alabama,

436 So. 2d 837 (Ala. 1983) .............................. 17

Henderson v. G & G Corp., 582 So. 2d 529 (Ala.

1991) ................................................... 15

In re Sheffield, 465 So. 2d 350 (Ala. 1984) .............. 17

Lilly v. Larkin, 66 Ala. 110 (1880) ...................... 10

Marshall v. Jerrico, Inc., 446 U.S. 238 (1980) ........... 14

McCormack v. AmSouth Bank, N.A., 759 So. 2d

538 (Ala. 1999) ......................................... 15

Owen v. Rutledge, 475 So. 2d 826 (Ala. 1985) .............. 9

Spencer v. Spencer, No. 1161095, 2018 WL

915097, at *1 (Ala. Feb. 16, 2018) ....................... 9

State v. Watson, 221 So. 3d 497 (Ala. Crim.

App. 2016) .......................................... 10, 14

Thomas v. State, 224 So. 3d 688 (Ala. Crim.

App. 2016) .............................................. 11

Wehle v. Bradley, No. 1160214, 2017 WL 6546189,

at *4 (Ala. Dec. 22, 2017) .......................... 10, 13

ii
Statutes

Ala. Code (1975),

§ 13A-3-23 .............................................. 11

§ 13A-3-23(d) ....................................... passim

§ 13A-3-23(d)(1) ........................................ 11

§ 13A-3-27(b)(2) ..................................... 6, 11

§ 13A-6-2 ................................................ 2

§ 15–2–20 ............................................... 18

Other Authorities

Alabama Canons of Judicial Ethics,

Canon 3.C ....................................... 15, 16, 17

Canon 3.C(1)(a) ......................................... 16

Alabama Constitution (1901),

Article I, Section 6 .................................... 14

iii
 THE STATE OF ALABAMA’S ANSWER TO SECOND
PETITION FOR WRIT OF MANDAMUS

The Court should deny Aaron Cody Smith’s second petition

for a writ of mandamus seeking this Court to grant him

immunity from prosecution, to order Montgomery Circuit Judge

Gregg Griffin’s recusal from his case, or to change the venue

of his trial. Smith, charged with murder arising from his

fatal shooting of Gregory Zdanis Dunn on February 25, 2016,

has previously asked this Court to require Judge Griffin to

recuse himself from this case, and this Court rejected that

request. He now returns to ask the Court to overturn the

denial of his motion for “Stand Your Ground” immunity under

Ala. Code § 13A-3-23(d) (1975), or, in the alternative, to

order Judge Griffin’s recusal -- this time based upon Judge

Griffin’s finding, made in open court following the immunity

hearing, that his testimony was not credible -- or to change

the venue for his trial.1

The resolution of Smith’s mandamus petition is simple.

To grant the petition would require this Court to serve as

the final determiner of Smith’s credibility regarding the

1 Smith also asks the Court to stay his trial pending

disposition of his petition, and the Court granted that
request in its August 8, 2018 order.
events that led to Gunn’s death -- thereby abandoning its

historic deference to the trial court’s findings based on ore

tenus evidence -- or to hold that the trial court’s rejection

of the credibility of a defendant’s testimony during a

pretrial hearing renders it unfit to preside over the

defendant’s subsequent trial. Either holding would be

untenable under Alabama law. Smith has made no showing that

he holds a clear legal right to relief from the trial court’s

denial of “Stand Your Ground” immunity or his motion to recuse

or change venue, and his petition is due to be denied for

that reason.

FACTS PERTINENT TO ANSWER2

A. Indictment; prior mandamus proceedings

Smith, a City of Montgomery Police Department police

officer, was indicted by the November 2016 session of the

Montgomery County Grand Jury on the charge of intentional

murder, a violation of Ala. Code § 13A-6-2 (1975), arising

from the February 25, 2016 shooting death of Gregory Zdanis

Gunn following their altercation in a Montgomery

2 References to exhibits in this Answer shall be made to

those attached to the instant mandamus petition by either the
exhibit letter (“(Pet. Ex. __)”) or exhibit letter and
reporter’s transcript page number (“(Pet. Ex. __ R. __)”).

