author: PITTMAN, Judge. MURDOCK, Judge,

text:
    Patrena Booth MCRAE v. David McCoy BOOTH.
    2040969.
    Court of Civil Appeals of Alabama.
    March 3, 2006.

      J.E. Sawyer, Jr., Enterprise, for appellant.
    G. Scott Frazier, Tuscaloosa, for appel-lee.
   PITTMAN, Judge.

This appeal concerns the ultimate disposition of the body of Clarine Booth, who died on June 24, 2005 (hereinafter referred to as “the mother” or “the decedent”).

The record reveals that during the final years of the mother’s life, her two children, Patrena Booth McRae (“the daughter”) and David McCoy Booth (“the son”) engaged in protracted litigation regarding the mother’s financial affairs; the son and the daughter also opposed each other in proceedings involving the administration of the estate of their father. At the time of her death, the mother was 81 years old and resided in a nursing home.

On July 1, 2005, the son filed a petition in the Tuscaloosa Circuit Court seeking the issuance of a judgment allowing him to direct a particular funeral home to prepare the decedent’s body for burial and to inter it. In that petition, the son alleged that the daughter had objected to interment in advance of an autopsy to determine the cause of the decedent’s death and that the decedent’s body had been placed in “cold storage” at the funeral home. Counsel for the son and counsel for the daughter then appeared at a hearing in the circuit court on July 6, 2005, at which time the daughter denied that the son was entitled to the requested relief and averred that the circuit court was without jurisdiction to decide the controversy. After that hearing, counsel for the son submitted a letter brief and copies of certain legal authorities. On July 15, 2005, the circuit court entered a judgment in which it declared that §§ 34-13-11 and 34-13-12, Ala.Code 1975, gave the circuit court the power to “ ‘break the impasse’ ” arising by virtue of the disagreement between the daughter and the son concerning the disposition of the decedent’s body. The circuit court opined that because none of four specified Alabama statutes (Ala.Code 1975, §§ 15-14-2, 25-5-77, 27-19-3, and 27-20-5) authorized an autopsy under the circumstances of the case, the daughter was not entitled to defer the burial of the decedent’s body. The circuit court subsequently denied the daughter’s postjudgment motion filed pursuant to Rule 59, Ala. R. Civ. P., and amended its judgment in only minor respects, but that court, after hearing evidence from a funeral-home employee, set a supersedeas bond amount and allowed the daughter to supersede the judgment pending appeal by posting a bond in the amount of $12,500. The daughter’s appeal from the July 15, 2005, judgment was transferred to this court by the Alabama Supreme Court pursuant to § 12-2-7(6), AIa.Code 1975.

The Alabama Supreme Court, in Cottingham v. McKee, 821 So.2d 169 (Ala. 2001), noted that “Alabama courts have not addressed the question of who has the right of possession of a dead body for the purpose of preservation and burial” and that “Alabama does not have a statute addressing the custody of the remains of deceased persons.” 821 So.2d at 171. Instead, Alabama appears to follow the principle, which is generally accepted in other jurisdictions within the United States, that “the right to possession of a body for the purpose of burial belongs to the surviving spouse” or, in the absence of such a spouse, “the next of kin.” Id.; see also Southern Life & Health Ins. Co. v. Mor gan, 21 Ala.App. 5, 10, 105 So. 161, 166 (opinion on rehearing holding that the “quasi-property” right of possession of a dead body for burial is a legal and judicially protectible right that devolves to the decedent’s next of kin in the absence of a spouse), cert. denied, 213 Ala. 413, 105 So. 168 (1925). Moreover, because at common law “burial of the dead is of ecclesiastical cognizance,” Deavors v. Southern Express Co., 200 Ala. 372, 373, 76 So. 288, 289 (1917), the circuit court, having general equity jurisdiction in direct succession to English ecclesiastical courts (see § 12-11-31(1), Ala.Code 1975, and Northcom, Ltd. v. James, 694 So.2d 1329, 1341 (Hooper, C.J., concurring in the result)), was empowered to determine questions arising in this case concerning the right to possess and dispose of the decedent’s body. See also Sherman v. Sherman, 330 N.J.Super. 638, 646, 750 A.2d 229, 233 (Ch.Div.1999), and Lavigne v. Wilkinson, 80 N.H. 221, 222, 116 A. 32, 32 (1921).

In many cases, only one person will constitute a decedent’s “next of kin” whose rights regarding that decedent’s dead body are judicially protectible. Here, however, the son and the daughter are both the decedent’s “next of kin” — each is of equal kinship to the decedent — and thus the “impasse” referred to by the circuit court in its judgment has arisen.

Although the son cites §§ 34-13-11 and 34-13-12, Ala.Code 1975, as supporting the circuit court’s judgment that he should have authority to direct the burial of the decedent’s body over the daughter’s objections, the pertinent question presented by the daughter’s appeal is, in actuality, not controlled by those statutes. Section 34-13-12(a) deals with the liability of funeral directors or funeral establishments when express written authorization for final disposition or cremation of a dead body is received from “the authorizing agent,” while § 34-13-11 simply lists persons and groups of persons, in order of priority, who are entitled to act as “authorizing agents” for purposes of § 34-13-12. While a contest between parties who were in differing degrees of kinship to a decedent during his or her lifetime might be decided by reference to such statutes (see Andrews v. McGowan, 739 So.2d 132, 135-36 (Fla.Dist.Ct.App.1999)), those statutes do not shed light upon which party is entitled to prevail in a contest over rights regarding a decedent’s dead body among multiple potential “authorizing agents” in the same degree of kinship. The circuit court therefore erred in relying upon those statutes in permitting the son to direct that the decedent’s body be interred.

