William Darby v. State of Alabama

Rel: March 24, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter.
Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts, 300 Dexter Avenue,
Montgomery, Alabama 36104-3741 ((334) 229-0649), of any typographical or other errors, in order that corrections
may be made before the opinion is published in Southern Reporter.

Alabama Court of Criminal Appeals
OCTOBER TERM, 2022-2023
_________________________

CR-20-0919
_________________________

William Darby

v.

State of Alabama

Appeal from Madison Circuit Court
(CC-18-3238)

McCOOL, Judge.

This appeal arises from an incident in which Jeffrey Parker was

shot and killed by William Darby, a Huntsville police officer who was on

duty at the time of the shooting. Darby was subsequently convicted of
CR-20-0919

murder, a violation of § 13A-6-2, Ala. Code 1975, and was sentenced to

25 years' imprisonment.

Facts

On April 3, 2018, Parker telephoned emergency 911 from his

residence and "threaten[ed] to … blow his head off" (R. 595), so Officers

Genisha Pegues and Justin Beckles of the Huntsville Police Department

("HPD") were dispatched to Parker's residence. When they arrived,

Officer Pegues drew her handgun and stepped over the threshold of the

front door such that "the left side of [her] body was partially in the door

… and … the right side was out towards the porch area." (R. 605.) While

standing partially inside the residence, Officer Pegues saw Parker sitting

on a couch with "what look[ed] like a weapon to his head." (R. 601.)

Officer Beckles was on the porch behind Officer Pegues and could not see

Parker, but Officer Pegues told him that Parker had "a gun to his head,"

and Officer Beckles "radioed that to dispatch" so that other officers who

might be responding to the residence would "know that there [was] a gun

in play." (R. 651.) Darby was on duty at that time and was "pretty close"

to Parker's residence, so when he "heard Officer Beckles come over the

radio" and mention "a guy with a gun … threatening suicide," he began

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driving toward the residence to provide assistance. (R. 900.) It would

later be determined that Parker was actually holding "a flare gun that

had been intentionally painted black" (R. 705), but there is no evidence

indicating that any of the officers were aware of that fact.

Meanwhile, Officer Pegues was still standing partially inside

Parker's residence and was talking with Parker in an attempt to prevent

him from committing suicide, and, although she had drawn her handgun,

the gun was "muzzle down" (R. 606), Parker was "calm" (R. 612), and she

believed the situation was "de-escalating." (R. 634.) During that time,

Darby arrived on the scene armed with a shotgun and, as he approached

the residence, saw that Officer Pegues's handgun was not raised,

prompting him to command her to "point [her] fucking gun at [Parker]"

(R. 606) because Parker "could kill [her]." (R. 611.) According to Officer

Pegues, Parker heard Darby yelling from outside the residence and, in

response, said, "I don't want to hurt anybody," or "something to that

effect" (R. 611); however, neither Officer Beckles nor Darby heard that

statement. When Officer Pegues heard Darby command her to raise her

handgun, she moved forward so that she was "full body in the home" and

raised her handgun but almost immediately lowered it again. (R. 608.)

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At that point, Darby and Officer Beckles entered the residence and began

demanding that Parker put his weapon down, which was still pointed at

his own head. Officer Pegues testified that she "could feel the tension

just rising" (R. 612) when Darby entered the residence, so she began to

plead with Parker to put his weapon down. However, despite the officers'

commands and pleas, it was undisputed that Parker "[n]ever move[d]

[the weapon] from his head" (R. 614), and, seconds after entering the

residence, Darby shot and killed Parker while Parker was still seated on

the couch. When asked if she had felt threatened by Parker, Officer

Pegues testified that Parker "did not threaten [her]" (R. 613) or behave

"in a threatening manner" (R. 614), that he did not "do anything to make

[her] believe he wanted to do anything other than commit suicide" (id.),

and that she "didn't think [he] was an imminent threat … to … anyone

… but himself." (R. 628.)

Officer Beckles's testimony was consistent with Officer Pegues's

testimony. According to Officer Beckles, although Parker refused to put

his weapon down, he did not "show any hostility" or "aggression" toward

the officers (R. 661), "didn't make any overt action to" indicate that he

"was about to point [his weapon] at [the officers]" (R. 658), and appeared

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to have the intent to harm only himself. (R. 661-62.) In fact, Officer

Beckles testified that he "definitely thought … things were going in a

direction [they] needed … to go" before Darby arrived. (R. 659.) Officer

Beckles did testify that, if Parker had continued to refuse to put his

weapon down, at some point the officers "were probably going to have to

end up … terminating that threat." (R. 660.) However, Officer Beckles

testified that "at [no] time during this event did [he] feel the need to take

deadly force action." (Id.)

On cross-examination, Officer Beckles testified as follows:

"Q. … Now, would you say this individual holding a gun
inside that house, he obviously had it in his hand
regardless of where it was pointed, presented an
imminent threat to you three officers?

"A. Yeah, anybody with a gun, yeah.

"Q. Okay. Does a person have to point that gun at a police
officer to be an imminent threat?

"A. No, just due to the … slower reaction time we're going
to have, no, they don't have to actually point it at us to
become – to be a threat to us.

"Q. Okay. And he wouldn't have to move in any particular
way to become a threat, would he?

"A. I would prefer it, but I don't think – nothing in the law
that I've read says that they have to point it or make –
take the first shot.

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"Q. Okay. And what about the protocol for the HPD and the
procedures in place for this kind of a call; does a person
have to move or point their gun at an officer before an
officer can take action … and stop it?

"A. No.

"Q. Okay. How many times did you officers, all three of you,
tell this person to put the gun down?

"A. I think I told him two or three times, I think Officer
Pegues told him once or twice, and I think Officer Darby
told him twice.

"Q. Okay. So about seven times?

"A. Yes, sir.

"Q. Okay. And he did not comply?

"A. No."

(R. 673-75.)

On re-direct examination, Officer Beckles clarified that he believed

Parker posed a potential threat to the officers but did not believe they

were faced with the imminent use of deadly force that required them to

use their own deadly force. According to Officer Beckles, a police officer

is not authorized to use deadly force simply because a person "has a gun

to [his own] head and [does not] comply" with a command to put the gun

down. (R. 678.) Rather, Officer Beckles testified that, pursuant to the

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HPD's standard operating procedures, the use of deadly force must be in

response to a threat of death or serious physical injury that is

"immediate, certain, and unequivocal," and, according to Officer Beckles,

Parker's actions did not rise to that level. (R. 682.)

Det. Joshua Vogel of the HPD conducted the investigation of

Parker's death and, as part of his investigation, interviewed Officer

Pegues, Officer Beckles, and Darby; it appears that Det. Vogel also

viewed the audiovisual recordings taken from the officers' body cameras.

Det. Vogel testified that he did not "find any evidence of any kind that

Parker ever did anything aggressive" or "ever made a hostile

determination towards anybody other than himself." (R. 719.) On cross-

examination, Det. Vogel conceded that "[a]n armed subject is always a

danger to [a police] officer" (id.); however, consistent with Officer

Beckles's testimony, he testified that, pursuant to HPD "policies and

procedures," there is no "imminent danger" to the officer unless there is

"an action by that individual" that is "unquestionable" (R. 721 (emphasis

added)), and, according to Det. Vogel, Parker's refusal to put his weapon

down did not rise to that level.

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Darby testified in his defense and explained the reasoning behind

his decision to shoot Parker:

"Q. All right. What happened …?

"A. I'm third man on the scene. I've got Officer Beckles right
in front of me and I've got Officer Pegues inside the
residence where we know we have a man with a gun.
So, my mind is racing and I'm trying to get as much
information about this situation as possible and trying
to take it in. I move closer to where I can try to pick up
on what Officer Pegues is doing; it seems like she is
having some type of verbal exchange but she's not
protecting herself.

"Q. How is she not protecting herself?

"A. Her body language, where she was standing, it was like
she was talking to someone and had eye contact with
someone to where they – she could see them and they
could clearly see her, and we know he has a gun and we
know it's in his hand because she said he had it to his
head. What made me think she wasn't protecting
herself is, number one, it looks like you have eye contact
with him, so that means he can see you, your body
language as you're talking to him. And on top of that,
she's not pointing a weapon at him. She's holding her
weapon in her right hand pointed at the ground, which
is not what we're trained to do. And that caused a lot of
fear for me. The fear that I was about to watch
something very bad happen to one of my officers that I
work with, as in she was going to be shot because she
wasn't protecting herself and she could see a subject
that we know to be armed.

"Q. Did she appear to be standing in the fatal funnel?

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"A. Yes, sir, right in the middle of it, which is the doorway.

"Q. All right. What happened next?

"A. Well, I see this so I give her a verbal command, 'Point
your gun at him,' and I said it loudly. I said it to be
heard. And you have to raise your voice to cut through
the intensity of that situation. I yelled loud enough to
where she could hear me through the intensity of this
situation and the radio going on and who knows what
was going through her mind: 'Point your gun at him. He
can shoot you.' And she listened to me for a second,
because she knew and she raised her gun. But it was –
it was for less than a whole second. And I couldn't
believe it. I saw her raise her gun and then she put it
down and she's in the house and she puts her hand up
in front of her and she says, 'No, he's right here in front
of me.' So right now my fear is through the roof. I have
an officer standing in the fatal funnel that is not
protecting herself, that has admitted he's right here in
front of [her], and she has her hand out. And she put
her gun back against herself, pointed at the ground.