2
neighborhood. (Pet. Exs. A, B, C.) He has previously

petitioned for a writ of mandamus from this Court directing

Judge Griffin to recuse himself from these proceedings based

upon comments made in social media, and this Court denied his

motion in Ex parte Smith, No. 1161024 (Ala. Feb. 23, 2018

(order). As discussed further below, Smith’s current request

for mandamus relief from this Court has already been rejected

by the Alabama Court of Criminal Appeals in Ex parte Aaron

Cody Smith (v. State), CR-17-1042 (Ala. Crim. App. Aug. 3,

2018). (Pet. Ex. YY.)

B. The “Motion For Immunity From Prosecution”; the

hearing on the motion; the trial court’s decision; the
motion to recuse or change venue

Smith moved for immunity from prosecution on the basis

of § 13A-3-23 (d), arguing that he was acting in his official

capacity as a law enforcement officer and in self-defense

and/or in reasonable defense of others at the time of Gunn’s

death. (Pet. Ex. W.) The trial court conducted an ore tenus

hearing on the motion on July 26, 2018. (Pet. Ex. RR R. 1-

257.) Smith presented the testimony of Alabama Bureau of

Investigation Investigator Jason DiNunzio, Montgomery

Municipal Court Administrator Kenneth Hixon, Jr., City of

Montgomery Police Department Sergeant Donna Dunn, and Alabama

3
Department of Forensic Sciences examiner Dr. Stephen

Boudreau, as well as his own testimony. E.g., (Pet. Ex. RR R.

6, 48, 58, 75, 98). Smith, who was on patrol alone at the

time he shot Gunn, gave his account of the incident. (Pet.

Ex. RR R. 102, 98-246.)

Smith does not dispute the Court of Criminal Appeals’

recitation of the evidence presented at the immunity hearing

as set forth in its August 3, 2008 order denying his mandamus

petition. Pet. 1-27; (Pet. Ex. YY). The Court of Criminal

Appeals, reviewing the evidence along with Smith’s

contentions, stated:

Smith contends that in the early morning hours of

February 25, 2016, he executed a Terry [v. Ohio,
392 U.S. 1 (1968)] stop on Gunn and that while
patting down Gunn, Gunn became agitated and
slapped Smith’s hand away from his waistband.
Smith unholstered his taser gun and threatened to
use it on Gunn. Gunn ran away when he heard Smith
call for backup, and Smith states that Gunn put
his hand in his hoodie near his waistband. Smith
said because of this action he feared that Gunn
was armed. Smith used or attempted to use the taser
gun on Gunn several times during the chase with
little or no effect. Smith then resorted to using
his ASP baton -- a telescoping metallic baton --
striking Gunn on his arms and legs; this too was
ineffective in subduing Gunn. Gunn then ran to his
neighbor’s porch, retreated to a dark area of the
porch, and armed himself with a painting pole that
was reinforced with steel. Smith, alleging that he
feared for his life, unholstered his service
weapon and fired in the direction of Gunn. Gunn
was struck multiple times and subsequently died.

4
Smith, CR-17-1042, order at 1-2 (footnote omitted) (Pet.

Ex. YY). It then set forth the trial court’s decision,

pronounced to the parties in open court at the close of

testimony at the hearing, denying Smith’s motion:

At the conclusion of the July 26, 2018, hearing,

Judge Griffin stated:

“All right. 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 13th.”

Smith, CR-17-1042, order at 2 (Pet. Ex. YY); see also (Pet.

Ex. RR R. 255).

On the same date the trial court entered its written

order denying the motion:

This Court, after hearing testimony and considering

the evidence as to Defendant’s Motion for Immunity
From Prosecution, and the Court having considered
same, it is hereby ORDERED that said Motion is
hereby due to be DENIED.

(Pet. Ex. SS.)

Smith then moved for the trial court’s recusal due to

its statement to the parties regarding his credibility,

5
claiming that it had been “well aware of its task as to the

Immunity Hearing” but “chose to take this time to showcase

and give an inappropriate and erroneous opinion of [him] which

certainly implied guilt where [he] is presumed innocent.”

(Pet. Ex. TT.) He also moved to transfer venue of his case in

order to obtain a “fair and impartial jury of his peers.”3

Id. The trial court denied the motion. (Pet. Exs. VV, WW,

XX.)