However, the circuit court’s conclusion regarding the source of its authority to “break the impasse” does not, in and of itself, warrant reversal of the judgment under review. As we have stated, the circuit court’s authority to decide the controversy stems not from Ala.Code 1975, §§ 34-13-11 and 34-13-12, but from that court’s equity powers. While no case from Alabama sets forth principles governing the exercise of those powers in this fact setting, authority from other states indicates that when disputes arise among a decedent’s kin concerning the proper disposition of a decedent’s corpse, a court should decide the matter based upon the inherent equity of the ease appearing from all the attending facts and circumstances:

“ ‘If a dispute arises about it among relatives, as in the present case, it must be determined by principles of equity and such considerations of propriety and justice as arise out of the particular circumstances of the case. No general rule to be applied absolutely in all cases can be laid down upon the subject, for what is fit and proper to be done in each case must depend upon the special circumstances of that case. It is a jurisdiction which belongs to equity, and the chancellor will exercise it with great care, having regard to what is due to the natural feelings and sensibilities of individuals, as well as to what is required by considerations of public propriety and decency.’ ”

Wood v. E.R. Butterworth & Sons, 65 Wash. 344, 347-48, 118 P. 212, 214 (1911) (quoting Fox v. Gordon, 16 Phila. 185, 186-87 (Pa. County Ct. 1883)); accord Smiley v. Bartlett, 3 Ohio Cir. Dec. 432, 434, 6 Ohio C.C. 234, 238 (1892) (when next of kin disagree concerning burial place, a court should determine the proper course to pursue “in the exercise of its best judgment, and with due regard to the rights of all the parties”).

Thus, the circuit court was empowered to determine whether the decedent’s body should be interred immediately, as contended by the son, or whether the decedent’s body should be interred only after an autopsy, as contended by the daughter. In choosing the former option, the circuit court entered a judgment that expedited the interment of the decedent’s body in a manner consistent with public policy favoring prompt and decent burial of the dead. Haeberle v. Weber, 56 N.J.Super. 428, 431, 153 A.2d 390, 392 (Law Div.1959). As stated by a Texas intermediate appellate court:

“Public policy and due regard for the public health, as well as the universal sense of propriety, require that dead bodies of human beings be decently cared for and disposed of at the very earliest moment, consistent with the exigencies of the case and due regard for the prevailing custom of the country and the religious convictions of the deceased and his family[.] ... [T]he universal sentiment of humanity against profanation[ ] ... impels courts generally to discourage delay in the interment of dead bodies. The delay in the interment of dead bodies unnecessarily is repugnant to the sentiment of humanity and should not be permitted, except under circumstances indicating a necessity or for compelling reasons therefor.”

Burnett v. Surratt, 67 S.W.2d 1041, 1041 (Tex.Civ.App.1934).

The son’s desire to immediately inter the decedent’s body is wholly consistent with the principle of speedy interment recognized in the foregoing authorities. Stated simply, as the circuit court recognized, a dead body “ ‘must be laid away.’ ” Rollins v. Phillips, 554 So.2d 1006, 1009 (Ala.1989) (quoting Louisville & N.R.R. v. Wilson, 123 Ga. 62, 63, 51 S.E. 24, 25 (1905)). The daughter, on the other hand, offered the circuit court no authority under which an autopsy could be statutorily compelled in this ease. Under the circumstances, we cannot conclude that the circuit court erred in determining that the equities of the case favored a quick interment of the decedent’s body rather than maintenance of the status quo — continued cold storage of the body at a funeral home at the expense of $95 per day — until such indeterminate time as the son might be persuaded to add his consent to a private autopsy to that of the daughter.

Based upon the foregoing facts and authorities, we conclude that the circuit court’s judgment is due to be affirmed.

AFFIRMED.

CRAWLEY, P.J., concurs.

THOMPSON, J., concurs in the result, without writing.

MURDOCK, J., concurs in the result, with writing, which BRYAN, J., joins.

MURDOCK, Judge,

concurring in the result.

Sections 34-13-11 and -12, Ala.Code 1975, were intended to insulate funeral directors and funeral establishments from liability for their actions in connection with the disposition of human remains. I therefore am not persuaded that, as stated in the main opinion, a “contest between [surviving relatives of the decedent] who were in differing degrees of kinship to the decedent during his or her lifetime,” as opposed to a contest between a surviving relative and a funeral director, “might be decided by reference to such statutes.” 938 So.2d at 434. Nor do I consider the Florida case of Andrews v. McGowan, 739 So.2d 132 (Fla.Dist.Ct.App.1999), persuasive authority for that notion.

Nonetheless, the main opinion does conclude that the aforementioned statutes do not shed light upon which party is entitled to prevail in a contest over the disposition of a relative’s human remains among more than one surviving relative of the same degree of kinship. Accordingly, the main opinion concludes, and I agree, that the circuit court erred in relying upon those statutes in deciding the dispute between the son and the daughter in this case.

The main opinion, however, goes on to justify an affirmance of the circuit court’s judgment based upon “the inherent equity of the case” and a “public policy” consideration identified by the main opinion, namely, the need for the prompt burial of the dead. 938 So.2d at 434, 435. Those stated grounds for affirmance are different from the statutory grounds upon which the circuit court based its judgment. Further, neither party to this appeal has briefed such principles to this court. Accordingly, I do not think it appropriate, and for the reasons described below I do not find it necessary, for this court to explore those principles on its own in order to affirm the circuit court’s judgment.

While it is true that this court “ ‘ “ ‘will affirm the judgment appealed from if supported on any valid legal ground,’ ” ’ ” Blackmon v. Brazil, 895 So.2d 900, 905 (Ala.2004) (quoting Kingvision Pay-Per-View, Ltd. v. Ayers, 886 So.2d 45, 51 (Ala.2003), quoting in turn other cases) (emphasis on the word “legal” added in Blackmon by our Supreme Court), the analysis in which the main opinion engages contemplates the finding and consideration of facts and the weighing of facts in light of equitable and policy considerations. Such tasks are within the province of trial courts, and not this court of appeals. See generally Hinds v. Hinds, 887 So.2d 267, 272 n. 2. (Ala.Civ.App.2004).