"Q. Is this hand signal that you saw, is that – is there
training for that? Is that part of the procedure, to put
your hand up?

"A. No, sir. To me it just seemed like she was losing control
of the situation. To me, it never seemed like she had
control of the situation and this was just getting worse.

"Q. All right. What did you do next and what happened
next?

"A. I remember saying, 'Point your gun at him; he can shoot
you.' And I gave her time, because I wanted to believe
that her and Officer Beckles … in front of me, something
would change. And I'm standing there and I'm looking

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at them and I'm processing what is happening, what's
about to happen, what do I know from my training and
experience, what do I actually have right here. And I
waited for a second or two and I was hoping that
something would change. She stalled –

"Q. What do you mean she stalled?

"A. So she said, 'He's right here in front of me.' She takes a
big step to the left, further into the house.

"Q. Now are you already up on the stoop with Officer
Beckles at this time?

"A. I'm right behind him.

"Q. All right.

"A. She takes a big step to the left, further into the house,
which appeared to me as in [her] stalling. [Her] verbal
communication has ended and she was ready for me and
Officer Beckles to get in that house to back her up.
Officer Beckles saw that I had a shotgun and he let me
go in front of him. ….

"….

"Q. All right. What happened after that?

"A. I moved into the house. Officer Beckles comes in behind
me. I'm the point man. Officer Pegues is behind me;
Officer Beckles is behind me. We refer to being on line
as everybody being even. We weren't even.

"Q. Now at what point did someone tell this person with the
gun to put the gun down?

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"A. I believe I was the first verbal command and I yelled it
from outside that house. I said, 'Put your gun down,'
because no one else had said it that I knew of.

"Q. Okay. Did anybody put their gun down?

"A. The subject did not put his gun down, no, sir.

"Q. All right. So you've approached the house, you've come
up on the stoop, you've entered the house now with
Officer Pegues and Officer Beckles. Are you all three
now in the fatal funnel?

"A. Yes, sir. We're in the house in clear shot of the subject
with the gun in his hand, with nothing in between us.

"Q. All right. You had no cover?

"A. No, sir.

"Q. And you had no concealment?

"A. No, sir, fully exposed.

"….

"Q. All right. What happened next?

"A. Well, I'm point man now. I've taken the situation
because I was not willing to stand outside and let what
was going to happen, happen. So I'm in the house and
I'm in front, and I pointed my gun at the individual with
a gun in his hand and a finger on the trigger and I gave
him a very loud and distinct verbal command to drop
that gun. He said, 'I'm not going to drop the gun.' I said,
'I am not going to tell you again,' while I'm still pointing
my gun at him. I said, 'I am not going to tell you again.'
And he looked at me dead-pan in the face, eye contact,

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and shrugged his shoulders and shook his head, like he
was calling a bluff, no emotion. That caused so much
fear, I mean it was all the precursors of intent. And after
I said, 'I am not going to tell you again,' and he shrugged
his shoulders and shook his head – when he shrugged
his shoulders the gun moved in an upward position.
Now it never left the vicinity of his head …. But when
he shrugged his shoulders and shook his head after I
told [him], 'I am not going to tell you again,' the last
thing I remember seeing is him shaking his head and
shrugging his shoulders and I … fired one round at the
subject.

"….

"Q. When you approached the stoop, what was your training
telling you to do?

"A. Coach an officer into a better position to defend herself
and when that wasn't working and she didn't listen, my
training was to not just stand by; it's to take an action
and to prevent that from happening. … My training was
to get that person to remove the threat to my life or
anyone else's that it is a threat to.

"Q. Why didn't you reach in and grab [Officer Pegues] by the
arm and pull her back out the door?

"A. That was one of the things that ran through my head
when I turned to the left and as soon as I thought about
that I thought about a negligent discharge. She's
obviously not thinking correctly. If I put my hand on her
that could cause a sympathetic response. She's already
got her hand on her gun; I didn't want to cause her to
accidentally shoot herself or shoot me or if she starts
fighting with me because it's a sympathetic response to
then pull away when someone grabs you; we're both
hung up in the fatal funnel and no one is paying

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attention to the threat, the individual with the gun in
his hand. So getting shot, her accidentally getting shot,
or both of us getting shot by the threat that nobody's
paying attention to didn't seem like the best course of
action.

"Q. All right. Why didn't you tell her back out, back out,
back out?

"A. She wasn't listening to me to keep her gun up. At that
point she wasn't listening to the coaching from outside
to protect herself; I didn't see any point in wasting any
more time. She, at that point, I believed – especially
when she moved to the left so we could go in – I had to
go in; to stand there and to try to coach her any more is
just wasting time. And the time was ticking. And I
thought if I waited any longer she was going to get shot."

(R. 906-25.)

On cross-examination, Darby testified that Parker's refusal to put

his weapon down constituted an imminent threat to the officers' lives. (R.

938.) Darby then testified as follows:

"Q. Simply holding the gun, pointing it at himself was the
imminent threat to your life?

"A. No, … [a]s I've explained before, there's no cover
between myself and the other officers and [Parker]. And
…, under Alabama state law, it is considered an action,
the omission of an act, possession of a gun, not
responding to lawful commands by an officer to drop
your gun, that all goes into being an imminent threat.

"….

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"Q. So he … had done something worthy of death?

"A. In the whole part of this case, he did things that
required deadly force be taken against him.

"….

"Q. And you correct me if I'm wrong here. But the choices
that Parker took, the hostile action that he took that day
was he called 911, he pointed the gun at himself, and he
did not put it down when you told him to. Did I miss
anything?

"….

"A. What he did to forfeit his life that day is he was in
possession of a firearm in the same room with police and
refused to put that gun down seven times. And there
were pre-assault indicators that I reasonably perceived
through my training and experiences and he did not put
down his gun. And on top of that, the last thing I saw
was a dead-panned eye contact, shaking his head no,
told me he wasn't going to put the gun down, and when
he shrugged his shoulders I saw the gun start to move
and I broke the shot. That's what forfeited his life was
him; he decided not to obey one of those seven lawful
commands to remove the imminent threat to our lives.

"Q. I'm going to go back to something because that was the
first time I heard you mention it. What – pre-assault
cues, is that the word you used?

"….

"A. … [P]re-assault indicators.

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"Q. Maybe that was it, pre-assault indicators. … I want you
to specifically tell us the pre-assault indicators that
Parker had.

"….

"A. Extremely calm and defiant in the face of police, with a
gun involved, finger on the trigger to where he could
readily use it, defied seven lawful commands, a behavior
of defiance, abnormal emotional state, the call details,
the way he was acting in that room, thing after thing
just added up to the totality of the circumstances that
showed me his intent. And they add up to where I had
to make the ultimate decision."

(R. 940-53.)

Darby also presented testimony from three other law enforcement

officers who each testified that Parker's refusal to put his weapon down

constituted an imminent threat to the responding officers' lives. Cpt.

Dewayne McCarver of the HPD testified that there is "[a]bsolutely" an

"imminent threat" to a police officer when a person is "holding a firearm

[and] refus[es] to put it down after being told to do so seven times." (R.

840.) Thus, according to Cpt. McCarver, Darby acted in compliance with

his training and "did exactly what he was supposed to do" when he shot

Parker. (R. 856.) Ron Kiker, the assistant police chief at Snead Police

Department, similarly testified that, when a police officer confronts an

armed person, there are "a lot of physiological cues … that would indicate

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that an attack [is] imminent" (R. 815), including the person's refusal to

comply with a command to put the weapon down. (R. 819.) Curtis

Parker, a special agent with the Federal Bureau of Investigation who

teaches an "officer survival course" (R. 877), likewise testified that a

police officer faces an "imminent threat" (R. 890) when "a person with a

gun … is noncompliant with orders to drop the gun." (R. 889.) In

addition, Darby presented extensive evidence regarding the training a

police officer receives with respect to confrontations with an armed

person and the difficulties involved in safely navigating such

confrontations.

Discussion

On appeal, Darby argues that the trial court erred by refusing to

give three of his requested jury instructions; he also argues that the trial

court violated his right to a public trial and that the jury's verdict was

against the great weight of the evidence. We conclude that the trial

court's refusal to give one of the requested instructions was reversible

error, and we remand the case for a new trial on that basis. Because we

reverse on that basis, we pretermit discussion of the other issues Darby

has raised.

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" ' "A trial court has broad discretion in formulating its
jury instructions, provided they are an accurate reflection of
the law and facts of the case." ' Toles v. State, 854 So. 2d 1171,
1175 (Ala. Crim. App. 2002), quoting Coon v. State, 494 So. 2d
184, 186 (Ala. Crim. App. 1986).

" 'A trial court's refusal to give a defendant's
requested jury instruction "constitutes reversible
error only if such instruction (1) was correct, (2)
was not substantially covered by the [trial] court's
charge, and (3) concerned a point in the trial which
was so important that the failure to give the
instruction seriously impaired the defendant's
ability to defend himself." Dill v. State, 600 So. 2d
343, 353-54 (Ala. Crim. App. 1991), aff'd, 600 So.
2d 372 (Ala. 1992), cert. denied, 507 U.S. 924, 113
S. Ct. 1293, 122 L. Ed. 2d 684 (1993).'