C. The instant petition for a writ of mandamus

In the petition now before this Court, Smith maintains

that he has a clear legal right to immunity from prosecution

based on § 13A-3-23(d) and “justifiable force” provisions of

Ala. Code § 13A-3-27(b)(2) (1975), arguing that he proved

beyond a preponderance of evidence at the hearing that he was

justified in using deadly force in shooting Gunn. Pet. 13-

21. He further contends that the trial court’s statement

rejecting the credibility of his testimony was made in the

presence of media to “showcase and give an inappropriate and

erroneous opinion” of his guilt, “with no regard for [his]

3 Smith also moved to disqualify the Montgomery County

District Attorney’s Office due to an alleged conflict, see
(Pet. Ex. TT), but did not reassert that issue in the mandamus
proceedings before the Court of Criminal Appeals and does not
do so here. See (Pet. 24-26).

6
presumption of innocence[,]” thereby tainting the jury pool

and requiring his recusal from the case or a change of venue.

Pet. 13, 24-26.

ARGUMENT

Smith Has Shown Nothing To Overturn The Trial Court’s

Determination Of His Credibility In Denying Him
Immunity From Prosecution, Nor To Require Its Recusal
Or A Change Of Venue.

Smith has failed to demonstrate any error whatsoever in

the trial court’s denial of his motion for immunity, for its

determination of the credibility of the ore tenus evidence

presented in the immunity hearing was a question to be

resolved by the trial court. Absent a showing that the trial

court’s decision was plainly or palpably wrong -- and there

has been no such showing here -- Smith cannot successfully

ask this Court to take the place of the factfinder, reweigh

the evidence in his favor, and thereby grant him immunity

from prosecution. Further, his attempt to show that the trial

court possesses an actual bias against him and is thus

required to recuse itself from his case is based on nothing

more than its explanation of its reason for denying the motion

for immunity, and cannot serve as a ground to require recusal.

Finally, while Smith alternatively seeks a new venue for his

trial due to alleged publicity stemming from the trial court’s

7
statement, this is an issue subject to appellate review,

rather than review by extraordinary writ, thus barring him

from mandamus relief on that ground as well.

A. Smith has no clear legal right to immunity from

prosecution, because he has not shown that the trial
court’s determination of the credibility of the ore
tenus evidence presented to it is plainly or palpably
wrong.

To successfully obtain the issuance of a writ of

mandamus, Smith is required to demonstrate that there is “(1)

a clear legal right in the petitioner to the order sought;

(2) an imperative duty upon the respondent to perform,

accompanied by a refusal to do so; (3) the lack of another

adequate remedy; and (4) properly invoked jurisdiction of the

court.” Ex parte Bloodsaw, 648 So. 2d 553, 554 (Ala. 1994).

The writ of mandamus “is a drastic and extraordinary

remedy[,]” Ex parte Head, 958 So. 2d 860, 865 (Ala. 2006),

and the burden of showing entitlement to the writ lies solely

with the petitioner. Ex parte Taylor, 720 So. 2d 1054, 1058

(Ala. Crim. App. 1998). This Court has observed: “for the

writ of mandamus to issue ‘[t]he right sought to be enforced

by mandamus must be clear and certain [,] with no reasonable

basis for controversy about the right to relief.’” Ex parte

8
Safeway Ins. Co. of Alabama, Inc., 990 So. 2d 344, 348 (Ala.

2008) (citation omitted) (emphasis added).

The ore tenus rule applies in mandamus proceedings.

E.g., Owen v. Rutledge, 475 So. 2d 826 (Ala. 1985). Under

that rule, “‘where the evidence has been [presented] ore

tenus, a presumption of correctness attends the trial court’s

conclusion on issues of fact, and this Court will not disturb

the trial court’s conclusion unless it is clearly erroneous

and against the great weight of the evidence, but will affirm

the judgment if, under any reasonable aspect, it is supported

by credible evidence.’” Spencer v. Spencer, No. 1161095, 2018

WL 915097, at *1 (Ala. Feb. 16, 2018) (citation omitted).

