Appellate court to review former Montgomery officer’s manslaughter conviction

MONTGOMERY, Ala. (WSFA) - The Alabama Court of Criminal Appeals is one step closer to reviewing what could be a precedent-setting manslaughter case surrounding an on-duty, officer-involved shooting.

Former Montgomery police officer Cody Smith is convicted of manslaughter for the 2016 on-duty shooting of Greg Gunn. Smith was charged with murder, but last November a jury found him guilty of manslaughter provocation, a lesser-included offense. In addition, the jury also found Smith’s use of lethal force was unjustified.

In October, Smith’s defense filed a brief requesting the Alabama Court of Criminal Appeals to reverse that conviction.

This week the Alabama attorney general’s office formally responded to Smith’s grounds for appeal, arguing the manslaughter conviction should remain in place.

The defense outlined three grounds for appeal: Judge Ben McLauchlin, who presided over the case, abused his discretion by prohibiting testimony that Greg Gunn resisted arrest in 2007, also that McLauchlin wrongly denied Smith a second immunity hearing after the trial judge who denied Smith’s immunity from prosecution was forced to recuse by the Alabama Supreme Court, and finally that the Montgomery County District Attorney’s Office presented insufficient evidence to convict Smith of manslaughter.

The state’s 64-page response rejected the defense’s arguments. First, it sided with the court that the testimony regarding Gunn’s 2007 arrest was inadmissible. It argued the testimony was irrelevant in proving the need for self-defense because Smith had no prior knowledge of Gunn before their encounter in 2016.

“Alabama follows the rule that the deceased’s violent nature may be proved only by evidence of reputation and not by specific acts,” the state’s response cited.

While the state admitted Smith was legally eligible for a second “stand your ground” immunity hearing before McLaughlin, it asserted the defense fell short in making the case.

Smith’s initial “stand your ground” immunity hearing was held by Montgomery Circuit Judge Greg Griffin. Griffin denied Smith’s immunity from prosecution, stating he did not find Smith’s testimony credible.

The Alabama Supreme Court found that Griffin’s statement could give way to the reasonable appearance of bias that “might contravene certain constitutional and due process rights guaranteed to Smith” and called for Griffin’s recusal. The state argued the high court did not find Griffin’s decision to deny Smith’s immunity from prosecution as improper.

“Had the Alabama Supreme Court determined that Judge Griffin was prejudiced and biased in his weighing of the evidence in Smith’s immunity hearing, it could have readily ordered a new hearing upon the appointment of a new judge while it granted Smith’s mandamus petition seeking Judge Griffin’s recusal. It did not,” the brief stated.

Finally, the state maintains ample evidence, including Smith’s testimony, which was presented to render a manslaughter conviction.

Smith’s defense team contended there was no evidence of provocation presented during the trial because Smith was acting as a law enforcement officer at the time of Gunn’s death, which was prompted by Gunn arming himself with an extension paint pole.

The state argued a murder charge could be reduced to manslaughter when the accused is assaulted or is faced with an imminent assault. It referenced the case, Bowden v. Alabama, which cites provocation manslaughter, “is designed to cover those situations where the jury does not believe a defendant is guilty of murder but also does not believe the killing was totally justified by self-defense.”

In a post-conviction order, McLaughlin explained the jury’s decision to convict Smith of a lesser-included offense.

“The verdict of the guilty of Manslaughter indicated that the jury found the defendant, a peace officer, was guilty of intentionally causing the death of Mr. Gunn, but the intent was negated because it was caused in the sudden heat of passion caused by provocation recognized by law, and before a reasonable time for passion to cool, and for reason to reassert itself,” McLaughlin’s order stated. “They further found that the State proved that the peace officer was not justified in using deadly force in defending himself in that the peace officer was not justified in reasonably believing that Mr. Gunn was using or about to use deadly force against him.”

In conclusion, the state reiterated that the jury made the final determination on the credibility of the prosecution’s evidence, whether Gunn’s actions constituted a heat of passion response that supported a manslaughter conviction, or whether Smith was entitled to his use of lethal force.

“The jury could have properly concluded that Smith had no proper basis for pursuing Gunn, and then, when Gunn desperately continued to resist Smith’s use of nonlethal force to subdue him, Smith progressed to the use of deadly force in the heat of the moment and fired his service weapon into Gunn’s body. Smith’s actions undoubtedly constituted manslaughter”, the state asserted.

The defense requested an oral argument before the Alabama Court of Criminal Appeals, stating it could “significantly aid” the court as this is the first conviction involving an on-duty, officer-involved shooting. The state disagreed and expressed the issues before the court are “adequately briefed.”

It is unclear when the Court of Criminal Appeals will take up this case.

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