"Ex parte R.D.W., 773 So. 2d 426, 429 (Ala. 2000)."

Johnson v. State, 168 So. 3d 163, 167 (Ala. Crim. App. 2014).

According to Darby, the trial court erred by refusing to give his

requested instruction no. 35, which stated:

"The reasonableness of an officer's actions in using
deadly force must be objectively reasonable judged from the
perspective of a reasonable officer on the scene, the fact that
officers are forced to make split-second decisions, and in light
of the facts and circumstances confronting them at the time."

(C. 211.) Darby argues that the "legal foundation" (Darby's brief, p. 50)

for this instruction is § 13A-3-27(b)(2), Ala. Code 1975, which states: "A

peace officer is justified in using deadly physical force upon another

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person when and to the extent he reasonably believes it 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."

According to Darby, that statute "frames law enforcement use of force

through the lens of a reasonable officer" and not "[a]n everyday layperson

[who] simply isn't similarly situated to a trained law enforcement officer."

(Darby's brief, p. 51.) Thus, Darby argues, the trial court should have

instructed the jury that, in determining whether his use of deadly force

was reasonable, it was to evaluate his actions from the perspective of a

reasonable police officer in the same situation. 1

1In its brief to this Court, the State argues that, "while Darby
currently asserts that … § 13A-3-27 … serves as a foundation for
[requested] instruction [no.] 35, he did not present that argument to the
trial court. He cannot now place the trial court in error on grounds not
first presented to it." (State's brief, p. 60.)

It is true that Darby did not cite § 13A-3-27(b)(2) in arguing for
requested instruction no. 35 at trial; instead, he cited the United States
Supreme Court's decision in Graham v. Connor, 490 U.S. 386 (1989) – a
case that is not controlling given that it involved a civil action brought
under 42 U.S.C. § 1983. See People v. Perry, 36 Cal. App. 5th 444, 465,
248 Cal. Rptr. 3d 522, 536 n.10 (2019) ("Perry contends throughout his
briefing that we are bound to apply the standards articulated in Graham
in this case. Graham was a civil rights action brought pursuant to section
1983 of title 42 of the United States Code and it involved an alleged
violation of the Fourth Amendment. Long-standing and deeply held
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As a threshold matter, we note that neither the parties nor the trial

court appears to have recognized at trial that Darby's use of deadly force

was governed by § 13A-3-27(b)(2). We also note that there is a pattern

jury instruction that tracks the language of § 13A-3-27(b)(2), and "[t]he

appellate courts of this state endorse the use of the Alabama Pattern Jury

Instructions in criminal cases." Ex parte McGriff, 908 So. 2d 1024, 1033

(Ala. Crim. App. 2004). However, Darby not only failed to request that

principles of federalism counsel that we have no obligation to import
those standards into our state law defining criminal offenses.").

However, in Ex parte Jenkins, 26 So. 3d 464 (Ala. 2009), the
Alabama Supreme Court explained that the preservation rule "generally
prevents an appellant from raising on appeal a question or theory "that
was not raised at trial but does not prevent an appellant from citing "an
additional specific reason or authority for a theory or position asserted
by the party in the lower court." Ex parte Jenkins, 26 So. 3d at 473 n.7.
See also Ex parte Knox, 201 So. 3d 1213, 1217 (Ala. 2015) (noting that,
pursuant to Ex parte Jenkins, an appellant may "provide additional
precise reasons and authorities [on appeal] in support of a theory or
position properly raised below" (emphasis added; emphasis omitted)).

Here, Darby clearly raised below the "question or theory," Ex parte
Jenkins, 26 So. 3d at 473 n.7 (emphasis omitted), he has raised on appeal,
i.e., that the trial court should have instructed the jury to evaluate his
use of deadly force from the perspective of a reasonable police officer in
the same situation. Thus, Darby's failure at trial to raise § 13A-3-27(b)(2)
as authority for requested instruction no. 35, while perhaps unwise, does
not preclude him from raising that statute as authority for the
instruction on appeal.
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pattern instruction, he never even mentioned § 13A-3-27(b)(2) to the trial

court, and, thus, we would not hold the trial court in error for failing to

give that instruction even if Darby had asked us to do so, which he has

not done. Shouldis v. State, 953 So. 2d 1275, 1282 (Ala. Crim. App. 2006).

We do, however, note that, had Darby asked the trial court to give the

pattern instruction based on § 13A-3-27(b)(2), he would have been

entitled to that instruction because that instruction is typically required

in cases involving a defendant police officer who claims to have used

deadly force in self-defense or defense of another while acting in his

capacity as a police officer.

We turn, then, to a review of the instruction that Darby actually

requested, which went beyond the four corners of both § 13A-3-27(b)(2)

and Alabama's general self-defense statute, codified at § 13A-3-23, Ala.

Code 1975, which served as the basis for the self-defense instruction that

the trial court gave in this case. In essence, requested instruction no. 35

would have explained that, in determining whether Darby's use of deadly

force was reasonable, the jury must evaluate his actions from the

perspective of a reasonable police officer in the same situation. According

to Darby, that instruction was required because, he says, it is a correct

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statement of law and it was critical to his defense, which was that a

reasonable police officer in the same situation would have perceived,

based on the officer's training, that Parker's conduct represented the

imminent use of deadly force.

In any self-defense or defense-of-another case, whether the

defendant is a police officer or not, the jury must evaluate the defendant's

use of force from the perspective of " 'a reasonable person under like

circumstances.' " State v. Neel, 57 So. 3d 186, 192 (Ala. Crim. App. 2010)

(quoting King v. State, 478 So. 2d 318, 321 (Ala. Crim. App. 1985)). In

other words, in any case involving a claim of self-defense or defense of

another, " ' "a jury must consider what 'would appear to be necessary to a

reasonable person in a similar situation and with similar knowledge.' " ' "

Harrington v. State, 858 So. 2d 278, 298 (Ala. Crim. App. 2002) (quoting

People v. Jaspar, 119 Cal. Rptr. 470, 476, 98 Cal. App. 4th 99, 108 (2002),

quoting in turn People v. Humphrey, 13 Cal. 4th 1073, 1083, 56 Cal. Rptr.

2d 142, 148 (1996)). And, in most such cases, a general instruction to

that effect will suffice.

However, by enacting § 13A-3-27(b)(2), which applies only to peace

officers, the Alabama Legislature has made clear that there is a unique

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standard to be used in judging a police officer's use of deadly force in self-

defense or defense of another while acting in his capacity as a police

officer. Thus, the proper perspective from which to evaluate a police

officer's use of deadly force in such situations is indeed that of a

reasonable police officer in the same situation, as Darby argues. 2 And it

is well settled that " ' "[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." ' " Johnson v. State, 168 So.

3d 163, 167 (Ala. Crim. App. 2014) (quoting Harbin v. State, 14 So. 3d

898, 909 (Ala. Crim. App. 2008), quoting in turn Ex parte Chavers, 361

So. 2d 1106, 1107 (Ala. 1978)).

We thus hold that, in cases where there is evidence to support a

defendant police officer's claim that he used deadly force in self-defense

or defense of another while acting in his capacity as a police officer, the

trial court should instruct the jury to evaluate the defendant's actions

2We acknowledge the State's argument that whether there should
be "unique standards for [a police officer's] use of deadly force … in …
self-defense" is a "policy decision … for the Alabama Legislature, not the
appellate courts." (State's brief, pp. 60-61.) But the legislature has
provided a unique standard for police officers by enacting § 13A-3-
27(b)(2).
22
CR-20-0919

from the perspective of a reasonable police officer in the same situation.

See State v. Smith, 73 Conn. App. 173, 205, 807 A.2d 500, 519 (2002)

(holding that, pursuant to a Connecticut statute that is similar to § 13A-

3-27(b)(2), "the reasonableness [of a police officer's use of deadly force] is

to be judged from the perspective of a reasonable police officer" and that

the jury should have been instructed accordingly). See also State v.

Pagotto, 361 Md. 528, 549, 762 A.2d 97, 108 (2000) ("A defendant's

conduct is typically measured against the conduct of an ordinarily

prudent citizen similarly situated. Where the accused is a police officer,

however, the reasonableness of the conduct must be evaluated not from

the perspective of a reasonable civilian but rather from the perspective

of a reasonable police officer similarly situated." (citations omitted)); and

State v. White, 988 N.E.2d 595, 617 (Ohio Ct. App. 2013) ("In assessing

the [police] officer's decision to use force, including deadly force, … [t]he

required perspective is that of the 'reasonable officer on the scene,'

standing in the defendant-officer's shoes, perceiving what he then

perceived and acting within the limits of his knowledge or information as

it then existed." (emphasis omitted)).

23
CR-20-0919

That is not to say that the trial court was required to give the

precise instruction that Darby requested. As we have already noted, "[a]

trial court has broad discretion in formulating its jury instructions,

provided they are an accurate reflection of the law and facts of the case."