The reason for the great deference given to a trial

court’s findings on evidence presented to it without a jury

is that it, alone, is in the best position to determine the

trustworthiness of testimony presented to it. “The ore tenus

rule is grounded upon the principle that when the trial court

hears oral testimony it has an opportunity to evaluate the

demeanor and credibility of witnesses.” Hall v. Mazzone, 486

So.2d 408, 410 (Ala. 1986). “This standard is based on a

recognition of the trial court’s unique position of being

able to evaluate the credibility of witnesses and to assign

9
weight to their testimony. Wehle v. Bradley, No. 1160214,

2017 WL 6546189, at *4 (Ala. Dec. 22, 2017). This Court has

long applied the ore tenus rule. E.g., Lilly v. Larkin, 66

Ala. 110, 114 (1880) (“The court below, having examined the

witnesses ore tenus, had peculiar opportunities for judging

of the credibility and weight of the evidence; and we are not

inclined to reverse the finding of a primary court on the

facts in such cases, unless clearly convinced that it was

erroneous.”) Further, it is settled that the presumption of

correctness in favor of the trial court’s credibility choices

or inferences from the evidence applies to ore tenus evidence

at criminal pretrial proceedings. E.g., Ex parte Jackson, 836

So. 2d 979, 982 (Ala. 2002) (regarding testimony given during

suppression hearing, “‘this Court makes all the reasonable

inferences and credibility choices supportive of the decision

of the trial court.’”) (citation omitted).

This standard therefore applies to the trial court’s

decision to deny Smith’s motion for immunity, including its

rejection of his testimony as not credible. State v. Watson,

221 So. 3d 497, 504 (Ala. Crim. App. 2016) (applying ore tenus

rule to trial court’s order granting immunity from

prosecution under § 13A-3-23 (d): “Absent a gross abuse of

10
discretion, a trial court’s resolution of [conflicts in the

testimony or credibility of witnesses] should not be reversed

on appeal.”) (citation omitted) (brackets in

original). “Under the ore tenus rule, the trial court’s

findings of fact are presumed correct and will not be

disturbed on appeal unless these findings are ‘plainly or

palpably wrong or against the preponderance of the

evidence.’” Id.

Under the “Stand Your Ground” provisions of § 13A-3-23,

a person has no duty to retreat from attack when he or she is

“not engaged in an unlawful activity and is in any place where

he or she has a right to be.” George v. State, 159 So. 3d 90,

95 (Ala. Crim. App. 2014); Thomas v. State, 224 So. 3d 688,

693 (Ala. Crim. App. 2016). Further, § 13A-3-23 (d)(1)

provides that the person who uses force, including deadly

force, as permitted under the statute “is immune from criminal

prosecution and civil action for the use of such force, unless

the force was determined to be unlawful.” Section 13A-3-27

(b)(2), a civil immunity provision specifically applicable to

law enforcement officers, provides that the officer “is

justified in using deadly physical force upon another person

when and to the extent that he reasonably believes it

11
necessary in order...[t]o defend himself or a third person

from what he reasonably believes to be the use or imminent

use of deadly physical force.”

In seeking mandamus relief from this Court, Smith cites

his own testimony at great length regarding the circumstances

of his interaction with Gunn that led to his firing of his

weapon at him, while also pointing to testimony regarding

Gunn’s criminal background, to argue that he “was faced with

a life threatening situation in which he had the absolute

right to use deadly force.” Pet. at 16-21. Smith describes

how he attempted to use a Taser and a baton to subdue Gunn

before Gunn armed himself with a pole, leading him to fire

his weapon while in fear for his life. Id. He compares his

account of the altercation to the Court of Criminal Appeals’

holding in Watson, in which the Court of Criminal Appeals

affirmed the trial court’s granting of “stand your ground”

immunity where the defendant shot a person who charged toward

him and threatened to kill him. Pet. at 16, 20.

While pointing the Court towards his own testimony,

however, Smith disregards the fact that the trial court -- in

the superior position of being able to review the demeanor of

all of the witnesses testifying before it, including Smith,

12
in determining the weight and credibility of their testimony

-- “did not find the officer’s testimony...to be credible[.]”

(Pet. Ex. RR R. 255.) This credibility choice was one for the

trial court to make, having had the opportunity review Smith’s

testimony firsthand. See, e.g., Hall, 486 So. 2d at 410;

Wehle, No. 1160214, 2017 WL 6546189, at *4. To hold otherwise

here would undoubtedly turn the established ore tenus rule on

its head. Of course, the trial court’s denial of immunity

before trial would not prohibit Smith from pursuing his claim

of self-defense before a jury at trial. “‘If a defendant

cannot meet his burden of proving immunity prior to trial, he

may nonetheless pursue an affirmative defense at trial, even

though these affirmative defenses may be based on the same

statutory provisions underlying a prior immunity motion.’”