Moreover, by deciding this case based on the analysis laid out in the main opinion, this court is deciding the ease based on principles not fully addressed by either the parties or the trial court in the proceedings below and, moreover, not briefed to this court. I believe this court attempts on its own to identify what would be the appropriate equitable and policy concerns to apply in a case such as this at the peril of misidentifying those concerns or overlooking additional or countervailing equitable or policy concerns that might be applicable (e.g., perhaps deference should be given to a next of kin requesting an autopsy under circumstances suggesting that misconduct may have led to the decedent’s death) because we do not have the benefit of the parties having fully addressed these matters through the adversarial process. I do not believe this court should move to fill an apparent void in the law (particularly when, for the reasons described below, it is not necessary for us to do so in order to decide the case before us) when the parties have not addressed the issue in the manner contemplated by the main opinion.

Nonetheless, I do agree that the circuit court’s judgment should be affirmed in this case. I agree with that result because the daughter, who is the appellant in this case, has given us no basis for reversing that judgment.

Before the circuit court, the daughter took the singular position that the circuit court simply did not have jurisdiction. The circuit court disagreed with the daughter, and it ultimately entered a final judgment favoring the son based on §§ 34-13-11 and -12.

The daughter’s only argument in her brief to this court on appeal is that “she has equal rights as a next of kin to determine the disposition of her mother’s body.” She cites no authority for this proposition. It is not this appellate court’s role to do legal research or create an argument for an appellant. McLemore v. Fleming, 604 So.2d 353, 353 (Ala.1992).

Even if the daughter had cited authority for her position that she has a coequal right with that of her brother to decide the disposition of her mother’s remains, that position cannot be accepted by this court as a ground for reversing the circuit court’s judgment. The daughter’s position essentially is that neither party should be favored. The nature of the dispute in this case, however, is such that leaving the dispute in a permanent impasse is not an alternative for this court, just as it was not an alternative for the trial court. Thus, if the daughter is to succeed in this appeal, she must provide this court with some reason for which she ultimately should prevail over the son. That is, it is incumbent upon the daughter to present to this court an argument as to what legal standard or legal principles should have been applied by the circuit court that would have resulted in a judgment in her favor. She has not done that. It is on that ground alone that I believe this court should not reverse the judgment of the circuit court. See, e.g., Andrews v. Merritt Oil Co., 612 So.2d 409 (Ala.1992) (this court will not reverse a trial court’s judgment on an argument not presented to the trial court); and McLemore v. Fleming, 604 So.2d at 353 (it is not the appellate court’s role to do legal research or create an argument for an appellant).

BRYAN, J., concurs.

      . Although a number of states statutorily authorize "only one of the next of kin” to permit an autopsy, at common law "the next of kin” have the right to grant or deny authority for a private autopsy. 22A Am.Jur.2d Dead Bodies § 43 (2003). Under that principle, in order for such an autopsy to occur in this case, it would appear that both the son and the daughter would have to agree to such a procedure.


source: Caselaw Access Project

author: PER CURIAM. MURDOCK, Judge, BRYAN, Judge,

license: Public Domain

text:
    Howard ROSS v. Barbara BLACKBURN and Beatrice Blackburn.
    2040825.
    Court of Civil Appeals of Alabama.
    March 3, 2006.

      Howard Ross, pro se.
    Submitted on appellant’s brief only.
   PER CURIAM.

Howard Ross, the plaintiff in this unlawful-detainer action, appeals a judgment dismissing, with prejudice, his claims for unpaid rent against his former tenants, the defendants Barbara Blackburn and Beatrice Blackburn.

On September 4, 2004, Ross rented a house to the Blackburns, and the Black-burns agreed to pay Ross rent in the amount' of $395 per month. On December 21, 2004, Ross brought an unlawful-detain-er action against the Blackburns in the Madison District Court. Ross sought not only possession of the house but also unpaid rent. Answering the complaint, the Blackburns alleged that they had paid all rent owed except for $200 of the $395 due for December. They further alleged that the roof of the house had a hole in it, which allowed rain to fall inside the house, and that Ross was seeking to evict them only because he wanted to avoid the expense of putting a new roof on the house. They also alleged that the house was infested with rats and lacked a functioning heater. Following a bench trial, the district-court judge, on January 12, 2005, entered a judgment in favor of the Black-burns.

On January 14, 2005, Ross appealed to the Madison Circuit Court and requested a bench trial. On January 21, 2005, Ross moved for a summary judgment on both his claim for possession of the house and his claim for unpaid rent. Ross sought $1,090 in unpaid rent and late charges. In support of his summary-judgment motion, Ross submitted his affidavit, which, in pertinent part, stated:

“2. Howard Ross entered into a lease agreement with Barbara Blackburn and Beatrice Blackburn on Sept. 4, 2004 for monthly rental of the property of $395.00 with 10% late fees for rent more than 10 days delinquent, and a $395.00 deposit. The lease contained a clause terminating the lease for failure to pay rent with no further notice required.... “3. Barbara Blackburn and Beatrice Blackburn paid $395.00 deposit and $395.00 September rent. They paid $395.00 October rent. They were given a $45.00 credit on their November rent for lighting their pilot light by Huntsville Utilities. A $150.00 check from Catholic Concern was also credited on their November rent.
“4. On December 6, 2004 Howard Ross served upon Barbara Blackburn at her residence a notice demanding possession of the property due to violation of the lease, according to section 6-6-310, Code of Alabama, 1975.... Howard Ross has not received any payments from the defendants or anyone on their behalf since the service of the notice.” Ross did not submit a narrative sum-

mary of undisputed material facts as required by Rule 56(c)(1), Ala. R. Civ. P. Following a hearing regarding the summary-judgment motion, the trial court entered the following judgment on February 25, 2005:

“On February 17, 2005, both parties to the action for unlawful detainer appeared to be heard on [Ross’s] Motion for Summary Judgment and Expedited Hearing. The Court finds that [Ross’s] action for unlawful detainer has been rendered moot by [the Blackburns’] vacating of the premises. After further consideration of the pleadings, evidentia-ry submissions, and oral argument, the court finds that [Ross’s] Motion for Summary Judgment as to the issue of rent is due to be denied for failure to comport with the requirements of Rule 56 of the Alabama Rules of Civil Procedure, which requires the party moving for summary judgment to support their motion with a narrative summary of undisputed facts. This action is dismissed with prejudice. Costs are taxed as paid.”