Johnson, 168 So. 3d at 167 (citations omitted). Thus, "[a]s long as the

[trial court's] instructions accurately state the law, the court is not

required to use specific language suggested by defense counsel." United

States v. Griggs, 54 F.4th 531, 536-37 (8th Cir. 2022). In this case,

however, the trial court did not provide any instruction that we can say

"substantially covered" the essence of requested instruction no. 35, which

was generally a correct statement of law. Johnson, 168 So. 3d at 167

(citations omitted). The closest the trial court came to such an instruction

was when the court explained that, for Darby's use of deadly force to be

justified, he had to reasonably believe that he was faced with the

imminent use of deadly force, at which point the court gave the following

instruction:

"Actual imminent peril means that the circumstances
and conditions perceived by the accused at the time he did the
homicidal act were such as what a reasonably impressed or
reasonable person that the accused was in danger of
immediately being killed or seriously harmed in body by the

24
CR-20-0919

deceased and that the accused honestly believed himself to be
in such danger though, in truth, he was not in danger."

(R. 1089.) However, that instruction is somewhat unclear on its face,

and, " 'evaluat[ing] [the] instructions like a reasonable juror may have

interpreted them,' " Capote v. State, 323 So. 3d 104, 140 (Ala. Crim. App.

2020) (quoting Ingram v. State, 779 So. 2d 1225, 1258 (Ala. Crim. App.

1999)), we cannot say that the jury would have understood from that

instruction that it was required to evaluate Darby's use of deadly force

from the perspective of a reasonable police officer in the same situation.

Thus, although the trial court was not required to use the precise

language in Darby's requested instruction, the court erred by refusing to

instruct the jury, in some fashion, that it must evaluate Darby's use of

deadly force from the perspective of a reasonable police officer in the same

situation.

Our holding that the trial court's jury instructions were faulty does

not conclude our analysis, however, because it is well settled that " 'faulty

jury instructions are subject to harmless error review.' " Bohannon v.

State, 222 So. 3d 457, 510 (Ala. Crim. App. 2015) (quoting State v.

Williams, 364 Wis. 2d 126, 148, 867 N.W.2d 736, 746 (2015)). In order to

determine that an error in jury instructions was harmless, this Court

25
CR-20-0919

considers the totality of the circumstances and must be able to conclude

beyond a reasonable doubt that the jury's verdict would have been the

same even if the omitted instruction had been given. Sharifi v. State, 993

So. 2d 907, 943-44 (Ala. Crim. App. 2008); Simmons v. State, 797 So. 2d

1134, 1173 (Ala. Crim. App. 1999).

In this case, Darby presented extensive testimony from multiple

witnesses regarding the training a police officer receives with respect to

confrontations with an armed person. We need not set forth that

extensive testimony here; suffice it to say that the testimony supported a

finding that a reasonable police officer in Darby's situation could have

concluded that Parker's conduct represented the imminent use of deadly

force. In other words, that testimony supported a finding that Darby

acted in self-defense or defense of another when he shot Parker. § 13A-

3-27(b)(2).

Of course, the jury was not required to accept that testimony as

conclusive, and it is possible that the jury simply did not find the

testimony persuasive. Rather, the jury may have found more persuasive

the testimony of Officer Pegues, Officer Beckles, and Det. Vogel, who each

testified that, from their perspective, Parker's conduct did not represent

26
CR-20-0919

the imminent use of deadly force. If so, the jury's verdict was based upon

its consideration of all the testimony after evaluating the credibility of

the witnesses and assigning weight to the evidence as it deemed

appropriate, and it would therefore be improper for this Court to overturn

the verdict on appeal. See Jones v. State, 915 So. 2d 78, 85 (Ala. Crim.

App. 2005) ("We will not second-guess the jury's determinations

regarding the credibility of the witnesses and the weight of the

evidence.").

However, it is equally possible that the jury did not base its verdict

upon its careful consideration and weighing of the testimony and

evidence but, rather, upon a faulty understanding of its duty to view that

testimony and evidence from the proper perspective. In other words,

rather than fulfilling its duty to consider and evaluate all the evidence

and reaching a conclusion of fact, the jury may have reached an erroneous

conclusion of law and determined that the evidence regarding a police

officer's training was simply not relevant and should be disregarded

because it was not instructed to evaluate Darby's use of deadly force from

the perspective of a reasonable police officer. In fact, we note that the

State made a point of arguing to the jury that "[police] training is not the

27
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law" (R. 1023) – that is, that the jury should disregard that evidence

because the law required the jury to ignore it.

Because the testimony regarding a police officer's training

supported a finding that Darby acted in self-defense or defense of

another, the omission of a jury instruction regarding the proper

perspective from which to evaluate such evidence raises legitimate

questions as to whether the jury's verdict was affected by its omission.

We recognize that juries are presumed to apply a " 'commonsense

understanding of the instructions in the light of all that has taken place

at the trial.' " Callen v. State, 284 So. 3d 177, 225 (Ala. Crim. App. 2017)

(quoting Boyde v. California, 494 U.S. 370, 381 (1990)). We also recognize

that the trial court instructed the jury that Darby's actions had to be

objectively reasonable and that the jury's reasonableness determination

had to be based on "the circumstances and conditions perceived by the

accused," whom the jury clearly knew was a police officer. Thus, given

the extensive testimony Darby presented regarding a police officer's

training, it is quite possible that the jury evaluated his use of deadly force

from the perspective of a reasonable police officer in the same situation,

even without a clear and explicit instruction to that effect, and simply did

28
CR-20-0919

not find that testimony to be persuasive. It is also possible that the jury

dismissed that testimony as irrelevant because it was not instructed to

evaluate the evidence from the proper perspective.

In the midst of these possibilities, however, the law is certain: this

Court does not deal in "possibilities" when it comes to a harmless-error

analysis regarding the erroneous refusal to give a requested jury

instruction that is a correct statement of law. If we cannot conclude

beyond a reasonable doubt that the jury evaluated Darby's use of deadly

force from the proper perspective, then we cannot conclude that the trial

court committed harmless error by refusing to give requested instruction

no. 35 or some similarly worded instruction. As the New Mexico Court of

Appeals has observed:

"In such close circumstances, where the error involves the
central issue in the case, it is the better policy to require a new
trial under the correct instruction. Requiring a new trial
obviates any need or opportunity for us to speculate as to how
the jury might have resolved – or will resolve – the case under
the correct instruction."

State v. Mantelli, 131 N.M. 692, 702, 42 P.3d 272, 282 (2002).

We agree with the reasoning of the New Mexico Court of Appeals in

Mantelli. Accordingly, we reverse Darby's conviction and remand the

case for a new trial.

29
CR-20-0919

REVERSED AND REMANDED.

Windom, P.J., and Kellum and Minor, JJ., concur. McCool, J.,

concurs specially, with opinion. Cole, J., concurs in the result.

30
CR-20-0919

McCOOL, Judge, concurring specially.

I authored the main opinion and thus concur fully in the Court's

decision to reverse William Darby's conviction and remand for a new

trial. Because the Court holds that Darby is entitled to a new trial based

on the trial court's refusal to instruct the jury that it must evaluate his

use of deadly force from the perspective of a reasonable police officer in

the same situation, it is unnecessary for us to address Darby's remaining

claims. Those claims include a claim that the trial court violated Darby's

right to a public trial and a claim that the court erred by refusing to give

two other jury instructions that he requested. I write specially to address

those issues because I believe it is important to explain why Darby was

not entitled to relief on those claims.

I. Darby's Right to a Public Trial

In response to the COVID-19 pandemic, the trial court closed the

courtroom to the public during Darby's trial. However, to ensure that the

trial remained accessible to the public, the court provided "remote

viewing" by broadcasting the trial to another room in the courthouse. (C.

415.) Darby did not object to conducting the trial in that manner, but, in

his motion for a new trial, he raised the following claim:

31
CR-20-0919

"The trial court erred by confining spectators to a video
viewing room to watch the trial by video but turning off the
video feed each time there was an objection, argument, or
controversial issue raised thus violating [Darby's] right to a
public trial.

"This issue was not known to [Darby] until the
conclusion of the trial. Therefore, no objection could be raised
at the time."

(C. 278.) In support of that claim, Darby submitted an affidavit from

Sydney Martin, which states:

"1. On May 4, 5, and 6, 2021, I observed the majority of
[Darby's] trial as an assigned duty of my job for the City
of Huntsville. I watched the trial by livestream video in
the Madison County Courthouse in a viewing room set
up by the court. I was not permitted to sit inside the
courtroom. The trial was shown on a computer screen.
It is my understanding that the video feed was
controlled by [the judge] from the bench.

"2. On May 4, 2021, during Det. Vogel's testimony, parts of
the court video feed were inaudible and could not be
heard. Det. Vogel was shown a video recording from his
interview with Darby, taken in the days following the
incident. Answers to some of the questions were
inaudible to those listening to the court video feed.

"3. On May 4, 2021, the court video feed was turned off after
Det. Vogel's testimony when the State rested. Before it
was turned off, I heard [the judge] say the attorneys
would discuss the remaining witnesses and jury
charges. The court video feed never resumed, and it
wasn't clear what happened in the courtroom.

32
CR-20-0919

"4. On May 5, 2021, Cpt. McCarver testified. Following his
testimony, police officer Jason Moore was called to the
stand. However, a break was called before Officer Moore
testified. It was unclear whether there were any
objections. After the lunch break, Officer Moore did not
return to the stand, and it was unclear why he didn't
testify.