Harrison v. State, 203 So. 3d 126, 131 (Ala. Crim. App. 2015),

citing Bunn v. State, 667 S.E.2d 605, 608 (Ga. 2008).

Smith has therefore failed to demonstrate that the trial

court’s findings regarding his testimony are plainly or

palpably wrong, and therefore has no clear legal right to the

“drastic and extraordinary remedy” of an order from this Court

granting him immunity from prosecution. See Bloodsaw, 648 So.

13
2d at 554; Head, 958 So. 2d at 865 (Ala. 2006); Watson, 221

So. 3d at 504.

B. Smith has no clear legal right to the trial court’s

recusal or a change of venue.

As with his challenge to the denial of immunity, Smith

is not entitled to a writ of mandamus directing Judge Griffin

to recuse himself from his case due to an apparent personal

bias.4

As guaranteed by the Fourteenth Amendment to the United

States Constitution and Article I, Section 6 of the Alabama

Constitution (1901), it is Smith’s right to have his case

decided by a neutral, impartial judge, one who will exercise

his judicial power in a manner consistent with the

constitutions and laws of the United States and the State of

Alabama. See, e.g., Dunlop Tire Corp. v. Allen, 725 So. 2d

960, 976 (Ala. 1998) (See, J., statement of nonrecusal). “Due

process...entitles a person to an impartial and disinterested

tribunal in both civil and criminal cases.” Marshall v.

Jerrico, Inc., 446 U.S. 238, 242 (1980).

4 Though Smith notes that the proof of actual bias is “not

necessary[,]” Pet. at 24, Smith’s allegations of Judge
Griffin’s purported misconduct in announcing his reason for
denying immunity appear to seek recusal due to a personal
bias on the judge’s part, rather an appearance of bias. Pet.
24-26.

14
 While the issue of recusal may properly be raised in a

petition for a writ of mandamus, the burden lies solely on

the petitioner to establish grounds for recusal and to

overcome the presumption that the judge is impartial. E.g.,

Ex parte Jones, 86 So. 3d 350, 352 (Ala. 2011). This Court

“presume[s] that a judge is qualified and unbiased; one who

alleges otherwise and seeks a judge’s recusal has the burden

of proving the grounds for the recusal.” Gary v. Crouch, 867

So. 2d 310, 320 (Ala. 2003). Therefore, “one alleging to the

contrary has a substantial burden of proof.” McCormack v.

AmSouth Bank, N.A., 759 So. 2d 538, 545 (Ala. 1999), citing

Henderson v. G & G Corp., 582 So. 2d 529, 530 (Ala. 1991).

Our judicial system is premised upon decisions rendered by

impartial judges; accordingly, “‘the law will not suppose a

possibility of bias or favor in a judge who is already sworn

to administer impartial justice and whose authority greatly

depends upon that presumption and idea.’” Ex parte Balogun,

516 So. 2d 606, 609 (Ala. 1987), citing Fulton v. Longshore,

156 Ala. 611, 46 So. 989 (1908).

Canon 3.C of the Alabama Canons of Judicial Ethics

prohibits a judge from presiding over a case where his or her

15
impartiality could reasonably be questioned. Canon 3.C.(1)(a)

provides:

C. Disqualification.

(1) A judge should disqualify himself in a

proceeding in which his disqualification is
required by law or his impartiality might
reasonably be questioned, including but not
limited to instances where:

(a) He has a personal bias or prejudice

concerning a party, or personal knowledge of
disputed evidentiary facts concerning the
proceeding...[.]

“Specifically, the Canon 3(C) test is: ‘Would a person

of ordinary prudence in the judge’s position knowing all the

facts known to the judge find that there is a reasonable basis

for questioning the judge’s impartiality?’” Ex parte Atchley,

936 So. 2d 513, 517 (Ala. 2006), citing Ex parte City of

Dothan Personnel Board, 831 So. 2d 1 (2002).