(Emphasis added.)

On March 21, 2005, Ross filed a motion titled “Motion [pursuant to Ala. R. Civ. P.] 59 for Trial,” in which he alleged:

“Howard Ross moves this court by Ala. Rule [of Civil] Procedure] 59 to set aside and open the judgment in this case and order a trial[-]court trial in this case so that he may present witnesses and evidence for his cause. As grounds[,] he claims that the summary judgment was partial and did not fully adjudicate his claims and there is a controversy over whether he is due rent[.] [H]e is entitled to a trial and cites Robert G. Donald v. City National Bank of Dothan, 329 So.2d 92 (Ala.1976) [, which is] attached.”

The trial court held a hearing regarding Ross’s Rule 59 motion on April 28, 2005; however, Ross did not appear at the hearing. On May 11, 2005, the trial court entered the following order:

“This matter was submitted to the Court on the Motion to Alter, Amend, or Vacate the Court’s previous denial of [Ross’s] Motion for Summary Judgment, and the Court’s dismissal of the Complaint for failure to comply ivith the Alabama Rules of Civil Procedure. [Ross] failed to appear for a hearing on this matter scheduled for April 28, 2005. The Court orders that the motion is due to be and hereby is DENIED.”

(Emphasis added.) Ross timely appealed the judgment in favor of the Blackburns.

On appeal, Ross argues that he was entitled to a trial regarding his claim for unpaid rent. We agree. Although a mov-ant’s failure to support his summary-judgment motion with a Rule 56(c)(1) narrative summary of undisputed material facts can lead to the denial of his summary-judgment motion, Northwest Florida Truss, Inc. v. Baldwin County Commission, 782 So.2d 274 (Ala.2000), it does not warrant a Rule 41(b), Ala. R. Civ. P., dismissal of the movant’s claim. Cf. Weatherly v. Baptist Med. Ctr., 392 So.2d 832 (Ala.1981) (holding that, without a record of willful refusal to comply with court orders, a record of failure to answer interrogatories did not justify a dismissal with prejudice). Thus, although the trial court properly denied Ross’s summary-judgment motion because it was not accompanied by a Rule 56(c)(1) narrative summary of undisputed material facts, it erred in dismissing his claim for unpaid rent. Therefore, we reverse the judgment dismissing Ross’s claim for unpaid rent and remand the case to the trial court for further proceedings.

REVERSED AND REMANDED.

THOMPSON and PITTMAN, JJ„ concur.

MURDOCK, J., concurs specially, with writing, which CRAWLEY, P.J., joins.

BRYAN, J., dissents, with writing.

MURDOCK, Judge,

concurring specially.

The case upon which the per curiam opinion primarily relies is Northwest Florida Truss, Inc. v. Baldwin County Commission, 782 So.2d 274 (Ala.2000). Justice Lyons’s dissenting opinion in that case made a good argument that the requirements of Rule 56(c)(1), Ala. R. Civ. P., had been satisfied. 782 So.2d at 277 (Lyons, J., dissenting). A majority of the Supreme Court did not accept Justice Lyons’s analysis, however, and this court is, of course, bound by the resulting precedent.

I also note that the plaintiff in the present case does not argue that the motion and affidavit he filed were distinguishable from the motions at issue in Northwest Florida Truss and should be deemed to have satisfied the requirements of Rule 56(c)(1). For purposes of this appeal, therefore, the plaintiff has conceded noncompliance with that rule. As a result, the only question presented to this court is what was the proper consequence of that noncompliance.

I agree with the main opinion that, while a summary-judgment movant’s failure to comply with Rule 56(c)(1) may justify the trial court in denying that party’s summary-judgment motion, it does not provide a basis for the trial court to go the step further of entering a summary judgment against the movant.

CRAWLEY, P.J., concurs.

BRYAN, Judge,

dissenting.

I must respectfully dissent. The main opinion reverses the trial court’s judgment on the basis of a principle of law that Howard Ross neither argued to the trial court nor argued in his brief to this court. It is well settled that an appellate court will not reverse a trial court’s judgment on the basis of a principle of law that was not argued to the trial court, State Farm Mut. Auto. Ins. Co. v. Motley, 909 So.2d 806, 821 (Ala.2005), and will not reverse a trial court’s judgment on the basis of a legal principle that was not argued to the appellate court, Tucker v. Cullman-Jefferson Counties Gas Dist., 864 So.2d 317, 319 (Ala.2003). Because the reversal of the trial court’s judgment violates those principles of appellate review, I must respectfully dissent.

      . In pertinent part, Rule 56(c)(1) states:
      "The motion [for a summary judgment] shall be supported by a narrative summary of what the movant contends to be the undisputed material facts; that narrative summary may be set forth in the motion or may be attached as an exhibit. The narrative summary shall be supported by specific references to pleadings, portions of discovery materials, or affidavits and may include citations to legal authority."


author: SHAW, Judge.

text:
    Marcus Antwine WILLIAMS v. STATE of Alabama.
    CR-03-2051.
    Court of Criminal Appeals of Alabama.
    April 29, 2005.
    Rehearing Denied June 17, 2005.
    Certiorari Denied March 10, 2006 Alabama Supreme Court 1041445.

      Walden M. Buttram, Gadsden, for appellant.
    Troy King, atty. gen., and P. David Bjurberg, asst. atty. gen., for appellee.
   SHAW, Judge.

Marcus Antwine Williams was indicted for murder, a violation of § 13A-6-2, Ala. Code 1975, for the shooting death of Victor Martin on October 5, 2002. A jury convicted him of the lesser-included offense of manslaughter. He was sentenced to 20 years’ imprisonment; the sentence was split, and he was ordered to serve 5 years in prison.

The sole issue raised on appeal is whether the trial court erred when it refused to instruct the jury on self-defense as Williams had requested. Williams maintains that he was entitled to have the jury charged on self-defense because, he says, evidence of self-defense was presented at his trial; his requested charges on self-defense correctly stated the law and were not misleading; and the trial court’s refusal to charge the jury on self-defense denied him a fair trial.