"5. On May 5, 2021, … a man was called to the witness
stand. The court video feed in the viewing room
indicated David Fail would testify. One of the defense
attorneys asked Fail a question about several
conversations he had with Parker. The prosecution
objected. The judge turned off the court video feed
during the objection and it was unclear what happened.
When the court video feed resumed, a different witness
was on the stand testifying. It wasn't clear who the man
was or what he had previously said before being
released. The court video feed only showed the final few
questions to the witness, which pertained to Parker's
tattoos.

"6. On May 6, 2021, [the State's] closing argument was hard
to hear. Parts of [defense counsel's] closing argument
were also inaudible."

(C. 282-83.) The trial court denied Darby's motion for a new trial, without

stating its reasons for doing so.

On appeal, Darby concedes that "sequestration of the spectators in

a separate viewing room with livestream video and audio" was "not

problematic" and "allowed the trial to remain a public proceeding."

(Darby's brief, p. 22.) Darby argues, however, that, when the trial court

33
CR-20-0919

"turned off the livestream video and audio of the trial at various times,"

it excluded the public from "key segments of the trial proceedings" and,

in doing so, violated his right to a public trial. (Id.) Darby does not point

to any instances in which the trial court "turned off the livestream video

and audio," other than those instances set forth in Martin's affidavit.

Thus, I presume those were the only instances in which the public was

excluded from Darby's trial. 3

Both the United States Constitution and the Alabama Constitution

guarantee a criminal defendant the right to a public trial. See U.S.

Const., Amend VI. ("In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial."); and Ala. Const., Art. I, § 6

(providing that, "in all criminal prosecutions, the accused has a right to

… a speedy, public trial"). This right "serves important interests,"

Gaston v. State, 265 So. 3d 387, 432 (Ala. Crim. App. 2018), not the least

of which is ensuring, "for the benefit of the accused[,] that the public may

see he is fairly dealt with and not unjustly condemned," Waller v.

3Darby does point to another document he submitted with his
motion for a new trial, which was a copy of social-media messages
indicating that the trial court had "turned off the [audiovisual] feed"
during part of the trial. (C. 284.) However, those messages refer to one
of the same instances discussed in Martin's affidavit.
34
CR-20-0919

Georgia, 467 U.S. 39, 46 (1984) (citations omitted), i.e., "that the

procedures employed are fair." Rovinsky v. McKaskle, 722 F.2d 197, 202

(5th Cir. 1984). A public trial also "ensures that the judge, prosecutor,

and jury carry out their duties responsibly, encourages witnesses to come

forward, and discourages perjury," Ex parte Easterwood, 980 So. 2d 367,

372 (2007) (citing Waller, supra), and it "let[s] the citizenry weigh [the

defendant's] guilt or innocence for itself, whatever the jury verdict."

Rovinsky, 722 F.2d at 201-02. In short, a public trial "has always been

recognized as a safeguard against any attempt to employ our courts as

instruments of persecution." In re Oliver, 333 U.S. 257, 270 (1948). See

also Weaver v. Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1910

(2017) (noting that a public trial "protect[s] the defendant against unjust

conviction").

However, even with these important interests at stake, the right to

a public trial is not absolute, and, thus, not every courtroom closure will

violate that right. Gaston, 265 So. 3d at 432. Some closures may be

justified by competing interests, Waller, 467 U.S. at 45, and some

closures may occur during a part of the proceedings to which the public-

trial right does not attach at all. See United States v. Edwards, 303 F.3d

35
CR-20-0919

606, 616 (5th Cir. 2002) (recognizing that the right to a public trial does

not attach to every part of a trial); United States v. Ivester, 316 F.3d 955,

959 (9th Cir. 2003) ("Though some courts and treatises boldly declare

that the Sixth Amendment right to a public trial applies to the entire

trial, this position has been rejected by recent decisions which

demonstrate that the right to a public trial does not extend to every

moment of trial." (internal citations omitted)); State v. Love, 183 Wash.

2d 598, 605, 354 P.3d 841, 844 (2015) (noting that the first step in

addressing a public-trial claim is to "ask if the public trial right attaches

to the proceeding at issue"); State v. Smith, 876 N.W.2d 310, 329 (Minn.

2016) (noting that some "nonpublic proceedings simply may not implicate

the Sixth Amendment right to a public trial, depending on the nature of

the proceeding"); and State v. Reed, 302 Kan. 227, 239, 352 P.3d 530, 540

(2015) (noting that "this case ultimately turns on whether [the

defendant's] Sixth Amendment right to a public trial attached to the

[proceeding in] question" and holding that it did not).

In addition, some courtroom closures, even if unjustified, may be so

trivial that they do not amount to a constitutional violation. As the

United States Court of Appeals for the Third Circuit has explained:

36
CR-20-0919

"An unjustified courtroom closure only infringes a defendant's
Sixth Amendment rights if it undermines the values the
Supreme Court identified in Waller v. Georgia, 467 U.S. 39,
104 S. Ct. 2210, 81 L. Ed. 2d 31 (1984)[,] as fundamental to
the public trial guarantee. If the closure did not jeopardize or
subvert these values, which (1) ensure a fair trial, (2) remind
the government and judge of their responsibility to the
accused and importance of their functions, (3) encourage
witnesses to come forward, and (4) discourage perjury, it did
not offend the Sixth Amendment because the closure is
considered trivial."

United States v. Patton, 502 F. App'x 139, 141 (3d Cir. 2012) (internal

citations omitted) (not selected for publication in the Federal Reporter).

Other federal circuit courts and numerous state courts have also

concluded that an unjustified courtroom closure may be too trivial to

amount to a constitutional violation. See Gibbons v. Savage, 555 F.3d

112, 121 (2d Cir. 2009) (noting that a temporary courtroom closure can

be "too trivial to justify vacating [a] conviction"); United States v.

Anderson, 881 F.3d 568, 573 (7th Cir. 2018) ("In assessing whether a

closure rises to the level of a Sixth Amendment violation, we consider the

extent to which the closure implicates the values underlying the public

trial right …. A trivial violation that does not run afoul of those values

will not present a Sixth Amendment violation."); United States v. Perry,

479 F.3d 885, 890 (D.C. Cir. 2007) ("[E]ven a problematic courtroom

37
CR-20-0919

closing can be 'too trivial to amount to a violation of the [Sixth]

Amendment.' " (quoting Peterson v. Williams, 85 F.3d 39, 42 (2d Cir.

1996))); United States v. Izac, 239 F. App'x 1, 3 (4th Cir. 2007) (not

selected for publication in the Federal Reporter) ("While a defendant

generally has a Sixth Amendment right to a public trial, in certain

situations the exclusion of a member of the public can be too trivial to

amount to a violation of the Sixth Amendment."); and Bucci v. United

States, 662 F.3d 18, 27 n.5 (1st Cir. 2011) (recognizing that a courtroom

closure "could be characterized as 'trivial' "). See also State v. Telles, 446

P.3d 1194, 1199 (N.M. Ct. App. 2019) (acknowledging "the uniform line

of authority holding that a courtroom closure that is determined to be

trivial does not meaningfully infringe upon the values protected by the

right to a public trial"); People v. Lujan, 461 P.3d 494, 500 (Colo. 2020);

State v. Turcotte, 173 N.H. 401, 411, 239 A.3d 909, 918 (2020); State v.

Morales, 932 N.W.2d 106, 113 (N.D. 2019); Jeremias v. State, 124 Nev.

46, 52, 412 P.3d 43, 50 (2018); State v. Jones, 530 S.W.3d 525, 532 (Mo.

Ct. App. 2017); Douglas v. State, 511 S.W.3d 852, 854 (Ark. 2017); Smith,

876 N.W.2d at 329; State v. Northcutt, 381 Mont. 81, 88, 358 P.3d 179,

38
CR-20-0919

185 (2015); State v. Torres, 844 A.2d 155, 162 (R.I. 2004); and State v.

Small, 351 Wis. 2d 46, 56, 839 N.W.2d 160, 165 (2013).

In accord with those courts, I likewise believe a triviality analysis

in the context of public-trial claims is prudent and, in fact, necessary.

Without it, a defendant would be entitled to automatic reversal of his

conviction for any unjustified courtroom closure, "no matter how

inconsequential to the ultimate fairness of the trial." State v. Schierman,

192 Wash. 2d 577, 613, 438 P.3d 1063, 1081 (2018). However, as the

United States Court of Appeals for the Second Circuit has concluded, it

would be "unimaginable" to hold that every unjustified courtroom closure

– "no matter how brief or trivial, and no matter how inconsequential the

proceedings that occurred during an unjustified closure – would require

that a conviction be overturned." Gibbons, 555 F.3d at 120. Even the

United States Supreme Court, though never expressly endorsing a

triviality analysis, has acknowledged that "an unlawful closure might

take place and yet the trial still will be fundamentally fair." Weaver, 582

U.S. at ___, 137 S. Ct. at 1910. See also Williams v. State, [No. PD-0504-

20, Sept. 28, 2022] ___ S.W.3d ___, ___ (Tex. Crim. App. 2022) (noting

that the United States Supreme Court has "[n]ever rejected the triviality

39
CR-20-0919

doctrine"). And refusing to adopt this pragmatic approach when

reviewing alleged public-trial violations would give rise to serious

problems, as the Washington Supreme Court has aptly noted:

"[A] rule that completely forecloses the possibility of de
minimis[, i.e., trivial, public-trial] violations will often force
appellate courts to choose between two undesirable outcomes:
on one hand, a reversal that is a clear windfall for the
defendant and waste of resources for everyone else; on the
other, a holding that the public trial right does not attach at
all to the proceeding in question. The policy implications of
such a rule are troubling: it creates an incentive for appellate
courts to find more and more proceedings exempt from Sixth
Amendment and [state-law] protections altogether. This is no
doubt why there is no jurisdiction we are aware of that has
adopted a rule completely rejecting the doctrine of de minimis
closures."

