BIRMINGHAM, Ala. (AP) — An Alabama judge has dismissed a capital murder charge, ruling that a man acted under the state’s Stand Your Ground law, which allows people to use deadly force in self-defense.
Jefferson County Circuit Judge Alaric May issued an order Saturday tossing the charge against Samuel Bernard Smith, 23, of Birmingham, AL.com reported Monday.
Kirby Kermit Davis, 32, was shot to death Dec. 20, 2018, at a Birmingham apartment complex where Smith was living. Smith was arrested in early 2019 and has been out of jail since last year.
May ruled that Smith had the right to defend himself because he was robbed and kidnapped by four men, including the one he killed.
“Under Alabama law, a person who is not engaged in an unlawful activity and is in any place where he or she has the right to be, has no duty to retreat and has the right to stand his or her ground,’’ the judge wrote.
Prosecutors argued Smith was not eligible for a Stand Your Ground defense because he was engaged in an unlawful activity by selling marijuana at the time of the shooting. They said he did not have the legal right to “secure the premises” with a loaded gun. The law specifies a person may not use deadly force while engaged in criminal activity.
During a Stand Your Ground hearing, Smith testified that he was home when he received a random call from a childhood friend about buying marijuana. He said he told the friend he did not have marijuana to sell. He testified that he hesitantly agreed to sell some marijuana after the friend and other people showed up at his apartment later.
The judge wrote that according to testimony, Smith took a pistol and a sample of marijuana to see a person he was told was waiting with money in the parking lot. Smith testified that all four men brandished weapons and the driver said Smith was being robbed.
Smith testified that at least two men went through his pockets, taking the marijuana and his gun. The judge wrote that the men discussed taking Smith back to his apartment to rob him of the remaining marijuana. Once at the apartment, three men pushed Smith down and ran downstairs to the waiting vehicle.
Smith said he grabbed a gun from someone else in his apartment and went outside to make sure the assailants were gone. He said they were getting into the vehicle and began shooting in his direction. Smith said he returned fire. The shootout continued until the vehicle slowed down, struck an object and stopped. Three men ran away. Davis was pronounced dead at the scene.
May wrote that Smith had the right to defend himself but “the question regarding this issue hinges on whether the defendant had a legal duty to retreat.”
May said it could be argued that Smith’s intent to sell the marijuana was under duress. Because Smith was robbed at gunpoint and the marijuana forcibly removed from his pockets, the judge ruled Smith was not engaged in an unlawful activity.
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