Smith appears to assert that Judge Griffin’s personal

bias was demonstrated by permitting the media to observe the

proceedings of his courtroom during the immunity hearing and

then informing the parties that he doubted Smith’s

credibility, deeming his explanation for his decision to deny

immunity “poisonous remarks.”5 Pet. 24-26. However, he is not

5 Smith’s latest demand for recusal is based on an allegation

of personal bias demonstrated by Judge Griffin’s statement in

16
entitled to recusal on this ground, because statements of

this nature made during legal proceedings do not constitute

expressions of personal bias for purposes of recusal under

Canon 3.C, nor would they serve as a reasonable basis to

question the judge’s impartiality. “Adverse rulings during

the course of the proceedings are not by themselves sufficient

to establish bias and prejudice.” Hartman v. Board of Trs. of

the Univ. of Alabama, 436 So. 2d 837, 841 (Ala. 1983).

“‘[R]ulings on issues of law or attitudes concerning legal

issues’ do not establish bias or prejudice requiring recusal

unless those rulings or attitudes are the product of bias and

prejudice of an extra-judicial source.” In re Sheffield, 465

So. 2d 350, 357 (Ala. 1984). “[R]emarks reflecting even strong

views about a defendant will not call for a judge’s recusal

so long as those views are based on his own observations

during the performance of his judicial duties.” Ex parte

Monsanto Co., 862 So. 2d 595, 631–32 (Ala. 2003), as modified

on denial of reh’g (Ala. May 9, 2003) (citation omitted). As

with his claim for immunity, Smith has not shown that he has

court, rather than due to an alleged appearance of impropriety

as had been alleged in his previous mandamus petition denied
by the Court in Ex parte Smith, No. 1161024 (Ala. Feb. 23,
2018 (order).

17
a clear legal right to Judge Griffin’s recusal in this case.

See Bloodsaw, 648 So. 2d at 554; Head, 958 So. 2d at 865 (Ala.

2006).

As for Smith’s claim that this Court should order his

case moved to another venue with a jury “free from the

poisonous remarks of the trial judge[,]” Pet. at 26, he also

cannot obtain mandamus relief on this ground. Pursuant to

Ala. Code § 15–2–20 (1975), a defendant is entitled to a

change of venue if he can demonstrate that he cannot receive

a fair trial in the county where he is to be tried. However,

the writ of mandamus will not lie for review of the trial

court’s denial of a change of venue on this ground. “Although

mandamus is the appropriate method to challenge a pre-trial

ruling on a motion to recuse...it is not available to review

a ruling on a motion for a change of venue based on pretrial

publicity[.]” Ex parte Price, 715 So. 2d 856, 857 (Ala. Crim.

App. 1997). “It is well established in Alabama that a writ of

mandamus, which is a drastic and extraordinary remedy, will

not issue when there is an adequate remedy by appeal, and

that the writ cannot be used as a substitute for appellate

review.” Ex parte Fowler, 574 So. 2d 745, 747 (Ala. 1990)

(denying mandamus relief for change of venue due to pretrial

18
publicity). The Court should therefore deny mandamus relief

on this claim as well.

CONCLUSION

For the foregoing reasons, this Court should deny Smith’s

second petition for a writ of mandamus.

Respectfully submitted,

Steve Marshall
Attorney General

Andrew L. Brasher
Solicitor General

/s/Marc A. Starrett
Marc A. Starrett
Assistant Attorney General

19
 CERTIFICATE OF SERVICE

I hereby certify that on this the 22nd day of August

2018, I electronically filed the foregoing and served a copy

on the Respondent by United States mail, first-class postage

prepaid, and addressed as follows:

Honorable Greg Griffin, Circuit Judge

Fifteenth Judicial Circuit
P.O. Box 1667
Montgomery, AL 36102

and via electronic mail upon the counsel for the petitioner,

addressed as follows:

Roianne Conner, Esq.

roianne@rhconnerlaw.com

Mickey McDermott, Esq.

mcdermottattorneys@gmail.com

Preston L. Presley, Esq.

preston@rhconnerlaw.com

/s/Marc A. Starrett
Marc A. Starrett
Assistant Attorney General
Counsel of Record *

ADDRESS OF COUNSEL:

State of Alabama
Office of the Attorney General
501 Washington Avenue
Post Office Box 300152
Montgomery, AL 36130-0152
docketroom@ago.state.al.us
(334) 242-7300*
2520883/203740-001

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