Schierman, 192 Wash. 2d at 613-14, 438 P.3d at 1081-82.

To be clear, a triviality analysis is not the equivalent of a harmless-

error analysis, which I recognize is not applicable to public-trial claims.

See Ex parte Easterwood, 980 So. 2d at 374 (noting that "a violation of

one's right to a public trial is a structural error that is … not subject to a

harmless-error analysis"). In fact, a triviality analysis "differs greatly

from a harmless error analysis." Smith v. Hollins, 448 F.3d 533, 540 (2d

Cir. 2006). See also Anderson, 881 F.3d at 573 (recognizing that a

"triviality standard differs from a harmless error assessment"). A

40
CR-20-0919

harmless-error analysis necessarily begins with a determination that

error occurred, at which point the reviewing court will determine

whether the error affected the outcome of the trial or otherwise

prejudiced the defendant's substantial rights. Belcher v. State, 341 So.

3d 237, 278 (Ala. Crim. App. 2020). A triviality analysis, on the other

hand, "considers whether a closure amounted to any error at all," Lujan,

461 P.3d at 500, and, if the closure was in fact trivial, "then no

constitutional violation has occurred," which is to say that "there is no

need for a harmless error analysis, because there is no error." Williams,

___ S.W.3d at ___.

With these principles in mind, I turn to Darby's claim that the trial

court violated his right to a public trial when it "turned off the livestream

video and audio of the trial at various times." Before addressing those

instances, however, I first note that parts of Martin's affidavit did not

indicate that the trial court had "turned off the livestream video and

audio of the trial" but, instead, merely indicated that some of Det. Vogel's

testimony and some of the closing arguments had been inaudible or "hard

to hear." Thus, it appears that the spectators in the "remote viewing"

room were able to observe those parts of the trial but that Det. Vogel and

41
CR-20-0919

the attorneys were not speaking directly into the microphone or that

there was a technical problem with the audio. As one court has observed,

this issue "is not unique to trials proceeding under the COVID-19

protocols," and I have not found any case holding "that the failure of

counsel or witnesses to speak directly into a microphone," or that a

technical problem with courtroom audio, "deprives a criminal defendant

of a right to a public trial." United States v. Barrow, No. 20-127, August

13, 2021 (D.D.C. 2021) (not published in Federal Supplement). Indeed,

there may be instances in a trial when spectators who are actually in the

courtroom are unable to hear parts of the trial for those same reasons,

but this unavoidable reality does not mean the defendant was denied a

public trial. See United States v. Hwa, No. 18-CR-538, Feb. 11, 2022

(E.D.N.Y. 2022) (not published in Federal Supplement) (noting that

"even a seat in the courtroom does not guarantee that there never will be

a technical problem" and thus rejecting the defendant's argument that

broadcasting the trial to another room in the courthouse was not "an

adequate substitute for viewing the proceedings in person" because, the

defendant argued, "technical issues" could "ma[k]e the video feed

temporarily unavailable"). As to those parts of Martin's affidavit in

42
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which she did indicate that the trial court had "turned off the livestream

video and audio of the trial at various times," Martin indicated that this

type of courtroom closure occurred on three occasions. 4

The first closure occurred on the first day of trial when "the court

video feed was turned off after … the State rested." During that closure,

the trial court released the jury for the day, and the court and the parties'

counsel then discussed three issues. First, the State objected to a defense

witness's plan to use a visual aid during his testimony. (R. 731-35.) The

trial court ruled that the visual aid was inadmissible, and defense

counsel did not object to the court's ruling; in fact, defense counsel stated

that the court could "just rule on it" and that he would agree to "move

forward from there, whatever [the] ruling [wa]s." (R. 732.) Second, the

State sought to clarify the scope of a prior evidentiary ruling, and, after

the court clarified the ruling, defense counsel conceded that the ruling

was correct and stated that he had no intention of eliciting any testimony

that would violate the ruling. (R. 735-42.) Finally, there was a brief

4To be clear, when I refer to the "closures" that occurred in this case,
I am referring to those instances in which the trial court "turned off the
livestream video and audio of the trial," not the closure of the actual
courtroom and the decision to broadcast the trial to a remote public,
which Darby has not argued was improper.
43
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discussion regarding jury instructions; specifically, the parties' counsel

agreed that the trial court's proposed instructions on the burden of proof

were proper, agreed that it would be more efficient to discuss the self-

defense instructions after the defense presented its evidence, and

informed the court that neither party wanted any lesser-included

offenses submitted to the jury. (R. 743-51.)

The second closure occurred on the second day of trial when defense

counsel asked defense witness David Fail about some conversations he

had had with Parker regarding "how [Parker] felt about the police." (R.

781.) The State objected to the question, at which point the trial court

"turned off the court video feed." During a bench conference that

occurred outside the presence of the jury, the trial court sustained the

State's objection on the basis that the conversations were too remote to

provide evidence of Parker's state of mind at the time of his death. (R.

781-83.) The trial court then allowed defense counsel to make an offer of

proof to preserve Fail's testimony for the record (R. 783-86), and,

following that offer of proof, counsel called Officer Stuart Hartley of the

Huntsville Police Department ("HPD") to testify. According to Martin,

"the court video feed resumed" at some point during Officer Hartley's

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testimony; thus, it appears that the trial court inadvertently failed to

restart the "video feed" immediately after the bench conference that

preceded his testimony. Officer Hartley's testimony was brief, covering

only three pages of the transcript (R. 791-93), and the substance of his

testimony was that Parker had a tattoo on his chest that was associated

with "[w]hite supremacist groups" and "Nazi[s]." (R. 792.) Martin

acknowledged that she had heard Officer Hartley's testimony regarding

Parker's tattoo, but she claimed that she had not heard "what [Officer

Hartley] had previously said." Before testifying about Parker's tattoo,

Officer Hartley provided brief introductory information about himself,

including that he was the "gang coordinator" for the HPD and that, in

that role, he "take[s] information and intelligence from all the other units

within the [HPD] and … verif[ies] that information to do gang

identification around the city." (R. 791.)

The third and final closure also occurred on the second day of trial.

Following Cpt. McCarver's testimony, the defense called Officer Jason

Moore of the HPD to testify, at which point the State asked to approach

the bench. According to Martin, "a break was called" at that time, and

the trial broadcast did not resume until after the lunch recess, when

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"Officer Moore did not return to the stand." Thus, Martin noted, it "was

unclear whether there were any objections" to Officer Moore's testimony,

and "it was unclear why he didn't testify." During the lunch recess, the

trial court ruled that Officer Moore would not be allowed to testify

regarding an unrelated incident in which he "waited until he saw a

furtive movement by [a] suspect before he tried to fire his gun, and

because he waited he was shot before he could fire his weapon." (R. 872.)

According to the trial court, that unrelated incident was not relevant,

and, following the court's ruling, defense counsel made an offer of proof

as to Officer Moore's testimony. (R. 871-72.) After the lunch recess, the

trial court told the parties' counsel that a juror had informed the court

that he had once been "good friends" with a police officer whom he had

seen in the courthouse during the recess. (R. 874-75.) Defense counsel

noted that he did not think the officer was going to be a witness, but, out

of an abundance of caution, the trial court asked the juror if he would

give the officer's testimony "any more weight than any other witness" if

the officer testified. (R. 875.) The juror indicated that he would not afford

the officer's testimony any undue weight, and, regardless, the officer did

not testify.

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In short, what occurred during the three closures were four routine

evidentiary rulings (technically three rulings and the clarification of a

prior ruling), a brief discussion regarding jury instructions, the beginning

of a witness's testimony in which he identified himself as a police officer

and explained the nature of his duties, and a brief investigation into a

juror's relationship with a police officer who did not testify and who was

not involved in the case. I also note that the three closures collectively

covered 44 pages of the 825-page trial transcript. Thus, the public was

able to observe almost the entire trial, and, as I will explain, I do not

believe Darby's right to a public trial was violated by the three brief

closures that occurred.