The evidence adduced at trial indicated the following. On Saturday, October 5, 2002, Williams shot and killed Martin in the parking lot of McNeal’s Carwash on East Broad Street in Gadsden. Dr. Joseph Embry, the medical examiner who performed the autopsy on Martin, testified that Martin died from two gunshot wounds, one in the chest and one in the back. Dr. Embry testified that there was no gunpowder stippling around either of the wounds, which indicated that the shots were probably fired from at least three and one-half feet away. Jason and Patricia Becker, who lived across the street from the carwash, were having a yard sale the day of the shooting and witnessed the incident. Both testified that they saw Williams pull his car into the parking lot of the carwash and that two to five minutes later a second car, a dark color Cadillac, pulled into the parking lot and parked near the driver’s side of Williams’s car. According to the Beckers, nothing was blocking Williams from leaving the parking lot. The Beckers said that the driver of the Cadillac got out of his car, walked to Williams’s car, placed his hands on the driver’s door, and began talking to Williams. The Beckers then heard four gunshots and saw the driver of the Cadillac attempt to go back to his car. However, he fell to the ground, and the Beck-ers then saw Williams get out of his car, stand over the driver of the Cadillac, and shoot him two times. According to the Beckers, Williams then got back in his car and left the scene.

Williams testified on his own behalf. He admitted shooting Martin, but claimed that he did so in self-defense. According to Williams, he had had prior altercations with Martin, and he thought Martin was armed. Williams testified that on Monday, September 30, 2002, a few days before the shooting, Martin, who was 30 years old at the time, had walked toward him holding a gun and that Williams, who was 16 years old at the time, quickly drove away. Martin got in his car and chased Williams. According to Williams, he pulled into McNeal’s Carwash on East Broad Street and Martin pulled in right behind him. Williams said that both he and Martin got out of their cars, and that Martin had a gun in his hand. Williams testified that Martin said that he had heard that Williams had been telling Martin’s 15-year-old girlfriend to “forget Big Vic [Martin]” because Martin “ain’t doing nothing for her.” (R. 201.) Williams told Martin that he did not know what Martin was talking about and he asked Martin to put the gun down, at which point Martin went back to his car and threw the gun on the seat. Williams said that as he was turning to get in his car, Martin hit him on the head two or three times and that he attempted to fight back, but that he fell. According to Williams, “some of the guys at the carwash” broke up the fight and Martin then got in his car and left. (R. 201.) Later that day, Williams reported the incident to the police and identified Martin as his assailant. Thereafter, a complaint was filed alleging that Martin had assaulted Williams, and the City of Gadsden issued an arrest warrant for Martin. (C. 98.)

Williams testified that the next time he saw Martin was on Thursday night when Martin came to Williams’s house and asked him to “drop the warrant” because Martin was “looking at 30 years.” (R. 203.) Williams testified that Martin indicated that he thought that Williams had told the police that Martin was selling drugs. Martin left after Williams told him that he would talk to his family about not pressing charges. Williams testified that after this encounter with Martin on Thursday night, he obtained a gun “[fjrom a Mexican guy at the store.” (R. 235.)

Williams testified that Martin came to his school on Friday and pulled beside Williams’s car and that when Williams came out of school to get into his car, Martin opened his window and asked Williams if he was going to drop the charges. Williams stated that he acted like he could not hear Martin and Martin then asked Williams to follow him to the store, but Williams told him no and Martin left. Williams testified that he saw Martin again when he was on his way home; Martin pulled out in front of him, slammed on the brakes, and then proceeded to turn down another street.

Williams testified that on Saturday, October 5, 2002, he was stopped at a stop sign when Martin drove by. As Williams continued driving, Martin pulled in behind him and began to follow him “the exact same way he did ... when he [had] pulled the gun on [Williams].” (R. 208.) Williams stated that he was afraid of Martin because he had always heard “don’t mess with Big Vic” (R. 210), and that after Martin had pulled in behind him, he “sped up ... [but that Martin] was right behind [him] flashing his lights ... just begging ... Tull over’ ” (R. 208-09), and that he was worried because he thought that Martin “had called up there and [learned] that [Williams had not] dropped the warrant on him.” (R. 209.) Williams testified:

“I turned on East Broad and I went straight on down and I turned to the carwash and he pulled in right — right behind me. And I pulled all the way up and he parked right here by my — by my back door. And he got out of his car and walked around, coming towards me. By then I had opened my door. He kind of walked — walked around toward me, balled up his fist and reached be-liind him as if he was pulling up his pants or something and that’s when I opened the door and I shot.”

(R. 209.) Williams further testified that “before the ear could make a really complete stop [Martin] had already [thrown] his car ... in park ... and got out and was walking around towards me with his fist balled up and he reached back behind him.” (R. 210-11.) Williams stated that as Martin approached his car, Martin “was walking extremely fast” (R. 211) and that “[he] thought [Martin] had [a gun because, he said, Martin had] had a gun” when Martin had chased Williams to the car-wash on a prior occasion. (R. 219.)

Williams also testified that he could not have left the scene even though he had left his car motor running because, he said, he did not have time to “turn back around and put [his car] in gear and drive away” (R. 211); he could not have driven forward because there were cars in the two bays of the carwash in front of him; he did not have enough room to make a turn in front of Martin’s ear and leave; and he could not get out of his car and run because he “didn’t want [Martin] to shoot [him] in the back.” (R. 212.) Williams stated that after shooting Martin, he “backed back onto East Broad Street and [he] left” the scene. (R. 213.) When asked on cross-examination what had prevented him from putting his car in reverse, backing out, and leaving the scene after Martin had gotten out of his car and began walking toward Williams’s car, the following exchange occurred:

“[Williams]: There was a stump and a big, big old hole over there. And as I pulled up he pulled up right — and jumped out and ... walked towards me. If I would have backed up he probably would have shot me through the window.
“[Prosecutor]: He didn’t have a gun, though?
“[Williams]: I thought he had — he had a gun the first two times.”

(R. 219) (emphasis added).