As to the public's exclusion from the evidentiary rulings and the

discussion of jury instructions, other courts have held that "[n]on-public

exchanges between counsel and the court on such technical legal issues"

as "evidentiary rulings" and "jury charges" do not violate a defendant's

right to a public trial because they "do not hinder the objectives which …

[a]re fostered by public trials." United States v. Norris, 780 F.2d 1207,

1210 (5th Cir. 1986). See Smith, 876 N.W.2d at 330 (noting that "courts

have allowed nonpublic proceedings for evidence-related proceedings"

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and holding that "an issue of evidentiary boundaries" that occurred in

that case did not violate the Sixth Amendment); Reed, 302 Kan. at 242,

352 P.3d at 542 ("[E]videntiary rulings ordinarily pose no threat of

judicial, prosecutorial or public abuse that a public trial is designed to

protect against." (citation omitted)); State v. Smith, 181 Wash. 2d 508,

518, 334 P.3d 1049, 1055 (2014) (noting that "evidentiary rulings that are

the subject of traditional sidebars do not invoke any of the concerns the

public trial right is meant to address"); Smith v. Titus, 958 F.3d 687, 693

(8th Cir. 2020) (affirming a state appellate court's ruling that "a trial

judge's articulation of an evidentiary ruling" did not violate the

defendant's right to a public trial), cert. denied, 592 U.S. ___, 141 S. Ct.

982 (2021); United States v. Vazquez-Botet, 532 F.3d 37, 51-52 (1st Cir.

2008) (noting that there is "no precedent … extending the Sixth

Amendment public-trial right to an … offer of proof"); State v. Pendleton,

978 N.W.2d 641, 646 (N.D. 2022) (noting that "routine evidentiary

rulings [and] objection rulings … 'generally are not closures implicating

the Sixth Amendment' " (quoting State v. Martinez, 956 N.W.2d 772, 785

(N.D. 2021))); Morales, 932 N.W.2d at 113-14 ("Brief sidebars or bench

conferences ordinarily will not implicate the public trial right where they

48
CR-20-0919

are conducted during trial to address routine evidentiary or

administrative issues outside the hearing of the jury. For example,

arguments and rulings on objections and other routine evidentiary

matters that must be held outside the jury's hearing need not be

conducted so that the public can hear."); United States v. Vaghari, 500 F.

App'x 139, 150 (3d Cir. 2012) (not selected for publication in the Federal

Reporter) ("[T]he public … may be justifiably excluded from sidebar and

chambers conferences even when substantive rulings are made." (citation

omitted)); State v. Koss, 181 Wash. 2d 493, 501, 334 P.3d 1042, 1046

(2014) (holding that "in-chambers discussion of jury instructions did not

violate the constitutional right to a public trial"); State v. Miller, 179

Wash. App. 91, 103, 316 P.3d 1143, 1150 (2014) (holding that "the trial

court's in-chambers conference to discuss jury instructions … [did] not

constitute a closure"); and State v. Reeves, 268 A.3d 281, 291 (Me. 2022)

(noting that, during bench conferences and court recesses, "the court may

hear from the parties outside the sight and hearing of the public").

I likewise believe that no constitutional violation occurred in

Darby's trial when the public was excluded from four routine, mid-trial

evidentiary rulings and a brief discussion of jury instructions, all of which

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occurred outside the presence of the jury. 5 Furthermore, even if such

proceedings should typically be open to the public, I am confident that

the public's exclusion from them was trivial in this case. That confidence

stems from the facts that there were no disputed issues during two of the

evidentiary rulings or during the discussion of jury instructions and that

Darby has not argued on appeal that the other two evidentiary rulings

were incorrect. As noted, the primary purpose of a public trial is to

protect the defendant from an unjust conviction, Weaver, supra, and it is

difficult for me to see how this safeguard was undermined when Darby

has never alleged that anything erroneous or untoward occurred during

those proceedings. See Gibbons, 555 F.3d at 121 (noting, in holding that

5Excluding the public from a hearing on a motion to suppress, which
is conducted for the purpose of issuing an evidentiary ruling, will violate
the defendant's right to a public trial absent competing interests that
justify the exclusion. Waller, 467 U.S. at 47. However, there was no
closure of a suppression hearing in this case, and a suppression hearing
differs from routine evidentiary rulings that occur during trial in that "a
suppression hearing often resembles a bench trial" where "witnesses are
sworn and testify" and where the ruling "frequently depends on a
resolution of factual matters." Id. A suppression hearing also "commonly
determine[s] the outcome of the prosecution" and "involve[s] an attack on
the police and prosecutors," which means that it is "vital" for the public
to observe such hearings to "discourag[e] perjury and assur[e] that the
government comports itself responsibly." Edwards, 303 F.3d at 616. See
Norris, 780 F.2d at 1210 (noting the distinction between suppression
hearings and "routine evidentiary ruling[s]" that occur during trial).
50
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a courtroom closure was trivial, that the defendant had raised "no

objections … to anything that occurred" during the closure); Jones, 530

S.W.3d at 532 (noting, in holding that a courtroom closure was trivial,

that there was " 'no suggestion of misbehavior by the prosecutor, judge,

or any other party' " and " 'no suggestion that any of the participants

failed to approach their duties with the neutrality and serious purpose

that our system demands' " (quoting Weaver, 582 U.S. at ___, 137 S. Ct.

at 1913)); and Reed, 302 Kan. at 243, 352 P.3d at 542 (noting, in holding

that a courtroom closure did not violate the Sixth Amendment, that

"there were no allegations of government misconduct that required

circulation in the fresh air that accompanies public observation").

As to the public's exclusion from part of Officer Hartley's testimony,

closing the courtroom during trial testimony can certainly violate the

defendant's right to a public trial in some instances. See, e.g. Demouey

v. State, 202 So. 3d 355 (Ala. Crim. App. 2015) (holding that there was a

public-trial violation when the trial court closed the courtroom during the

victim's testimony). In this case, however, the only part of Officer

Hartley's testimony from which the public was excluded was his

introduction of himself and his explanation of his duties with the HPD.

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The public's exclusion from that brief and insignificant testimony does

not give me even the faintest concern that Darby was not tried fairly,

and, thus, I have no trouble concluding that the exclusion was trivial.

See Peterson v. Williams, 85 F.3d 39, 43 (2d Cir. 1996) (holding that a

courtroom closure was trivial, even though it had occurred during the

defendant's testimony, because the public had not "missed much of

importance as a result of the accidental closure"); Brown v. Kuhlmann,

142 F.3d 529, 541 (2d Cir. 1998) (holding that a courtroom closure was

trivial, even though it had occurred during brief trial testimony, because

the testimony concerned a "collateral issue"); and Gibbons, 555 F.3d at

121 (holding that a courtroom closure was trivial because "nothing of

significance happened" during the closure).

Finally, as to the public's exclusion from the trial court's mid-trial

questioning of a juror, several courts have determined that the right to a

public trial does not attach to such mid-trial investigations, see Ivester,

316 F.3d at 959; Morales, 932 N.W.2d at 119; and State v. Halverson, 176

Wash. App. 972, 977-78, 309 P.3d 795, 797-98 (2013), and at least one

other court has questioned whether it does, see United States v. Brown,

669 F.3d 10, 33 (1st Cir. 2012). Regardless, even if such investigations

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must generally be open to the public, the mid-trial investigation that

occurred in this case was, in my opinion, clearly trivial. As noted, the

trial court briefly investigated a juror's report that he had once been

"good friends" with a police officer whom he had seen in the courthouse

during a recess – a fact that could have resulted in the juror's bias toward

the State if the officer had testified or had been involved in the case.

However, because the officer did not testify and was not involved in the

case, the potential bias never materialized. Thus, nothing that occurred

during that investigation even remotely raises questions in my mind as

to whether Darby was "fairly dealt with and not unjustly condemned."

Waller, 467 U.S. at 46 (citations omitted). Therefore, I have no trouble

concluding that the public's exclusion from that brief and inconsequential

investigation was also trivial. See Brown, 669 F.3d at 33 ("We need not

determine whether the public trial right could ever extend in such

circumstances, but simply 'decline to recognize such a right on facts as

uncompelling as these.' " (quoting Vazquez-Botet, 532 F.3d at 52)); and

Gibbons, 555 F.3d at 121 (holding that a courtroom closure was trivial

because "nothing of significance happened" during the closure).

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In sum, the great bulk of Darby's trial was accessible to the public,

and those parts that were not accessible involved (1) routine evidentiary

rulings that either were not disputed at trial or have not been disputed

on appeal, (2) a brief discussion of jury instructions that also involved no

disputed issues, (3) brief and insignificant testimony from one witness,

and (4) a brief investigation into a potential juror conflict that never

materialized. The fact that the public was excluded from those parts of

the trial "hardly turned [the trial] into an 'instrument[ ] of persecution' "

that a public trial is intended to prevent, Brown, 142 F.3d at 541 (quoting

In re Oliver, 333 U.S. at 270), and the public was able to see that Darby

was tried and convicted fairly despite those brief closures. Indeed, I am

wholly convinced that there would be no additional assurance that Darby

received a fair trial had those closures not occurred. Thus, given the

specific facts of this case, I would hold that Darby's right to a public trial

was not violated.

None of this is to say that I condone the brief closures that occurred

in Darby's trial, and I caution trial courts that " 'the exclusion of any

spectator runs the risk of violating the Sixth Amendment, and,

accordingly, of requiring a new trial.' " Jones, 530 S.W. 3d at 532 n.3

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CR-20-0919

(quoting Braun v. Powell, 277 F.3d 908, 920 (7th Cir. 2000)). Thus, in

cases where the trial court provides a live broadcast of the trial to a

remote public, the best practice is for the court to allow the broadcast to

continue uninterrupted while the trial is in session. However, "on the

narrow facts presented here, [I am] convinced that any effect of the …

'closure[s]' on [Darby's] trial did not rise to the level of a Sixth

Amendment violation," Jones, 530 S.W. 3d at 532 n.3, because, to my

mind, there would be no further assurance that Darby received a fair trial

if those closures had not occurred. As the Washington Supreme Court

has noted, appellate courts "must … avoid enforcing the public trial right

in a manner so rigid and mechanistic that [they] do more harm than

good." Schierman, 192 Wash. 2d at 613, 438 P.3d at 1081. See also Hunt

v. State, 842 So. 2d 999, 1039 (Ala. Crim. App. 1993) ("To grant [the

defendant] a new trial under these circumstances [(the closure of certain

pre-trial proceedings)] would 'be a windfall for [him], and not in the public

interest.' " (quoting Waller, 467 U.S. at 50)).

One final point warrants mention before I address Darby's other

requested jury instructions. In arguing that the trial court violated his

right to a public trial, Darby makes much of the fact that the court

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"turned off the livestream video and audio of the trial" without

conducting what has been referred to as "the Waller test." Demouey, 202

So. 3d at 358. That test provides that a trial court may close criminal

proceedings to the public if the court (1) determines that doing so will

" 'advance an overriding interest that is likely to be prejudiced,' " (2)

ensures that the closure is " 'no broader than necessary to protect that

interest,' " (3) " 'consider[s] reasonable alternatives to closing the

proceedings,' " and (4) " 'make[s] findings adequate to support the

closure.' " Ex parte Easterwood, 980 So. 2d at 373 (quoting Waller, 467

U.S. at 48).

However, a trial court is required to satisfy the Waller test only

when the closure would otherwise amount to a constitutional violation.

For example, the closure in Waller occurred during a suppression

hearing, which typically must be open to the public. See note 3, supra.

In Ex parte Easterwood, supra, and Demouey, supra, which both relied

on Waller, the closures occurred during a witness's testimony, which also

typically must be open to the public. Thus, the Waller test was required

in those cases because the closures amounted to constitutional violations

unless the test was satisfied. But when a courtroom closure does not

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amount to a constitutional violation in the first place, as is the case with

the trivial closures that occurred here, the Waller test is unnecessary.

See State v. Brown, 815 N.W.2d 609, 617 (Minn. 2012) ("[T]he closure in

question was so trivial that it did not implicate Lindsey's right to a public

trial, thereby eliminating any need to conduct a Waller analysis.");

Ivester, 316 F.3d at 958 ("Before applying the Waller test …, we must

first determine whether the right [to a public trial] attaches to [the

proceeding in question]."); Perry, 479 F.3d at 889-90 ("The Waller test

applies … only if closing the courtroom implicates the defendant's Sixth

Amendment right."); Williams, ___ S.W.3d at ___ (holding that the Court

was not "bound to adhere to the 'strict' dictates of Waller" because the

triviality doctrine was applicable); Turcotte, 173 N.H. at 410, 239 A.3d at

917 (noting that the Waller test applies only if the closure implicates the

Sixth Amendment); United States v. Gupta, 699 F.3d 682, 689 (2d Cir.

2012) ("Absent the triviality exception, reversal is required here because

the district court failed to make Waller findings before excluding the

public from the courtroom." (emphasis added)); Zornes v. Bolin, 37 F.4th

1411, 1417 (8th Cir. 2022) (rejecting the petitioner's claim that "a

conclusion of triviality cannot be reconciled with Waller's demand that

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the court must identify an overriding interest for closure and consider

reasonable alternatives"); State v. Decker, 907 N.W.2d 378, 385 (N.D.

2018) (holding that a courtroom closure did not violate the Sixth

Amendment, even though the closure had been "made without proper

Waller findings," because the closure was trivial); Bowden v. Keane, 237

F.3d 125, 129 (2d Cir. 2001) (noting that the Waller test must be satisfied

for "non-trivial courtroom closures" (emphasis added)); and People v.

Turner, 519 P.3d 353, 361 (Colo. 2022) (holding that a non-trivial

courtroom closure "implicated the Waller test").

II. Darby's Other Requested Jury Instructions

In addition to arguing that the trial court erred by refusing to give

requested instruction no. 35 – the claim that the Court holds entitles

Darby to relief – Darby also argued that the trial court erred by refusing

to give requested instruction no. 33 and requested instruction no. 34. I

find no merit to those claims.

A. Requested Instruction No. 33

Requested instruction no. 33 stated:

"Where police orders to drop a gun have gone unheeded,
an officer is not required to wait until an armed suspect has
drawn a bead on, or point[ed] the gun, at the officers or others
before using deadly force."

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(C. 210.) According to Darby, the omission of that instruction prejudiced

his defense because, he says, it "prevent[ed] the jury from hearing that

[he] could be justified in using deadly physical force even if Parker didn't

point the gun at [him] or another officer." (Darby's brief, p. 47.)

However, although the trial court did not give requested instruction

no. 33, it did instruct the jury as follows:

"The rule of self-defense is that persons may and must
act on the reasonable appearance of things. It is not required
that where a person is menaced he just wait until a weapon is
presented ready for deadly execution."

(R. 1089.) That instruction clearly informed the jury that Darby's use of

deadly force might have been justified even though Parker never pointed

his weapon at the officers, and it is well settled that a trial court does not

commit reversible error by refusing to give a requested jury instruction

if that instruction is " ' "substantially covered by the [trial] court's

charge." ' " Johnson v. State, 168 So. 3d 163, 167 (Ala. Crim. App. 2014)

(quoting Ex parte R.D.W., 773 So. 2d 426, 429 (Ala. 2000), quoting in turn

Dill v. State, 600 So. 2d 343, 353 (Ala. Crim. App. 1991)). Thus, I would

not hold the trial court in error for refusing to give requested instruction

no. 33. See Perryman v. State, 558 So. 2d 972, 979 (Ala. Crim. App. 1989)

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(holding that the trial court's refusal to give the defendant's requested

instruction was not error because the court's jury charge " 'substantially

and fairly' " covered the instruction, "though not by identical language"

(quoting § 12-16-13, Ala. Code 1975)).

B. Requested Instruction No. 34

Requested instruction no. 34 stated:

"Escalation into deadly force is justified by a person's
refusal to comply with officers' commands to drop his gun if
the officers reasonable [sic] reacted to what they perceived as
an imminent threat to themselves. An officer's use of deadly
force must be objectively reasonable given the circumstances
of a tense, uncertain, and rapidly evolving crisis."

(C. 210.) As Darby notes, a crucial question of fact in this case was

whether he reasonably believed he was facing the imminent use of deadly

force when he shot Parker, and he argues that "[n]o other instruction

discussed how the jury could consider Parker's noncompliance with

lawful orders" when making that determination. (Darby's brief, p. 49.)

The only authority Darby cites for this instruction is Montoute v.

Carr, 114 F.3d 181 (11th Cir. 1997), in which the defendant police officer

was alleged to have used excessive force in violation of 42 U.S.C. § 1983

when he shot a suspect in order to apprehend him. In holding that the

police officer was entitled to qualified immunity, the United States Court

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of Appeals for the Eleventh Circuit concluded that, given the facts of the

encounter, the officer could have reasonably believed that the suspect

might fire his shotgun at the officer or someone else. The Court then

went on to state that the suspect's "unexplained refusal to obey the

repeated orders to drop the sawed-off shotgun provided an additional

basis for inferring that he presented a risk of serious physical injury to

an officer or someone else." Montoute, 114 F.3d at 185.

Montoute provides support for the conclusion that Parker's

noncompliance was a fact for the jury to consider in determining whether

Darby was facing the imminent use of deadly force when he shot Parker.

However, Montoute does not hold that Parker's noncompliance

represented the imminent use of deadly force as a matter of law, and the

State's evidence supported a finding that Darby was not facing the

imminent use of deadly force, despite Parker's noncompliance. In other

words, whether Darby was facing the imminent use of deadly force was a

disputed issue of fact, and requested instruction no. 34 focused on only

evidence that was favorable to Darby on that issue and thus tended to

frame that disputed issue in a light favorable to him. As this Court has

previously stated: "Under Alabama law, judges cannot comment on the

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evidence," and "a one-sided summary of the evidence by the trial court is

a forbidden comment on the evidence." Riley v. State, 875 So. 2d 352, 358

(Ala. Crim. App. 2003). See also Cameron v. State, 615 So. 2d 121, 124

(Ala. Crim. App. 1992) ("It is well-settled that 'the instructions of the

court in a criminal prosecution must not invade the province of the jury.' "

(quoting 23A C.J.S. Criminal Law § 1293 at 198 (1989))). Thus, because

requested instruction no. 34 would have served as an improper comment

on the evidence, I would not hold the trial court in error for refusing to

give that instruction. See Ex parte Brown, 581 So. 2d 436, 437 (Ala. 1991)

(holding that the trial court's instruction was improper because the

court's "summary of only the State's evidence amounted to a factual

determination" and "could reasonably have been taken to advocate the

State's version of the evidence"); and Cameron, 615 So. 2d at 126 (holding

that the trial court's instruction entitled the defendant to a new trial

because the instruction "tended to bolster" the State's evidence and "to

disparage the defense theory of the case").

62