Section 13A-3-23, Ala.Code 1975, provides:

“(a) A person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for the purpose. A person may use deadly physical force if the actor reasonably believes that such other person is:
“(1) Using or about to use unlawful deadly physical force; ...
“(b) Notwithstanding the provisions of subsection (a), a person is not justified in using deadly physical force upon another person if it reasonably appears or he knows that he can avoid the necessity of using such force with complete safety:
“(1) Byretreating....”

An accused has the right to have the jury charged on “ ‘any material hypothesis which the evidence in his favor tends to establish.’ ” Ex parte Stork, 475 So.2d 623, 624 (Ala.1985). “In determining whether an instruction was supported by the evidence the question is not whether the Supreme Court or Court of Criminal Appeals believes the evidence, but simply whether such evidence was presented.” Id. “[E]very accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility.” Ex parte Chavers, 361 So.2d 1106, 1107 (Ala.1978). “ ‘ “It is a basic tenet of Alabama law that ‘a party is entitled to have his theory of the case, made by the pleadings and issues, presented to the jury by proper instruction, ... and the [trial] court’s failure to give those instructions is reversible error.’ ” ’ ” Ex parte McGriff, 908 So.2d 1024, 1035 (Ala.2004), quoting Winner Int’l Corp. v. Common Sense, Inc., 863 So.2d 1088, 1091 (Ala.2003), quoting in turn other cases. “In order to determine whether the evidence is sufficient to necessitate an instruction and to allow the jury to consider the defense, we must view the testimony most favorably to the defendant.” Ex parte Pettway, 594 So.2d 1196, 1200 (Ala.1991).

The State argues that the trial court properly refused to instruct the jury on self-defense because, it says, Williams faded “to produce evidence that Martin was about to use deadly physical force against him when he shot Martin” (State’s brief at p. 16), and “failed to produce any evidence that he could not have retreated with complete safety.” (State’s brief at p. 17.) We disagree.

Contrary to the State’s contention, Williams did not have to present evidence that Martin was, in fact, about to use deadly physical force against him; rather, Williams only had to present evidence indicating that he reasonably believed that Martin was about to use deadly physical force against him. As this Court explained in King v. State, 478 So.2d 318 (Ala.Crim.App.1985):

“The general rule is that ‘every accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility.’ Chavers v. State, 361 So.2d 1106, 1107 (Ala.1978). If there is ‘any evidence, however slight, tending to support’ that the defendant acted in self-defense, the issue should be submitted to the jury. King v. State, 71 Ala. 1, 4 (1881). In most cases, the issue of self-defense is one of ultimate fact solely for determination by the jury, Domingus v. State, 94 Ala. 9, 11 So. 190 (1892), however ‘unsatisfactory and inconclusive to the judicial mind ’ the evidence of self-defense may appear. Burns v. State, 229 Ala. 68, 70, 155 So. 561, 562 (1934).
“However, the court should not instruct on the law of self-defense where there is no evidence to sustain the plea. Raines v. State, 455 So.2d 967, 974 (Ala.Cr.App.1984); Tarver v. State, 137 Ala. 29, 34 So. 627 (1903); C. Gamble, McElroy’s Alabama Evidence, § 457.02(5) (3d ed.1977). ‘[I]n the absence of all evidence having a tendency to show that at the time of the killing the accused was in imminent peril of life, or grievous bodily harm, or of the existence of circumstances creating in his mind a reasonable belief of such peril, ... these instructions were abstract.’ King, 71 Ala. at 4-5. A trial judge may properly refuse to charge the jury on self-defense where he determines that ‘the defendant could not set up self-defense under the facts.’ Consford v. State, 15 Ala.App. 627, 634, 74 So. 740, 743, cert. denied, 200 Ala. 23, 75 So. 335 (1917).
“In determining whether to charge the jury on self-defense, ‘evidence most favorable to the defendant should be considered and if there is the slightest evidence tending to prove a hostile demonstration which can be reasonably interpreted as placing the accused, at the time of the killing, in apparent imminent danger to life or other grievous bodily harm then the matter of self-defense becomes a question for the jury.’ Byrd v. State, 257 Ala. 100, 104, 57 So.2d 388, 391 (1952).
“Before the issue of self-defense is submitted to the jury, the defendant has the burden of proving, among other things, that he ‘reasonably believe[d],’ Alabama Code 1975, § 13A-3-23, that his attacker was about to use unlawful deadly physical force, ‘unless this fact arises out of the evidence produced against him to prove the homicide.’ Cosby v. State, 269 Ala. 501, 505, 114 So.2d 250, 253 (1959).
“ ‘In the absence of evidence tending to show both that the appellant was in actual or apparent imminent peril and that he was unable to retreat, it is assumed that he was not in such peril and that he was able to retreat. It necessarily follows that the accused has the burden of producing evidence warranting both of such findings and that the discharge of that burden is one of the conditions precedent to his being entitled to having his claim of self-defense submitted to the jury. Naugher v. State, 105 Ala. 26, 17 So. 24; Cosby v. State, 269 Ala. 501, 114 So.2d 250.’ Payne v. State, 48 Ala. App. 401, 406-07, 265 So.2d 185, 190, cert. denied, 288 Ala. 748, 265 So.2d 192, cert. denied, 409 U.S. 1079, 93 S.Ct. 703, 34 L.Ed.2d 669 (1972).
“This belief that the assailant is going to use unlawful deadly physical force must be both honestly entertained and reasonable.
“‘The law requires that a belief of imminent peril and urgent necessity to slay in self-defense, though it may be based on appearances, must be both well-founded and honestly entertained. Williams v. State, 161 Ala. 52, 59, 50 So. 59 (1909). A merely “honest” belief, unless a reasonable one, that the killing was necessary, will not make it justifiable.
“ ‘ “It is not an honest, but a reasonable belief, that justifies. An honest may not be a reasonable belief; it may be the offspring of fear, alarm or cowardice, or it may be the result of carelessness, and irrational. A reasonable belief, generated by the attendant circumstances— circumstances fairly creating it— honestly entertained, will justify a homicide; but not an irrational belief, however honest it may be.” Holley v. State, 75 Ala. 14, 19 (1883).’ Howard, v. State, 420 So.2d 828, 832 (Ala.Cr.App.1982).
“ ‘The question is not merely what the defendant believed, but also, what did he have the right to believe.’ Alabama Code 1975, § 13A-3-23 Commentary.
“However, ‘[t]he reasonableness of an apprehension of death or great bodily injury is a question of fact for the jury.’ F. Wharton, The Law of Homicide, § 287 at 462 (3d ed.1907). ‘[I]t is a question for the jury to satisfy itself from all the evidence in the case whether or not the defendant was in imminent and manifest danger either of losing his own life or of suffering grievous bodily harm, or that it appeared so to the mind of a reasonable man.’ Dilburn v. State, 16 Ala.App. 371, 372, 77 So. 983, 984 (1918). See also Kennedy v. State, 240 Ala. 89, 196 So. 884 (1940); Moore v. State, 54 Ala.App. 22, 304 So.2d 263, cert. denied, 293 Ala. 768, 304 So.2d 268 (1974); Sterrett v. State, 31 Ala.App. 161, 13 So.2d 776, cert. denied, 244 Ala. 367, 13 So.2d 780 (1943).
“Whether the accused reasonably believes that another person is using or is about to use unlawful deadly physical force against him is a question for the jury. ‘The law requires that the circumstances should be such as to create a reasonable belief of impending necessity. These circumstances are to be ascertained by the jury ... ’ Oliver v. State, 17 Ala. 587, 599 (1850). ‘It is solely for the jury to determine whether any particular inference that may possibly be drawn from given facts is or is not a reasonable inference, and not for the court to substitute its judgment for theirs in passing upon the character of inferences afforded by the evidence.’ Domingus v. State, 94 Ala. 9, 13, 11 So. 190, 192 (1892) (error to charge jury that from certain facts they might reasonably infer that defendant was not in imminent danger).
“ ‘The law of self-defense makes use of (1) rules, and (2) the reasonable-person standard. The court determines what the rules are, but it is for the jury to determine whether the standard has been met by the evidence in the particular case.’ R. Perkins & R. Boyce, Criminal Law 1116 (3d ed.1982). ‘It is to be noted that reasonableness is determined by a standard — a reasonable person under like circumstances — and the determination is made by the jury.’ Perkins, at 1117. ‘A self-defense ... instruction should be given when any evidence is given showing the defendant’s subjective belief that the use of force was necessary.’ Perkins, at 1115-16, quoting People v. Lockett, 82 Ill.2d 546, 45 Ill.Dec. 900, 903, 413 N.E.2d 378, 381 (1980).”

478 So.2d at 319-22 (emphasis added).

Similarly, in Lemley v. State, 599 So.2d 64 (Ala.Crim.App.1992), this Court stated:

“If there is any evidence to show a hostile demonstration that can be reasonably considered as having placed the accused in apparent imminent danger of his life, the issue of self-defense is for the jury. Turner v. State, 160 Ala. 40, 43, 49 So. 828, 829 (1909). ‘The question as to whether or not the circumstances in which the parties were at the time the fatal blow was stricken were such as to impress a reasonable man that the defendant was in imminent danger of losing his life or suffering great bodily harm, and whether or not the defendant entertained such belief were inferential facts to be drawn by the jury.’ Kennedy v. State, 240 Ala. 89, 91, 196 So. 884, 885 (1940). Whether the accused was in imminent peril at the time he shot the victim is a question of fact for the jury. Cook v. State, 46 Ala.App. 663, 665, 248 So.2d 158, 160 (1971). It is solely for the jury to determine whether the inference that accused was in actual or apparent immediate peril is reasonable. Domingus v. State, 94 Ala. 9, 13, 11 So. 190, 192 (1891).
‘The rule of self-defense is that persons may and must act on the reasonable appearance of things. While it is not required that where a person is menaced he must wait until a weapon is presented ready for deadly execution, yet the danger must be real or so manifestly apparent as to create a reasonable belief of presently impending peril to life or limb. In determining this question evidence most favorable to the defendant should be considered and if there is the slightest evidence tending to prove a hostile demonstration which can be reasonably interpreted as placing the accused, at the time of the killing, in apparent imminent danger to life or other grievous bodily harm then the matter of self-defense becomes a question of fact for the jury.’
“Byrd v. State, 257 Ala. 100, 104, 57 So.2d 388, 391 (1952). See also Raines v. State, 455 So.2d 967, 974 (Ala.Cr.App.1984).”

599 So.2d at 74 (emphasis added). See also Ex parte Pettway, supra, and Mordecai v. State, 858 So.2d 993 (Ala.Crim.App.2003).

There was evidence presented, specifically Williams’s own testimony, when viewed in a light most favorable to Williams, from which the jury could have concluded that Williams reasonably believed that Martin was about to use deadly physical force against him. Williams testified about prior altercations with Martin, including one in which Martin brandished a gun. Martin had previously assaulted Williams, and a warrant had been issued for Martin’s arrest. Williams said that on the day of the shooting he was afraid that Martin had learned that he had not dropped the charges stemming from the prior altercation; that when he stopped at the carwash, Martin pulled in behind him, jumped out of his car, and walked quickly toward him; and that as Martin was walking toward him, he saw Martin reach back behind his back. Although Williams testified that he did not see a weapon and he described Martin’s actions as “reaching] back behind him as if he was pulling up his pants” (R. 209), Williams testified that he thought that Martin had a gun because Martin had had a gun on the prior occasion when he had chased Williams to the carwash and that he was afraid of Martin. This evidence, however weak or doubtful in credibility it may be, indicated that Williams believed that Martin was about to use deadly physical force against him; whether that belief was reasonable under the circumstances was a question for the jury.

Likewise, there was evidence presented indicating that Williams could not have “avoid[ed] the necessity of using [deadly physical] force with complete safety ... [b]y retreating.” § 13A-3-23(b)(l), Ala.Code 1975.

“ ‘[A] person is not justified in using deadly physical force upon another person if it reasonably appears or he knows that he can avoid the necessity of using such force with complete safety: (1) By retreating.’ Alabama Code 1975, § 13A-3-23(b). ‘As a general rule, the accused is not entitled to have his claim of self-defense submitted to the jury if the undisputed evidence shows clearly any of the following: ..., that the accused was able to retreat....’ C. Gamble, McElroy’s Alabama Evidence § 457.02(5)(a) (3rd ed.1977). ‘In the absence of evidence warranting a finding both that the accused was in actual or apparent imminent peril and that he was unable to retreat, it is assumed that he was not in such peril and that he was able to retreat.’ McElroy at § 457.02(5)(b). ‘Where the accused claims the [use of deadly physical force] was in self-defense, the onus rests on him to show that he could not safely retreat without increasing or apparently increasing his peril.’ McDonald v. State, 340 So.2d 80, 84 (Ala.Cr.App.), cert. denied, 340 So.2d 84 (Ala.1976).”

Weaver v. State, 500 So.2d 1278, 1279 (Ala.Crim.App.1986) (emphasis added). An instruction on self-defense is warranted if there is evidence, however weak or doubtful in credibility, indicating that the defendant could not, or it reasonably appeared from the circumstances that the defendant could not, retreat with complete safety, i.e., without increasing or apparently increasing his peril. The question of whether one could have retreated is one of reasonableness and, thus, is necessarily a question for the jury.

Viewed in the light most favorable to Williams, the evidence indicated that Williams did not believe that he could retreat with complete safety. Although after the shooting, Williams did, in fact, back his car up and leave the scene, Williams testified that when Martin was approaching him, he did not think that he could get out of his car and run because he was afraid that Martin would shoot him in the back, and he testified that he did not think that he could back up his car and leave the scene, as he did after the shooting, because he was afraid that Martin would shoot him through the window of his car. Based on this testimony, the jury could have concluded that Williams could not, or that it reasonably appeared that he could not, retreat with complete safety, i.e., without increasing or apparently increasing his peril.

Because there was evidence presented to support Williams’s claim that he acted in self-defense, this issue should have been submitted to the jury so that the jury could make the determination, based upon all the evidence presented at trial, whether Williams acted in self-defense. Therefore, the trial court erred in denying Williams’s request for a jury instruction on self-defense.

Moreover, we cannot say that the error was harmless. The jury was charged on murder as alleged in the indictment and on provocation manslaughter as a lesser-included offense of murder. The jury deliberated for over eight hours before reaching its verdict and finding Williams guilty of the lesser of the charges submitted to it for consideration- — manslaughter. During its deliberations, the jury asked three questions, including the following: “May we please have the exact legal definition of self-defense?” (C.Supp.4.) The State is correct in its assertion that

“merely because the jury asked the court what the definition of self defense was, Suppl. R. at 4, does not mean [that] the trial court erred by not charging the jury on self defense because a layman’s understanding, of self defense is probably different from the legal requirements justifying a jury charge on self defense.”

(State’s brief at pp. 18-19.) However, the jury’s question does indicate that it may have credited Williams’s testimony regarding the circumstances of the crime and his claim of self-defense. After thoroughly reviewing the record in this case, we are convinced that the failure to charge the jury on self-defense, when that charge was supported by evidence presented at trial, was not harmless.

Based on the foregoing, the judgment of the trial court is reversed and this cause remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.

      . Although Williams testified at trial that the incident occurred on Monday, September 30, 2002, and that he filed the complaint on Wednesday, October 2, 2002, the complaint contained in the record indicates that it was executed on October 3, 2002, and it states that the incident occurred on October 1, 2002 (C. 98-100.)

      . In his testimony, Williams refers to this store as "the Crown.” (R. 235.)


author: McMILLAN, COBB, Judge,

text:
    Eddie Duval POWELL III v. STATE.
    CR-03-1923.
    Court of Criminal Appeals of Aabama.
    June 24, 2005.
    Rehearing Denied Aug. 5, 2005.
    Certiorari Quashed Feb. 17, 2006 Alabama Supreme Court 1041730.

      Leslie Susanne Smith, Montgomery, for appellant.
    Troy King, atty. gen., and Anne C. Adams, asst. atty. gen., for appellee.
   McMILLAN,

Presiding Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

WISE, J., concurs.

SHAW, J., concurs in the result.

COBB, J., concurs in part and dissents in part, with opinion.

BASCHAB, J., recuses herself.

COBB, Judge,

concurring in part and dissenting in part.

In an unpublished memorandum, the majority affirms the summary dismissal of the Rule 32, Ala. R.Crim. P., petition and subsequent amendments filed by Eddie Duval Powell III. I concur with the analysis in parts I, H.A., and III of the memorandum. I dissent from part II.B. of the memorandum to the extent it holds that Powell could not establish the prejudice prong of any claim of ineffective assistance of counsel, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), if the underlying substantive issue had been rejected by this Court on direct appeal following review for plain error. As I have previously stated, “I do not believe that Alabama law or the broader principles of due process allow for the preclusion of a finding of prejudice with regard to an ineffective-assistance-of-counsel claim simply because this Court or the Alabama Supreme Court examined the underlying substantive issue and found no plain error.” Taylor v. State, [Ms. CR-02-0706, Aug. 27, 2004] — So.2d -, -(Ala.Crim.App.2004)(Cobb, J., concurring in part and dissenting in part). See Woods v. State, [Ms. CR-02-1959, Aug. 27, 2004] — So.2d - (Ala.Crim.App.2004)(Cobb, J., dissenting); Harris v. State, [Ms. CR-01-1748, Oct. 29, 2004] — So.2d - (Ala.Crim.App.2004)(Cobb, J., concurring in part and dissenting in part). This important issue remains to be resolved by the Alabama Supreme Court, which has stated, “Nor do we address whether our determination of the absence of plain error forecloses a determination of the existence of the prejudice required under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for a claim of ineffective assistance of counsel. See Taylor v. State, [Ms. CR-02-0706, Aug. 27, 2004] - So.2d - (Ala.Crim.App.2004).” Ex parte Martin, 931 So.2d 759, 769 (Ala.2004).

For the foregoing reasons, I dissent from part II.B. of the memorandum.